Death penalty abolition or retention
For a long time death penalty has been a topic that is surrounded by controversy also the oldest form of punishment for every era death penalty is considered the most strict and the oldest ancient form of punishment.
that have existed capital punishment or the death penalty has always been the most relevant and important topic of debate in India and it should be important to come to light in India this penalty is given in the rarest of rare cases whereas if we look at other countries like the UK.
has abolished the death penalty last death penalty was practiced in 1964 in the UK it was not easy to abolish the death penalty in the UK but they finally managed to do that whereas in India last execution was performed in 2020 March in the Nirbhaya case.
Introduction
Society is made of two-component crime and criminals which has resulted in a disturbance in social peace and community is getting disturbed by the crime and criminals to deal with such issue government come with a punishment sentencing that should be in correspondence with the crime done by the individual means the nature of punishment should be equal to nature of the crime.
In the case of Suraj Ram versus the state of Rajasthan, the supreme court held that the state should consider the rights of criminals while awarding sentences to be fair but the state should also consider we can to get justice further court elaborated that the purpose of sentences the criminal should never be and unpunished and Victim should never be unsatisfied.
The most controversial punishment is the death penalty or capital punishment J.R.R. Tolkien said many that live deserve death and some that die deserve life.
Background
Death punishment is been practiced over the centuries in the 18th century BC King Hembury of Babylon performed capital punishment for 25 different crimes during the Mughal Era barbeque method also put offenders to death even the British use to used the hanging method to punish the offenders 14th century BC Kohli used this penalty in the 17th century this penalty was made for all kinds of crime by BC decorate Athens.
Also, Captain George Candle in the Jameson colony of Virginia in 1608 was first executed for spying on Spain in 1612, the death penalty was given even for minor crimes.
Retention versus abolition debate
Many people believe that they do not believe in capital punishment as it takes the life of a person which cannot be taken by anyone except God some believe that the penalty is the only solution to teach a lesson to criminals who perform severe crimes there were so many aspects of both abolitions somewhere promoting the moral values and ethics in favor to abolish the capital punishment others were looking in the theory of deterrence to provide justice to society and victims by hanging.
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Theory of deterrence
In the view of abolitionist abolished the person who commits a crime like murder or rape is not in his senses while performing such moment he remains in the inactive state of mind and he is not aware of what he is doing and what could be the consequences while performing such as he is lost in the wave of emotion, giving death penalty cannot do justice to him, moreover it can also not decrease the crime rate death penalty is an unnecessary act.
whereas receptionists said that fear of death is a deterrent if a person is in fear of death then he will think twice before committing some serious or any kind of crime, the punishment provides justice to the victims and stops the crimes that could happen in the future.
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Crime rate
Abolitionist argues that the penalty has no direct or indirect connection with crime rates this is just a custom or a procedure that is followed by the government it does not result in a decrease in the crime rate of the country this argument was taken from the study of theologist Stallin he in his study after collecting the data from the United State of America concluded that that penalty is just a custom it has no role in decreasing the crime rate.
Retentionists have the opposite view According to them capital punishment or death brings fear in the mind of the person who is thinking of committing any kind of crime does it directly or indirectly reduce the crime rate Professor Isaac in his article pointed out some loopholes in the study of Stalin according to him the work of Stallin’ neither develop nor tell the full range of implication.
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Society’s rights
Abolitionist stated that no one in the society has right to award death to any person the kind of punishment it can only be done through the act of God also Death punishment somewhere harm the human rights of the person whereas retentionist argued that since the right to death is only can be done through the God not through any person but to provide justice to the victims and the society accused must be punished in a fair way and with the fair punishment which is equal to his crime like murder rape terrorist attack cannot be tolerated and accused must be punished to death.
Retention in India
Dead penalty in India has been practiced for a very long time from the Mughal Era to British rule used to punish with capital punishment British applied the death penalty under the Indian Penal Code 1860 in 1931 on 27 January question of the abolition of capital punishment was raised by the Mr. Gaya Prasad Singh however this motion was rejected later Mr. Mukund Lal Agarwal introduced a bill of the abolition of capital punishment on August 23, 1956, in the first Lok Sabha of the republic of India it was later rejected but the discussion continued and topic of cropping down this punishment continued later in 1962 a resolution was passed by the
Parliament abolished the penalty in India but it also said that it would refer the question to the Law Commission based on the report of the Law Commission we will approve the death penalty.
A later law commission report was presented on November 18 1971 in which it observed that the death penalty does not need to be abolished after witnessing the present time but it recommends some severe changes they were
- Minor that is children below 18 years should not be sentenced to that.
- It is necessary to remove women from the death
- Statutory provision related to diminished responsibility in the statute book was unnecessary to be
- Attempting to commit suicide should be key to an offense in
Therefore, the law commission felt that capital punishment was an effective act and should not be abolished and was working in a great manner.
Constitutionality in Death Punishment in India
The judiciary has always played its role perfectly in maintaining the balance between the abolition and retention debate over the death penalty Supreme Court tried its best before denying the abolition of the death penalty for the retention of the same court also looked at the public views as well as concerned for the society and development on the global basis supreme court has delivered many landmark judgement relating to the death penalty.
In the case of Jagmohan Singh a state of Uttar Pradesh death penalty was challenged on the ground that it violated the fundamental right guaranteed under part 3 of the constitution later Supreme Court rejected this argument.
In Bachchan Singh versus the State of Punjab Supreme Court stated that Death punishment should only be awarded in the rarest of the rare cases which were embodied in section 354 class 3 of CRPC it was the first time the court came up with such kind of qualification for the death penalties.
Reason for retention of the death penalty
In Ajmal Kasab case who was the participant in the Mumbai terror attack in 2008, hanging was a major milestone his trial was over after almost 4 years and he was the only person who was hanged after 14 years his execution was special because his crime came under the rarest of the rare case also because citizens of the country demanded his hanging.
The doctrine of rarest of rare is based upon the requirement that the collective consciousness of the committee has been shocked and the balance of aggravating and medicating circumstances indicates that life imprisonment would degenerate the seriousness of the offense.
Article 21
Article 21 promotes fertility by creating the feeling of oneness in society article 21 does not use the word state and it has been done purposely as the article does not guarantee to the state whether it is guaranteed to all the people and the state has the constitutional duty to ensure that neither the state know the other are depriving anyone to his right to life and personal report article 21 does not expressly use the word state article 21 get the guarantee to the individual that in no circumstances the right to life and personal liberty will be violated the entire constitution is aimed and protecting the dignity of individual which many faces in the preamble.
But it also clarifies that even if the death penalty is awarded to an offender, it does not violate any fundamental right guaranteed to him.
Conclusion
The death penalty has its pros and cons it protects the dignity of society and provides justice to the victims but on the other hand, it may violate some rights of the accused still there are debates and research which are being done on this topic and this is a very broad topic which cannot be concluded which is one report or anything many researchers politicians have come up with their own and thoughts but nothing can justify whether a death penalty is necessary
Written By:-
Jyoti Singh
