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Trending: Call for Papers Volume 3 | Issue 3: International Journal of Advanced Legal Research [ISSN: 2582-7340]

DEATH PENALTY AND ITS CONSTITUTIONAL VALIDITY – Srusti Das

ABSTRACT

Due to the significance of human existence, which opens the door to numerous sentiments and bonds in the loop of the essence, it has a major role in the community. Because of this, humans stand out among the other organic things in the world and are given value in this eternal universe. The phrase “capital punishment” can be used to refer to a situation that occurs when the State takes a person’s dignity after the appropriate legal process for a serious crime they have committed. However, the death penalty has existed in this modern world since ancient times, which are thought to be eternal. The entire history of mankind’s civilization has seen its practice. The twenty-first century has generated something unique in that it publicly acknowledges that the moment has come to eradicate the death sentence by formulating persuasive evidence and viewpoints and providing certain requirements under which it should be applied. As a result of awareness of this dilemma among some emerging nations, the death penalty has been abolished. Although India, a better-known developing nation, failed to reach a decision regarding the abolition of the death penalty, pardons have been granted inthe most exceptional circumstances. The death penalty notion is important to the system of criminal law even if there are numerous laws and sentences that are set forth in them. There are numerous problems in today’s society as a result of the death sentence. As a result, this essay expands on and exposes the general perspective on capital punishment in our nation. A deterrent punishment is founded on the same principles as the death sentence. In addition to dissuading potential repeat offenders, it entails penalizing one person for such hurt they allegedly did to the next. Victims of sexual abuse, mutiny, murder, and burning have all been executed for their crimes by the Greeks and Romans since antiquity. The dispute has long surrounded the death penalty, in India as well as in a number of advanced economies.                                                   

In its Charter of Rights, the U.S. designates the death sentence as treason against humanity and requests that its signatory states eliminate it. This article looks at the background of the death penalty, how it is being carried out in India and around the world, recent court rulings, and whether or not it is constitutionally permissible.

INTRODUCTION

An individual is executed by the government as retribution for a felony under the capital punishment or death sentence process. A death sentence is a court order that someone should be penalized in this way; an execution is how the individual is actually pronounced dead. Heinous crimes or grave misdeeds are crimes that carry the sentence of death. Nowadays, death sentences are not used in the vast large part of the world. But an international consensus opposing its usage has still not emerged. China, the nation with the largest population, kills hundreds of individuals annually, and the Us, the nation by far the most might, frequently employs it.   Eighty-four nations still use the death penalty. The amount of nations that still use capital punishment is, nevertheless, on the decline, and it’s likely that criticism and public perception on a global scale may eventually lead to the abolition of the death sentence in all nations.The doctrine of retributive justice is the fundamental defence of the death sentence. This argument holds that people who perpetrate such grave offences should also meet the exact end. Individuals are expected to anticipate the repercussions of wrongdoing because of the death penalty’s intended discouraging social impact.The British executed numerous Indians for rebelling against their control at the time ofcolonialism, either following the conviction or prior to it. Sucha penalty has, though, frequently been constitutionally attacked in the years since India got its independence. Per Article 21 of the Indian Constitution, when capital punishmentis imposed on a person, that person forfeits the right to life. The reason it is still in place is just to prosecute those felons who have undertaken serious offences barbarically and those who behaved in ways that are contrary to the civility that a rational person would exhibit.

HISTORY OF CAPITAL PUNISHMENT

As old as culture itself, the death penalty is a kind of retaliatory justice. From antiquity, a vast spectrum of misdeeds has been punished with the legal execution of death. The death sentence was applied by both the Greeks and the Romans for a diverse range of crimes.

In the third or second millennia prior to Christ, the emperor from one of the early empires created Hammurabi’s Code, a set of regulations. A sight for sight and a soul for a soul, according to this law, constitutes just punishment. Killing, along with a number of other offences like kidnapping and all, is punishable by execution according to the Bible.

