India being a democratic country is still a developing country. At the same time, the crime rates in India is increasing at a higher pace. There are lots of legislation in India to stop and control crimes, even though the crime rates are increasing because the punishments are not sufficient for the crimes. The punishment should be severe to reduce the crime rate. All punishments are based on the same motive to give penalty for the wrongdoer. There are different kinds of punishment in India such as capital punishment, life imprisonment, imprisonment etc.

Capital punishment is known as the most severe form of punishment. This article explains two major theories related to capital punishment, namely reformative theory and preventive theory. In this research the researcher also explained about rarest of rare cases. This article mentioned about abolitionist and retentionist countries, also capital punishment in ancient India. This article has a detailed view about the capital punishment in India and also the methods of execution in India.

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages other from doing wrong. The capital punishment also rests on the same proposition as other punishments.

Introduction
Punishment is the coercion used to enforce the law of land' which acts as one of the pillars of modern civilization. It is the duty of the State to punish the criminals in order to maintain law and order in the society. In the past, there wasn't any specific law or order for such crimes and the quantum and extent of punishment was largely dependent on the King. With time modern theories of punishment were developed and voluntary submission of our rights and power to maintain law and order was given to state.

The most brutal or we can say the highest punishment awarded in present time is Capital Punishment'. Capital punishment is the punishment which involves legal killing of a person who has committed a certain crime prohibited by the law[1]. Capital punishment is also known as Death Penalty' which is sanctioned by the government in which a person is put to death by the state as a punishment for the crime he committed.

Thus, philosophy behind the concept of punishment is not only to provide justice to the aggrieved but besides this to maintain security and safety in the society, to punish a criminal is not only to give torture to him or to humiliate, but there is a higher objective to be achieved and that is to establish a peaceful society. The concept of Punishment under modern jurisprudence is usually associated with the law of crimes.

Society at any stage of its growth has never been free from the problem of crime. It is inevitable since; some violation of the prescribed code of conduct is bound to occur. Crime in society is universal and is inseparable. [i] Lack of punishment creates a society which is incapable of maintaining civil order and citizen's safety. So punishments must be imposed on law violators.

Law exists to bind together the community. It is sovereign and cannot be violated with impunity.
Roscoe Pound observes; “Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice”.

A Global Background Of Capital Punishment

Some of the major questions arising in the minds of modern penologists are whether capital punishment or death penalty should be abolished or not. There are several states which are more inclined towards abolishing the death penalty while others prefer not to. For example, states like India, China and United States of America prefer dealing with the death penalty for certain crimes while states like United Kingdom and Canada have abolished it altogether.

Before dealing with the topic, it would be pertinent to explain the concept of punishment. Punishment depends on the crime committed and the reason behind the punishing the offender is to stop him or deter members of the society from committing the same crime again.

Currently 55 out of 196 nations of the United Nations Organization practice capital punishment as one of the form of the punishment. 105 nations out of 141 nations have abolished capital punishment completely.[2]

Ancient & Medieval Legal History Of Inflicting Capital Punishment:

The history of States enacting capital punishment goes back thousands of years to the Babylonian Empire in 1800 BCE.[3] Throughout history, capital punishment has been inflicted in various forms including but not limited to beheading, flaying, burning, throwing down steep rocky cliffs, crushing the head by an elephant etc.[4]

The Hammurabi Code of the Babylonian Empire in 1800 BCE prescribed capital punishment for about 20 different crimes including theft and perjury. Ancient Greece employed Draco's law of death penalty for all crimes, thus also giving literature the word “Draconian” meaning extremely harsh.[5]

During the Medieval period, public execution was considered as an accepted form of punishment in Europe, with beheading being the most common and replaced by hanging in the 10th Century AD.[6]

Modern Legal History Of Inflicting Capital Punishment:

Modern legal history of death penalty laws can be traced back to Britain. England, in 1668, had about 50 offences for which the punishment was death.[7] By the start of the 18th Century, this number rose to 222 crimes and included critagemes like making counterfeit stamps, felling of trees, stealing, robbing, etc.[8]

From the 18th Century, however, the trend in England was to avoid the death penalty and juries preferred to award transportation to American colonies. This was helped by the Transportation Act, 1717 which regulated the system of transporting criminals to work in American colonies with a term of indentured servitude.

