Philosophical Side of Capital Punishment

The issue of whether the imposition of capital punishment or the death penalty is justifiable has received considerable attention. It is necessary to construct the philosophical foundations on which capital punishment is based. The death penalty has been used since the ancient Babylonian civilization. It was founded not on a philosophical framework during that time period, but on the uncivilised human tendency to conclude that death is the ultimate method of punishing people. Fear-based regimes used this as a key to enforcing the rules and norms of the time.

The statistical analysis now demonstrates a significant global opposition to the death penalty. Only 58 of the world's 198 nations actually use the death penalty. The majority of countries140 of them have rejected this punishment. Even if we Indians have a mentality that supports the death penalty, this is not the same attitude around the world. This makes it necessary to consider the death sentence in more complex terms.

The Socrates trial in the fourth century B.C. in Athens gave philosophical interpretations of the death punishment prominence. The first significant achievement of it was The Apology of Socrates, a well-known work by Plato. The modesty to embrace death was previously characterised by Socrates' well-known adage, "The unexamined life is not worthy of living." But despite having a lot of historical significance, it lacks the philosophical strength to live beyond times. Plato, in his book Republic, has ruled out the concept of justice as a means helping friends and harming enemies.

Take into account the actual circumstance in which a person who has committed a major crime is sentenced to years of prison term. He might carry out further crimes once he is free. Therefore, it is preferable to kill a person in order to preserve social order and tranquilly. By drawing comparisons to euthanasia and abortion, which both justify killing in the name of the individual's and society's best interests, this can be further rationalized.

However, when it comes to psychological issues, we are unable to forecast a person's changing behaviour. Giving credit where credit is due is plainly what an Aristotelian who believes in justice would claim. The retributive supplements it by saying that everyone who murders deserves to be put to death. These problems necessitate the conduct of a litmus test for death penalty. The factors of reciprocity, consequentiality, human rights, intention of law etc. are to be scrutinized. Considering the laws of India, USA and UK, which can give us a better idea of judicial and legitimate death penalties?

Death Penalty in India (Murder and Rape)

The death penalty is an option for punishment in India for offences covered by IPC Sections 121, 132, 194, 195A, 201, 302, 303, 305, 364A, 374A, 376E, 388, 389, 396, etc. In the scope of it, CrPC Section 354(3) also plays a significant role. For aggravated murder, rape that results in murder, rape that does not result in murder, treason, espionage, drug trafficking, and military offences, the death penalty is available in India.

Here, we'll talk about the problems with the death sentence for crimes including murder, rape, and treason. In the Armies Act, there are other ways to execute someone. However, we are purposefully avoiding it because the case is not what we are concentrating on.

It is not required that you receive the death penalty for a crime. The judge makes his or her decision based on how serious and extreme the crime was. According to Indian Penal Code Section 54, "In every case where a death sentence shall have been pronounced, the relevant Government may, without the offender's consent, commute the punishment for any other punishment authorised by this Code."

The judge has a wide range of options from which he might select the one who deserves it. According to Supreme Court standards, the death penalty is only imposed in extremely exceptional circumstances.

1. Murder:

   As per IPC Section 302, murder must be punished with death or life imprisonment, with fine. In the past, a criminal serving a life sentence in prison would have been executed for any murders he committed (Section 303).
   
   Later, in the Mithu v. State of Punjab Case, the Supreme Court overturned it. With the aid of some case analysis, we can delve deeper into the topic of the death penalty. Bachan Singh was found guilty of murder in the case of Bachan Singh v. State of Punjab, 1980, under Section 302 of the Indian Penal Code. He killed three people: VeeranBai, DurgaBai, and Desa Singh. He appealed to the Supreme Court against the High Court of Punjab's decision to execute him. The legitimacy of the sentence was examined in light of the fundamental rights to life and freedom.
   
   According to the reasoning, dying robs him of the seven liberties guaranteed by the Indian Constitution. However, the constitution itself does not preclude the state from imposing fair limitations on freedom. The idea of life was then taken into account. The court argued that the right to life cannot be justified if it conflicts with the greater good or with accepted moral standards. The consequentialist would be satisfied with this.
   
   We cannot come to the conclusion that the death penalty is constitutionally acceptable while upholding the right of a human to live. The appeal in this case was denied, and the defendant received a death sentence. However, the court opted to use the death penalty in this case only in gravest cases, when the mitigating factors and circumstantial forces don't overweigh the aggravating factors.
   
   The case has also interpreted Clause 3 of Section 354 of Criminal Procedure Code:
   "When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence."
   