Particularly serious felonies were subject to capital punishment in England by the year 1500 and numerous individuals were being executed annually as the legislature passed a number of additional criminal offences by 1700.

The 1861 Penal Code, which imposed the execution sentence for murder, was still in effect in India when it gained freedom in 1947.

Although numerous delegates indicated support for doing away with the death sentence while the Constitution was being written between 1947 and 1949, no measure was included in the document. In both chambers of government over the ensuing twenty years, individual member bills to eliminate capital punishment were presented, but neither one of those was passed. During 1950 and 1980, there were around 3000 and 4000 hangings, according to estimates.It is more difficult to quantify the number of people who were given death sentences and carried out executions between 1980 and the middle of the 1990s. According to estimates, two or three people are executed on average annually.   The Supreme Court of India stated in the Bachan Singh ruling that the death penalty must only be applied in the “rarest of rare” circumstances.

DOCTRINE OF RAREST OF THE RARE

According to this doctoral thesis, the death penalty shouldn’t be applied to somebody who has been found guilty of an offence unless every other legal option were pursued. The idea behind this rule stipulates that the death sentence ought to just be applied in extreme cases. Numerous proposals have been made for determining the rarest of rare occurrences, and the Supreme Court of India has periodically contested the standards for the rarest of rare circumstances. Crimes that are given the death penalty in India are aggravated murder, rape, terrorism, treason, and kidnapping.

POSITION OF THE DEATH PENALTY INTERNATIONALLY

IN AMERICA: In the USA, there are still 27 states that allow the death penalty, although the remaining 23 have removed it. However, not everyone agreed with capital punishment; Thomas Jefferson, the third American president, and prior treasurer Dr Benjamin Rush both opposed the death penalty and advocated for its abolition. Puerto Rico and the state of Missouri both eliminated the death sentence in 1917. Capital punishment became less popular towards the middle of the 20th century. The sentence of death was deemed “unconscionable”

by the U.S. Supreme Court in the decision of Furman v. Georgia, which led to its constitutionality. But in accordance with the newly enacted legislation, the United States SC ruled in the case of Gregg v. Georgia that the death sentence enforced by some regions was valid.

POSITION IN CHINA: Particularly serious crimes like aggravated murder are punishable by death in China, where it is frequently applied to convicts. However, it continues to prosecute those who engage in lesser offences like drug dealing in addition to penalizing those who undertake significant and violent crimes. Most individuals are executed there each year, even though it is thought that such a correct figure is far greater than whatever the documents indicate. The amount of capital punishment has indeed been projected to have decreased from 12,000 annually to 2,400 annually over the twenty-first century by the Dui Hua Institute, aUnited State based group.

POSITION IN BRITAIN: When someone received death sentences in the past, they were typically hanged. The tradition of cutting off heads was exclusive to such aristocracy until 1747. The far more popular method of capital punishment from the Saxon era through the twentieth century was hanging. The death sentence was, nevertheless, suspended in 1965 for a five-year exploratory stage until being officially repealed in 1969. Peter Allen and Gwynne Jones, who were both beheaded on a single day in 1964, were just the final persons to be put to death. Because capital punishment was severely eroded in the UK via the Human Rights Legislation.

INDIA ON DEATH PENALTY

The freedom to life and individual liberty, which involves the right to dignity, is guaranteed to Indian citizens by Article 21 of the country’s Constitution and cannot be taken away, under this article, unless it follows the legal process. It follows therefore only if a person has done something wrong can one question their life and personal freedom. As a result, the government may restrict or indeed eliminate a person’s right to live while adhering to the law and maintaining civil morality. But as determined in Maneka Gandhi v. Union of India, this method must be “due process” (1978). It is necessary to follow certain procedures while ending a living individual’s sacred existence. The SC of India ruled that section 303 is unconstitutional in Mithu v. the State of Punjab as it conflicts with both articles 14 and 21 of the Indian constitution. Non-governmental organizations in India aim to safeguard civil rights and end inhumane, humiliating, and brutal punishment.

