Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual enforcement is an execution. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin word "capitalis", literally meaning "regarding the head"[1] (referring to execution by beheading).

Capital offence refers to any criminal charge which is punishable by the death penalty. Crimes punishable by death vary from state to state and country to country. In some American states these offenses may include first degree murder (premeditated), murder with special circumstances (such as intentional, multiple, involved with another crime, with guns, of a police officer, or a repeat offense), and rape with additional bodily harm, and the federal crime of treason. A charge of a capital offense usually means no bail will be allowed.

Criminological Approach Of Capital Punishment

When we talk of capital punishment, two theories of punishment, namely preventive theory and reformative theory occupy our minds.

"An eye for an eye will turn the whole world blind." - Mahatma Gandhi

This line by Mahatma Gandhi is the thrust of the Reformative Theory of punishment. The most recent and the most humane of all theories are based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crime. According to reformative theory, the aim of punishment is to educate or reform the offender himself. The Reformative theory is supported criminology.[2]

We know that "prevention is better than cure". The idea behind the preventive theory of punishment is to keep the offender away from the society. The offenders are punished with death, imprisonment of life, transportation of life etc. Preventive theory was supported by utilitarian law reformers because of its humanizing influence on penal law. In their view, it is the certainty of law and its severity which has a real effect on offenders.

The development of the institution of prison is essentially an outcome of the preventive theory of crime. The main purpose of preventive theory is to take such step as the accused person does not repeat the offence after enjoyment of sentence.

Capital Punishment: An Effective Deterrent To Crime:

There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the fundamental reasons for punishment of any kind. Since death is considered the harshest punishment available under the law, it seems logical that it must also be the most effective deterrent to crime. The English barrister Sir James Stephen remarked, "No other punishment deters men so effectually from committing crimes as the punishment of death."

"In any secondary punishment, however terrible, there is hope; but death is death; its terror cannot be described more forcibly."[3] The federal prisons now have custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three more murderers on three separate occasions- both of prison guard and inmates. There is no further punishment that he can receive. In effect, he has a license to murder."[4]

Capital Punishment In Various Countries

BRITAIN:
Hanging was the traditional form of capital punishment in England. However, it was not the only one. In England beheading was normally reserved for the highborn and it was last used in 1747. Hanging was the most common method of execution in England from Saxon times until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were hanged on the same day in 1964. In Britain the death penalty for murder was abolished for an experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held on the restoration of capital punishment in 1979 and 1994 but both times it was rejected.[5]

CHINA:
Capital punishment in the People's Republic of China is usually administered to offenders of serious and violent crimes, such as aggravated murder, but China retains in law a number of nonviolent capital offenses such as drug trafficking. The People's Republic of China executes the highest number of people annually, though other countries (such as Iran or Singapore) have higher per capita execution rates.[6]

Thirteen crimes were removed from the list of capital offenses in 2011, including smuggling of cultural relics, wildlife products, and precious metals. This brought the total number of capital offenses down from 68 to 55 though many of the crimes dropped from the list were rarely if ever punished by the death penalty.

Capital punishment is also imposed on inchoate offenses, that is, attempted crimes which are not actually fully carried out, including repeat offenses such as attempted fraud. The recidivistic nature of the offenses, not their seriousness per se, is what is adjudicated to merit the capital sentence.

INDIA:
Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no executions. Anti-death penalty activist dispute those figures, claiming much higher numbers on Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14 year old schoolgirl in Calcutta. This was the country's first execution since 1995. In 2005, about a dozen people were on the country's Death Row. It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the President.[7]

AMERICA (U.S.A.):
Capital punishment (also called the death penalty or execution) in the United States is limited under the Eighth Amendment to the United States Constitution, and, in practice, is used almost exclusively for aggravated murders committed by mentally competent adults.

Contemporary Status Of Capital Punishment In India

India retains capital punishment for a number of serious offences.1819 The Indian Supreme Court has allowed death penalty to be carried out only in 4 instances since 1995 in cases which were "rarest of rare and shakes the collective conscience of the community".

The Supreme Court in Mithu vs. State of Punjab 2[8] struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence.[9] Imposition of the capital punishment is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.[10] The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 52 people had been executed since independence.[11]

However, the People's Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total number of executions since independence may be as high as 3,000 to 4,300.23 In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty.[12]

In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty. The Supreme Court in Mithu vs. State of Punjab (1983) struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence.

The case of Bachan Singh vs. State of Punjab[13] challenged the constitutional validity of capital punishment and on the grounds that it was against the article 14, 19 and 21 of the Indian Constitution. But the Supreme Court did not consider it illegal and stated that capital punishment was to be granted only in "rarest of rare cases".

It was held in Jagmohan Singh vs. State of U.P.[14] that death sentence act as deterrence but as token of emphatic disapproval of the crime by the society, where the murder is diabolical in conception and cruel in execution and that such murderers cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Expediency of transplanting western experience in our country was rejected, as social conditions and so also the general intellectual levels are different.

The court referred to the 25th Report of the Law Commission of India, in which it was stated that India cannot risk the experiment of abolition of capital punishment. The fact that the possibility of an error being committed in the matter of sentence can be corrected by appeals and revisions to higher courts was relied upon.

Debate Over Its Abolition And Retention

Arguments For The Retention[15]:

1. Capital punishment acts as a deterrent:
   If the death sentence is removed, the feat that comes in the mind of people committing murders will be removed. "Do we want more of murders in our country or do we want less of them?" All sentences are awarded for security and protection of society, so that every individual may live in peace. Capital punishment is needed to ensure this security.
    