   It means that, for rarest of the rarest cases, i.e. exceptional cases, capital punishment can be implemented. This rarest case is the case in which, death becomes a sine qua none for public interest. We can consider some more landmark cases for understanding other crimes for which, death penalty is given. It ranges from NathuramGodse, who was hanged for the murder of Mahathma Gandhi, to YakubMenon, hanged for the Bombay attack of 1993. We can consider the most important ones of it. Most of the death sentences were either due to the intensity of the crime or the considerations of social issues related to it.
   
   When India became an independent nation in 1949, the first death sentence was handed down. Because they killed Mahatma Gandhi, Nathuram Godse and Narayan Apte received death sentences 71 days before the Supreme Court was established. Although the crime committed by Godse was clear, Apte's involvement was not supported by enough evidence.
   
   Even before the trial was through, the death penalty was imposed. Concerning Apte's innocence, there exist disputes. Their case was strengthened by the accounts of the difficulties faced by Apte's family. Although we are unable to evaluate the validity of these claims, we are concerned about what may happen to the prisoners' relatives. The government can punish the guilty, but not the guilty person's family because they are not at fault.
    

2. Rape:

   We eventually arrive at the significance of the social issues associated with rape as a result of the rape issue. The causes of the crime, such as the techniques employed and the underlying conspiracies, are not as important as the societal repercussions that the crime may have on society.
   
   For instance, a person who rapes a kid under the age of 12 is subject to the death penalty under Section 42 of the POCSO. This isn't merely a result of the crime's severity when all the components of the crime are taken into account. The judgement would be constrained by the social context. The same crime committed by the person who killed a girl under the age of twelve is committed by the person whodid the same to a sixteen year old girl.
   
   But this difference is because; a 12 year girl is more susceptible to rape because of her inability to defend. Law gives more support to the one who is more disadvantaged. The principle that more stringent laws create lesser crimes is applied here. More of the punishments are intended to form a preventive nature to the crimes. But there is an ethical question related to the telos or intention of the people.
   
   Why should not a person commit a crime? Is it due to the fear of death? Orwas it due to the realization that it is wrong? This is not just the issue of capital punishment but the issue of all punishments. This undoubtedly reveals the coercive nature of law. This attracts criticism on law as a command, "You do this or you will face this". Even if such a limitation prevails, capital punishment is necessary to prevent surging crimes in India. On 20thMarch, 2020, four convicts of the Delhi rape case of 2012 were executed. The advocates of death penalty in such a case would be justifying those criminals.

Under Article 72(1) of the Indian Constitution, the President can pardon the convict, who was sentenced to death. Under the same law, Ex-President, Smt.PratibhaPatil has pardoned more than 30 criminals, even if some of them were charged for really serious cases. But in most of the cases, we can see the pleas getting rejected.

Why UK did abolish it?

UK is one of the 140 countries without a capital punishment law. Even though Britain had a policy of using the death penalty as a last resort in India, things were different there. Following the 1957 Homicide Act, which limited the number of persons who may be put to death each year, British law became more tolerant of the death sentence.

However, the Murder (Abolition of Death Penalty) Act 1965 later took its place and limited the use of the death penalty to four crimes: treason, espionage, violent piracy, and arson in a dockyard. It is noteworthy that after the final execution in 1964, not a single person received a death sentence. Even though the UK had a legislation that authorized the death sentence, in 1964. Even if UK had a law that legalized death penalty, it was out of practice in the country.

The last person who got executed was Peter Anthony Allen for the murder of John Alan West. The protocol issued by European Commission on Human Rights was supported by the House of Commons, which led to Abolition of it in UK, except in circumstances of war or in threat of war. The Human Rights Act, 1998, in general protects the right to life and in particular, abolishes the death penalty.

Everyone's right to life shall be protected by law, according to Article 2. No one may be purposefully deprived of life except when carrying out a court's judgement after a conviction for a crime for which this penalty is stipulated by law.

Its elimination was declared in the Sixth Protocol, with the exception of the kinds of war we covered above. However, it was replaced by the 13th Protocol, which completely abolished the death penalty in British law, in an amendment act of 2004. "Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings," the protocol issued by the European Human Rights Commission states clearly.

But the issue of the desert is still relevant. Whether someone who murders deserved to be killed? Even if abolitionism is supported internationally, the detractors of this statute continue to highlight the same concern. In a British poll, 70% of respondents said they agreed with the death penalty. This makes the issue of the death punishment murkier. A consequentialist argument is that even after being freed from prison, a person who committed significant crimes may still have a criminal streak.