The use of the rule on its own, as abundantly clear from such a multitude of situations, is in infringement of federal statutes, despite the fact that the judiciary has developed the conception of “rarest of rare cases” and has demonstrated that it applies for special causes that the capital punishment should be levied in situations of exemplary and exacerbating conditions where offences are quite serious in disposition.

Eminent lawyer and ex-SC judge of India Justice V.R. Krishna Iyer was personally opposed to the death penalty.

Justice Iyer holds that only Lord has the power to grant or deprive life.No one’s life may be taken from them by the state. Beheadings carried out by governments are inhumane. He added that Gandhi’s nation ought to demonstrate leadership by doing away with the death sentence. The state is not allowed to hang an individual, regardless of whether it is justified by a court ruling.When contrasted to the Indian context, the conditions of those who are receiving capital punishment are pretty appalling. The inmates on death row are subjected to both emotional and physical torment whilst they await the announcement of the day they’ll be condemned to death, according to several research done by various organizations.

CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY

The death penalty has experienced multiple multidimensional modifications, bearing along a variety of historical kinds of retribution. The Indian Penal Codeis the common domain and fundamental criminal law, classifies offences, and governs sentencing, is the place where capital punishment in India first appears. A life sentence is optional sentencing to the capital punishment provided by Section 53 of the IPC. As of right now, India recognizes death sentences as a valid method of retaliation. Only serious crimes are designated for the death penalty.

The issue of the death penalty in India has generated conflicting opinions; some people support preserving the penalty whereas others support abolishing it. The death penalty will only be permitted in the “rarest of rare circumstances” and for “specific reasons” in India, one of the 78 nations that have preserved it. The lawmakers or the Supreme Court have not yet clarified what constitutes the “rarest of the rare circumstances” or “exceptional causes.”Civil rights activists contend that now capital punishment in its present incarnation infringes a civilian’s fundamental right to life, which is guaranteed by the Indian constitution and susceptible to its forfeiture through the legal process. Per Article 14 of the Constitution, everyone is entitled to “equality before the law and equal protection of the law,” therefore implying that neither one may be deprived of their life or their individual freedom unless it is done so in accordance with a legal standard.

This article’s guarantees of fairness and justice and equality under the law indicate how no one may be subjected to prejudice except when it is necessary to uphold the fairness objective.

The Constitution’s preamble echoes the idea of equality found in Article 14.  As a result, the death penalty appears to be opposed to one’s right to live.This is declared by the Indian judiciary, which places a high value on the Indian constitution, which states in Article 21: “Protection of life and personal liberty.” Everyone in India is given the right to life by this provision, which states: “No individual shall be denied of his life or personal liberty, unless in compliance with the method prescribed by law.”   It means it can be taken away if complied with due process of law and the right to life is not absolute. With a special and rare reason and extraordinary circumstances given the constitution allows the death sentence to be upheld for some offences. The Constitution allows for the President to commute the death penalty. This provision encourages the legal system to re-examine again when capital punishment or the death sentence concern comes up.

POWER OF PRESIDENT AND GOVERNOR IN DEATH SENTENCE

An inmate on capital sentence may ask the president and governor for pardon after exhausting other legal avenues. The criminal must bring this plea from jail, whether directly or via a legal signatory. The Prez and Governors have the authority to suspend, dismiss, or shorten convictions in specific circumstances under Articles 72 and 161 of the Constitution. Just after the judges have rendered a verdict and imposed sentencing can the Governor and president lessen or revoke the term?

They shall act honestly and sensibly, subject to the authority granted Articles 72 and 161.Because the President has the authority to commute capital punishment and Military Court punishment, his or her authority per Article 72 exceeds the capacity of the Governor.