The Judgment of Death Act, 1823 followed this trend of avoiding awarding capital punishment and made it discretionary for all the crimes save for murder and treason. By 1861, the number of crimes punishable with death were brought down to just 5 and included treason, espionage, murder, piracy and arson in royal dockyard. Later, in 1868, public executions came to be banned.[9]

Throughout the 18th and 19th Century, various European nations started abolishing capital punishment for various offences. In Britain, it wasn't until 1965 when the Murder (Abolition of Death Penalty) Act, 1965 was passed that death penalty for the crime of murder came to be replaced with a sentence of life imprisonment. By 1998, death penalty was completely abolished in United Kingdom.

The Legislations Of Capital Punishment In India:

India has, since the ancient times, had in its laws punishment b death. One of the more bizarre forms of capital punishment included being crushed by an elephant and was known as gungarao.[10] The Manusmriti prescribed death penalty for murders so as to refrain people from committing the act and to prevent a state of anarchy. During the Mughal period, offenders were dressed in buffalo skin and made to stand in the sun; the shrinking hide eventually led to the death of the offender who died in great agony.

All these practices were stopped under the British legal administration with hanging being the only form of inflicting capital punishment.[11] The Indian penal code (IPC) of 1860 prescribed death as the punishment for various crimes during the colonial era. It wasn't until 1931 that the issue of capital punishment was raised in the Legislative Assembly. This was done by Shri Gaya Prasad Singh, who wished to abolish the death penalty for offences under the IPC. However, his motion was never passed.

The Constituent Assembly Debates dealt with the question of capital punishment by questioning its judge-centric nature, the effect of the punishment among the families of the poor, the possibilities of error and its arbitrariness.

Pandit Thakur Das Bhargava commented during the debates on the capital punishment about the possibility of error where he stated that a person doesn't usually get justice in the courts and gave examples of cases of riots where it is often difficult to hold specific people liable. According to him, all person sentenced to death should get to be able to appeal the sentence as a matter of right.[12]

Dr. B.R. Ambedkar, the chairman of the Draft Committee of the Constituent Assembly, favored abolishing the capital punishment. He said that to end this controversy it's important to abolish death sentence and also stated about the principle of non-violence which has been followed by the nation for so long.[13]

After independence, capital punishment was sustained for various crimes under the Includer of Code of Criminal Procedure (CrPC) of 1898, courts were required to state reasons in their judgments if they provided a punishment other than capital punishment for offences where capital punishment was an option under Section 367(5).[14] The said section was repealed by the Parliament in 1955.[15] The 1955 Amendment Act also amended the IPC by substituting the punishment of “transportation for life” with “imprisonment for life”.[16] This Amendment was important as it signaled that capital punishment was not the norm.

The re-enacted CrPC, 1973 brought another reform in the death penalty laws. Under the amended Section 354(3), the courts now had to state special reasons for awarding a sentence of death.[17] There has, thus, been a change in the attitude towards inflicting death penalty. The judgments of the courts of India give us an insight into the direction which India is taking regarding its death penalty laws.

What Gave Sanction To The Death Penalty

If we take a closer look at history, we can see that what enabled capital punishment to become popular as a means of punishing the offender are the various theories of punishment. These theories directly reflect the thought processes behind supporting a punishment as harsh as the death penalty. These are:

1. Deterrence Theory:

   This theory aimed to deter or prevent a person from doing a crime or repeating it in the future. To enable this deterrence, harsh punishments are imposed by law so that a lesson or message can be sent to the other members of the society regarding the consequences of committing the same crime.
   The deterrence theory has two components: (a) punishment is awarded to the offender to prevent him/her from repeating the offence, and (b) presuming that the other people would not commit the same crime due to the fear of the punishment that would be awarded.
   The deterrence theory kept a check on the numerous crimes in the ancient and the medieval period and is still popular today. Deterrence has been taken as one of the most common rationale expressed for capital punishment. Specific deterrence is a kind of deterrence which aims to stop convicted offenders from committing a crime again. Invoking a death penalty serves as specific deterrence as the executed offender will not be able to harm society again.[18]
   However, the most common reason for the theory to prevail is the assumption of the people's fear of death more than the fear of being imprisoned. For this theory to work, it is to believe that nothing can be more sacred to a person than that person's life. It believes that while a person would be willing to accept a lesser form of penalty for a crime, he would not be willing to lose a life as penalty for the crime committed.[19]
    