He can then carry out other killings. The death of one can stop the death of thousands. However, only probability theories are used to determine the correctness of the query. How can the law set up a system to penalise an act that might or might not take place in the future, especially when it results in a death? This is the reason for the abolition of death penalty in UK. In UK, one can deprive another person's Right to Life only:

1. In defence of any person from unlawful violence;
2. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
3. In action lawfully taken for the purpose of quelling a riot or insurrection[1].

Capital Punishment in a Libertarian Nation: USA

The deprivation of life is contradictory to the libertarian ideas that place life and liberty as the most important fundamental rights. But the ironical fact is that USA is a nation that has not yet abolished capital punishment, even if it is guided by the glorious libertarian notions. In USA, treason, large scale drug trafficking, murder, murder attempt on any judicial personnel in certain etc.

The death penalty is enforced under Chapter 228 of Title 18, United States Code for any crimes covered by Sections 794 (collecting or delivering defence information to a foreign government) or 2381 (treason); or an offence under Section 3593, if the defendant intentionally killed the victim, inflicted serious bodily harm that resulted in death, participated intentionally in the act that directly resulted in the death of a person, or intentionally engaged in violent behaviour. The mitigating circumstances for murder listed in Section 3592 include the defendant's diminished capacity to understand the wrongfulness of the crime, extraordinary and significant coercion on the defendant, minor degree of participation, equally culpable defendants, no prior criminal record, mental disturbance, death with victim's consent and other circumstantial factors.

Its constitutionality was a hotly debated topic in the US. Its unreliability, arbitrariness, unconscious delays, and the prevalence of desertion in several US states were the issues that were brought up. Unreliability problems included bias, erroneous convictions and exonerations, and related problems. As reasons for arbitrariness, the effects of race, gender, and underfunding of capital defence were mentioned. The issue of the execution's inordinate latency was also brought up because it defeats the goal of it. Due to the court-imposed qualification for capital jurors, there is bias in the decision-making process. According to bias studies, a person's attitude toward the death penalty can undoubtedly influence a case.

The Eight amendment of the US Constitution was a prominently discussed matter regarding this. It states that, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted".Interpretation of this amendment in Furman v/s Georgia case led to abolition of death penalty in 1972.

Furman v/s Georgia case:
The case brought out the issue of discrimination and with statistical evidence has concluded that there is a racial discrimination in the commission of capital punishment.

The data from a famous publishing was:

Race Of The Offender By Final Disposition
Final	Negro		White		Total
Disposition	N'	%	N	%	N	%
Executed	130	88.4	210	79.8	340	82.9
Commuted	17	11.6	53	20.2	70	17.1
Total	147	100.0	263	100.0	410	100.0

The graph clearly depicts that the so called Negros have a high propensity to get executed, even if they form only a minority in US. White commuters are likewise a large population. This demonstrates that a White person who is facing the death penalty has a double the chance of surviving than a Black person. The case also takes into account a number of other pertinent factors, and it was determined that the death sentence had no effect on crime prevention.

The majority of the punished were blacks in USA. This problem has a number of causes. The first is the power of money and politics. Another one is the attitude toward people of colour. When power and wealth enable the wealthy to avoid punishment, the poor are denied access to a free defence attorney in cases involving capital penalties. Another aspect is that black people are more likely to commit serious crimes like mass drug trafficking and murder due to circumstantial factors.

The only way to overcome innate bias is through social advancement. A more egalitarian understanding of the social and legal systems is therefore required. Not only are crimes on the rise a result of human behaviour, but also as a result of social issues. There is an impending dilemma; can law sentence a person to death for a crime that occurred due to the circumstantial forces that led him into the crime?

Conclusion
As countries feel it important to avoid, the death penalty is still the most common form of punishment. The philosophical response they might provide is, "How can we defend their right to life when it is in conflict with the public interest or the rights of others?" Even though it violates human rights, many countries nevertheless view the death penalty as necessary to maintain the peace. However, the states must still give this matter the utmost consideration.

Many questions relating to it were left unanswered by the criminal justice system. The only way to fix a situation where politics, history, and economics have become divorced from the law is to reframe the unalienable relationship. If we don't interpret the legislation in this way, we won't be able to come up with a solution.

End-Notes:

1. Clause 2,Article 2,Schedule 1, Human Rights Act, 1998 https://www.legislation.gov.uk/ukpga/1998/42/schedule/1 last accessed on 3rd October, 2020