SUGGESTIONS

The death penalty is not a simple punishment, although it has been given to criminals who have done extreme and severe crimes in extraordinary situations. Taking someone’s life has never been easy doesn’t matter if that is a saint or a hardened criminal. It has always been controversial all over the world if the death penalty should be there or not. Many nations have abolished it many have not. In India, it is legally and constitutionally valid if it has been followed through constitutional and legal procedures. Every time the conflict and question aroused is mostly about morality and humanity. But imagine a criminal who has killed his or her entire family by beheading their head including kids and old members too simply to gain property of the family or because of some selfish gains, imagine a situation where the criminal has gang raped an innocent girl and destroyed her internal organs and private parts through metals and other potential weapons.

What do you think should be the punishment for these people? Don’t you think the death penalty will be so less for these people and there must exist something more, a very dreadful punishment which makes the criminal feel the wrong he did to these innocent people, it’s true that you can’t make the victims back to their old state by punishing the criminals but they will at least know that the people who have wronged them at least are paying back for what they did and not just roaming around happily or not just sleeping inside the jail cell peacefully? At least they will know, at least society will know you can’t just get away with our dreadful crime. At least it will create fear in the mind of the criminals not to do anything wrong in the future or at least make them think twice before doing anything. The people who do heinous crimes like those people who don’t value other people’s lives at all for only and only selfish gain or just to satisfy their lust don’t deserve to live a life. So, the death penalty which has been followed through proper and fair legal norms and has been awarded to criminals by following the rarest of the rare cases is just and valid.

CONCLUSION

The death sentence has indeed existed if you glance at its ancient history. It prevailed in British India, and emperors who governed over entire kingdoms were invariably sentenced to execution. Capital punishment was a part of the 1860 IPC, which was created during the British India era. Prior to 1955, capital punishment was the usual and a life sentence an exception; but, in the present day, life behind bars is normal and the death sentence is uncommon. According to two alternative ideas, the death sentence is still used in some US jurisdictions even though it has been outlawed in others, and other nations defend it internationally. The SC of India has upheld the death sentence throughout its several rulings, hence it has not yet been outlawed. The SC modified and unilaterally eliminated capital punishment, alleging it breaches Articles 14 and 21 of the Indian Constitution, despite the fact that this was done via many instances and with the passage of time. However, as things are right now, the death sentence is only used very rarely. The writers wish to draw the conclusion that, as was shown in the Nirbhaya case, during which there were numerous frantic attempts to prevent hanging, the death sentence should not be repealed. The retributive justice concept ought to be applied to deal with offenders in some situations where rehabilitative doctrine is not appropriate. The death sentence must not be entirely eliminated, in the writer’s view, because it still remains and has a deterring influence on the community. The death penalty should be used only in far more serious cases, and perhaps even if it is not a flawless deterrence and might cause some individuals to feel despair, it is nevertheless advantageous to society.

The death sentence has been decried as brutal, harsh, and a violation of an individual’s right to life all throughout the globe. The death sentence is still in existence in our nation, and they have steadfastly supported it. The sentence of death must only be imposed in the most extreme or exceptional circumstances, as the judiciary has made plain in a number of rulings.

Based on the evidence, we may conclude that only a tiny small number of severe crimes result in the death penalty being imposed. In light of numerous arguments as well as other circumstances, the death sentence has frequently gotten changed to imprisonment for life. The death sentence represents a threat to stop heinous and cruel crimes. However, although offenders have access to sufficient legal avenues under the Indian Constitution, which guarantees their protection.

Furthermore, it has also been emphasized that when an individual is handled in accordance with the legal process, their right to live is not an unqualified one. As a result, the judiciary’s use of the death penalty in situations in which the offender perpetrated a horrifying act that disturbs the general public is legally and constitutionally justified.

Furthermore, someone who fails to respect the lives, integrity, and security of others also is not entitled to any pity. Despite the fact that the tribunal has not specified the types of offences for which the death sentence will be granted, rape, aggravated murder, and treason must all be sentenced with severe punishments like death sentences.