2. Retributive Theory:

   The basis of this theory is the principle of “Lex talionis” which is a Latin for the principle of “an eye for an eye”. Retribution means inflicting punishment on the person as means of vengeance for committing a wrongful act. Thus, the objective of this theory is to take revenge and not reform the criminal.
   The idea behind this theory dates back to the earliest civilizations of human history with the Hammurabi Code of the Babylonian Empire stating that if man breaks the bone of another, his bones shall also be broken.
   Under this theory, there is a sense of moral responsibility. Thus, for example, if a person steals, he or she is morally responsible for stealing and because of this moral responsibility, he or she deserves punishment. Retributivists believe in the punishment being proportional to the offence.
   However, applying this theory strictly leads to counter-intuitive complications. For example, it leads to judgment that robbers should be robbed, arsonists must have their houses burned down and rapists should be raped.
    

3. Preventive Theory:

   The aim of the theory is to prevent the crime itself. It does this by keeping the criminal away from the society to prevent future crimes. Death penalty and life imprisonment are justified under this theory since they intend to keep the offender from entering the society again.
   
   Prevention has always been the principle aim of punishment. Even if punishment intends to inflict pain or loss on te offender, it would almost always aim to send a message to society about not repeating the same offence and consequences which repeating it would entail.
   
   With the death penalty, the criminal is permanently disabled from committing any other crime. There is an assurance that the offender will not be able to harm society again.

The Indian Courts' Changing Attitude On Death Penalty

In 1973, the case of Jagmohan Singh v. State of U.P.[20] was the first in several to challenge the death penalty laws in India. It was argued that the death penalty violated Article 14, 19 and 21 of the Constitution of India. It was also argued that the courts had unguided discretion in awarding the death penalty. What is interesting is that a decision of the US Supreme Court, in Furman v. Georgia[21], was also cited by the Petitioners.

The case of Furman[22] was a 1972 case in the US Supreme Court wherein the Court struck down all the schemes imposing capital punishment by holding that the death penalty was the constitution of a cruel punishment and violated the Constitution. However, this was merely a moratorium which lasted until 1976 when another judgment of the US Supreme Court in Gregg v. Georgia[23] reversed the earlier decision of the court and held that the imposition of the death penalty does not automatically violate the Eighth and the Fourteenth Amendment of the US Constitution, as was previously held in the Furman's case.

In Jagmohan[24], rather than following the principles of the Furman case which came before it, the Supreme Court held the death penalty as a permissible punishment which didn't violate the Constitution. The Court also said that the judges are given wide discretion in fixing the degree of a punishment due to the futility of laying down specific standards in criminal law. However, it should be kept in mind that this case came before the re-enacted CrPC, 1973 which made granting the death penalty an exception.

The question of what are “special reasons” for the passing of sentence of death under Section 354(3) of the CrPc, 1973 arose in the case of Rajendra Prasad v. State of Uttar Pradesh[25]. The Court held that the special reasons under Section 354(3) relate to the criminal and not to the crime itself. It also said that the retributive theory is no longer valid and that deterrence makes deprivation of life practicable. The case of Dalbir Singh v. State of Punjab[26] relied on Rajendra Prasad's decision to confirm a death penalty to two people who brutally shot and murdered three people.

However, in the same year in 1979, another bench of the SC noted the Rajendra Prasad case to be contrary to the Jagmohan case in Bachan Singh v. State of Punjab[27]. This case was then referred a Constitutional Bench which culminated in the landmark 1980 case of the same name (Bachan Singh).

In this case, the death penalty was challenged as being inhuman, cruel and degrading. It was argued that the main objective of giving a punishment is to reform and rehabilitation and not retribution. It was also argued that the purpose for which the death penalty was enforced, that of deterrence, had not been proven to be effective.

Out of the five judges in the case, four held the death penalty to be constitutional. The court said that the reasons for implicating a criminal to the death sentence should include both the circumstances of the crime and the criminal thus overruling the Rajendra Prasad case and affirming the Jagmohan case.