2. Elimination of the criminals:
   When the public peace is endangered by certain particularly dangerous forms of crime, death penalty is the only means of eliminating the offender.
    
3. Possibility of repeated murders:
   Society must be protected from the risk of a second offence by a criminal who is not executed and who may be released, after release may commit murder again.
    
4. Condition in India:
   In countries where capital punishment has been abolished, the figure of homicide is very low; four in a million, or even less than that.
    
5. Prison administration:
   Keeping murderers alive in the prison greatly complicates the work of prison administration. If all convicted murderers were imprisoned, safety of the prison staff and the general public from the dangerous prisoners would be at risk.
    
6. Saving of funds:
   Money of the citizens should not be spent on maintaining people who cause great harm.The taxpayers should not be called upon to pay for the maintenance of anti-social criminals for an indefinite or for a very long period.
    
7. Proportionate to crime:
   The punishment should bear a just proportion to the crime. Therefore, capital punishment is the only fit punishment for those who have deliberately violated the sanctity of human life.
    
8. More humane:
   Capital punishment in a painless and humane form is less cruel than imprisonment for life.
    
9. No miscarriage of justice:
   If there is miscarriage of justice in one or two cases, the higher courts can be approached. The whole machinery of the Government would be there to protect the life of a person who is really innocent.
    

Arguments For The Abolition [16]:

1. Capital punishment:
   should be abolished because it is a legalized, revengeful and cruel destruction of God's most wonderful creation, the human being.
    
2. Immoral:.
   Capital punishment is morally indefensible. Society has no right to take the life of any person. It is morally wrong for the State in the name of the law to take the life deliberately. In eliminating the criminals, it is stated; the State does not erase the crime, but repeats it.
    
3. Inhuman:
   Capital punishment is essentially inhuman. Death penalty is a form of cruelty and inhumanity unworthy of a humane civilization; even the most efficient methods of execution do not result in instantaneous and painless death. Humanity demands that capital punishment comes to an end.
    
4. Non-violence:
   Indian ideology is based on non-violence. Indian tradition is based on reformation of the mind and spirit. Where it was the opinion that only God could take away life given by him. Therefore a murderer should be sent to a penitentiary and there given every chance of reforming himself.
    
5. Irrevocable:
   Capital punishment is irrevocable. If an innocent person is sentenced to death and executed, the greatest injustice results. When as a result of an erroneous conviction, a man is sent to prison, he can be compensated. But death admits of no compensation.
    
6. Unjust:
   The sentence of death injures the family of the offenders, and thus imposes suffering on persons who have done nothing to deserve the suffering.
    
7. Unequal application:
   Death penalty is applied unequally. Some persons who have not sufficient financial means to defend themselves or are morally unable to do so, suffer.[31] The penalty, therefore, which should be the expression of absolute justice, often leads in practice to injustices against individuals.

In the wake of above discussion and ground realities of present day world following conclusions can be drawn: The opposition to abolition of the death penalty stems from the myth that it will lead an increase in the number of murders. The fact is that in the state of Travancore there were 162 murders between 1946 and 1950 when the death penalty was not in force, But in the five years from 1950 when it was re-imposed, there were 967 murderers. It has been argued that it is not possible to fight such crimes by framing law.

What we need is to target the root of crime. Even Krishna Iyer J. conceded in Rajendra Prashad's case that death penalty may be awarded where the killer is such a monster or a beast that he can never be reformed. Criminals, who can be hired to kill anyone or to throw a bomb in a crowd killing many innocent men, women and children, deserve no sympathy.

We cannot ignore the interests of the community or the country while considering whether death sentence would be appropriate in a particular case. So far as juveniles are concerned they have to be dealt with under the appropriate Acts for juvenile offenders and there is no question of awarding death sentence in their case.; Thus, after taking into consideration the interests of the individuals on the one hand and interests of the community on the other, it would be highly imprudent to abolish the death penalty.

End-Notes:

1. http://www.legal-explanations.com/definitions/capital-punishment.htm.
2. Dr Syed Mohommad Afzal, Criminology, Penology & Victimology 260(Eastern book company, 7th edition, 2016).
3. Quoted by Leonard A. Stevens in Death Penalty: The Case of Life vs. Death in the United States (New York: Coward, McCann & Geoghegan, 1978), 73.
4. Bring Back the Death Penalty, U.S. News & World Report (April 1976); reprinted in The Death Penalty, ed. Irwin Isenberg (New York: H.W. Wilson, 1977), 133.
5. http://www.localhistories.org/capital.html.
6. Fan, Maureen; Cha, Ariana Eunjung (2008-12-24). "China's Capital Cases Still Secret, Arbitrary". The Washington Post.
7. http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html.
8. AIR 1983 SC 473.
9. Venkatesan, V. (7 September 2012). "A case against the death penalty". Frontline. Retrieved 25 September 2022.
10. capital punishment (law) - Encyclopedia Britannica". Retrieved 2022-09-26.
11. Number of executions much higher than 52. Times of India. 10 March 2005.
12. General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings". ANNEX VI. Retrieved 26 September 2022.
13. AIR 1980 SC 216.
14. (1991) 3 SCC 471
15. Law Commission of India, 35th Report Volume I-III (Capital Punishment) September 1967, Ministry of Law, Government of India.
16. Law Commission of India, 35th Report Volume I-III (Capital Punishment) September 1967, Ministry of Law, Government of India.