This case has been considered a landmark as the Court for the first time clarified and laid down the principle that the death sentence should only be awarded in the “rarest of rare” cases. It is quoted as saying:
A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”[28]

Prior to 1983, mandatory death sentences were awarded for certain crimes. The case of Mithu v. State of Punjab[29] held that mandatory death sentence is unconstitutional since it does not take into account the various circumstances of each case. By making the sentence mandatory for a class of persons, the Court said, the law effectively deprives the said class of their opportunity to be heard and neither is the court then obligated to perform its duty under Section 354(3) to record special reasons before executing a sentence of death.

In the case of Deena v. Union of India[30], the constitutionality of the death penalty was challenged but the court rather than delving into this question the court instead went into the question of whether execution by hanging was constitutionally valid. Holding that hanging does not involve humiliation, barbarity or torture, the court rejected the constitutional challenge to the method of hanging.

In T.V. Vatheeswaran v. State of Tamil Nadu[31], it was held by the Supreme Court that delaying the sentence of death by more than two years results in the violation of Article 21. However, the court also held in Sher Singh v. State of Punjab,[32] that a delay in enforcing the sentence of death was not entitle or convict to quash the sentence of death.

The 35th Report of the Law Commission in 1967 recommended that capital punishment be retained as it said that India could not risk experimenting with abolishing the death penalty.[33] This report was cited in Bachan Singh and the case of Shashi Nayar v. Union of India[34] sought to challenge Bachan Singh for placing reliance on the report from 1967, arguing for the abolishment of death penalty. However, the SC at the time refused to hear further on the issue due to the unstable law and order situation within the nation in 1991.

Thus, the issue remained at bay for some more time and subsequent cases followed the ratio in Bachan Singh. Under the IPC, death penalty is awarded for 12 different offences from treason to perjury causing death of an innocent. Section 364A states that any person who kidnaps or abducts another for ransom from the Government shall be punished with the death penalty. The case of Vikram Singh v. Union of India[35] was faced with the uestion that Section 364Ais unconstitutional, since Section 364A awards death penalty for a non-homicidal crime which shouldn't warrant such an extreme punishment. The SC however, denied the Petitioner's arguments and, upholding Section 364A, said that the death penalty is only awarded in the rarest of rare cases.

The Necessity Of Capital Punishment:

The death penalty has been in practice for several years and many of the societies around the world adopted it as to create a deterrent effect in the minds of people. The sole purpose of death penalty was to create fear in the minds of people and at the same time to eliminate the crime. [36]

In the modern reformative era, the retributive principle of tit for tat' does not serve any purpose in fact it somehow promotes people to take revenge and which leads to crime happening on the daily basis. For example, property belongs to father but after his death two brother fight for it due to unequal distribution of property. Therefore, retribution can only cause more harm rather than serving good for the society.[37]

The Convention of against Torture and Cruel, Inhuman or Degrading Treatment or Punishment does not consider imposing death penalty as a form of cruelty. India has ratified the ICCPR and is signatory to the Torture Convention but has not ratified it. The death penalty has been enforced in India even before independence and continued even after India was free on the colonial rule.

Suggested Measures And Conclusions:
Several judges, both from India and outside, have condemned the death penalty and termed it as a failed experiment.[38] Justice Bhagwati and Justice Krishna Iyer have time and again rose up against the death penalty in their judgment while the ex-Chief Justice of India, Y.V. Chandrachud, who formed a part of the majority bench in Bachan Singh's case, altered his views on the death penalty after his retirement and remarked that it both fails to deter criminals and insert fear into the minds of the criminals from committing a crime punished with death.[39]

We all can learn from the European Union in the way it deals with nations still retaining the death penalty as a way of reminding them that the death penalty is a practice which has reached its time to go. The EU has a ban on trading goods which can be used for execution of individuals or even their torture.

It has constantly voiced its reservations with regard to the death penalty in international forums such as the United Nations. [40]
An irreversible and violent act of punishment, we have seen why the capital punishment is irrational in nature. Spilling the blood of another man no way justifies how what the state only leads to the creation of more victims of legally sanctioned murder. We should all remember that killing the criminal does not kill the crime.

End-Notes:

1. Roger Hood, Capital Punishment, Encyclopedia Britannica, https://www.britannica.com/topic/capital-punishment
2. Abolitionist and Retentionist Countries as of July 2018, Amnesty International (1 July 2018).
3. History of Death Penalty Laws, Findlaw, Thomson Reuters, https://criminal.findlaw.com/criminal-procedure/history-of-death-penalty-laws.html.
4. Methods of Execution, Death Penalty Execution Center, http://deathpenaltyinfo.org/execution/methods-of-execution.
5. Supra, Note 4.
6. Execution in the middle Ages, History, https://www.history,co.uk/shows/britiansbloodiest-s dynasty/articles/execution-in-the-middle-ages.
7. Steven Wilf, Law's Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America (Cambridge University Press 2010
8. Michael H. Reggio, History of the Death Penalty, PBS Frontline, http://www.pbs.org/wgbh/frontline/article/history-of-the-death-panelty/
9. Supra, Note 2.
10. David Goran, Execution by Elephant: A strange method in Ancient India, The Vintage News, http://www.thevintagenews.com/2016/08/14/execution-by-elephant-a-strange-method-of-capital-punishment-in-ancient-india/
11. N.V. Paranjape, Criminology and Penology 353, (Central Law Publication, 12thed.2011).
12. Constituent Assembly Debates, 3rd June 1949, Part II.
13. Law Commission of India, July 1968, Report on the Punishment of Imprisonment for Life under the Indian Penal Code, Thirty-Ninth Report, Government of India
14. Code of Criminal Procedure,1898, Section , Section 367(5)[Repealed by the Code of Criminal Procedure (Amendment) Act,1955].
15. Code of Criminal Procedure (Amendment) Act, 1955
16. Law Commission of India, July 1968, Report on the Punishment of Imprisonment for Life under the Indian Penal Code, Thirty Ninth Report, Ministry of Law, Government of India.
17. Code of Criminal Procedure, 1973, Section 354(3).
18. Ivneet Kaur Walia, Reference of Deterrent Theory in Capital Punishment, Social Science Research Network (Dec. 18, 2009), http://ssrn.com/abstract=1525415.
19. Raymond T. Bye, Capital Punishment in the United States 31-40(George Banta Co., Menasha, West Indies 1919).
20. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.
21. Furman v. Georgia, 408 U.S. 238 (1972).
22. Ibid.
23. Greg v. Georgia, 428 U.S. 153 (1976).
24. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20
25. Rajendra Prasad v. State of Uttar Pradesh, (1973) 3 SCC 646.
26. Dalbir Singh v. State of Punjab, (1979) 3 SCC 745.
27. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
28. Ibid.
29. Mithu v. State of Punjab, (1983) 2 SCC 277.
30. Deena v. Union of India, (1983) 4 SCC 645
31. T.V. Vatheswaran v. State of Tamil Nadu, (1983) 2 SCC 68.
32. Sher Singh v. State of Punjab, (1983) 2 SCC 344.
33. Law Commission of India, September 1967, Capital Punishment, Thirty-Fifth Report, Ministry of Law, Government of India. Accessed: 17-01-2020.
34. Shashi Nayar v. Union of India, (1992) 1 SCC 96.
35. Vikram Singh v. Union of India, (2013) 16 SCC 450
36. Welsh S. White, Patterns in Capital Punishment, California Law Review (Sept. 2017), http://ndl.iitkgp.ac.in/document/MzJRbDBoWHpjMTdjUFQ3RTFJdG5nUmdyN1Qwc0haUFg3eiszR3QydlBRMD0.
37. Atkin I., Death Penalty, 1 British Medical Journal, (1956), http://ndl.iitkgp.ac.in/document/SGhmbVpJeXkyWlA4OFBMVHBtUjMxQlRzM0ZIdlUwWkZxKy9FZHRJLy9Waz0
38. Justice Blackmun, Callins v. Collins, 510 U.S. 1141 (1994).
39. Lethal Lottery: The Death Penalty in India, Amnesty International India and People's Union for Civil Liberties (Tamil Nadu & Pondicherry), Amnesty International (May 2008), https://www.amnesty.org/download/Documents/52000/asa200072008eng.pdf.
40. Death Penalty: Key Facts about the situation in Europe and the rest of the world, European Parliament, https://www.europarl.europa.eu/news/en/headlines/world/20190212STO25910/death-penalty-in-europe-and-the-rest-of-the-world-key-facts

Written By: Falguni Agrawal, Student 2nd Year, B.B.A. LL.B, New Law College, Bharati Vidyapeeth, Pune
E-mail Address: [email protected], Phone no: 7049930716