Capital Punishment By Shadan Seraj At LEXCLIQ

Capital punishment, death penalty or execution is punishment by death. The sentence that someone be punished in this manner is a death sentence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally “regarding the head” (referring to execution by beheading).

Capital punishment has, in the past, been practiced by most societies, as a punishment for criminals, and political or religious dissidents. Historically, the carrying out of the death sentence was often accompanied by torture, and executions were most often public.

36 countries actively practice capital punishment, 103 countries have completely abolished it de jure for all crimes, 6 have abolished it for ordinary crimes only (while maintaining it for special circumstances such as war crimes), and 50 have abolished it de facto(have not used it for at least ten years and/or are under moratorium).

Nearly all countries in the world prohibit the execution of individuals who were under the age of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried out such executions. Executions of this kind are prohibited under international law.

Capital Punishment in India

India retains capital punishment for a number of serious offences. The Indian Supreme Court has allowed the death penalty to be carried out in four instances since 1995.

The Supreme Court in Mithu vs State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. 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. However, research by the People’s Union for Civil Liberties indicates that the actual number of executions is in fact much higher, as they located records of 1,422 executions in the decade from 1953 to 1963 alone. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. 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. In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC), which listed a number of capital crimes. It remained in effect after independence in 1947.

Under Article 21 of the Constitution of India, no person can be deprived of his life except according to procedure established by law.

Pros of Capital Punishment
It deters criminals from committing serious crimes. Common sense tells us that the most frightening thing for a human being is to lose their life; therefore, the death penalty is the best deterrent when it comes to discouraging people from carrying out the worst crimes.
It is quick, painless, and humane. The methods of execution have gradually become more humane over the years, so the argument that the death penalty is cruel and unusual is not valid.
The legal system constantly evolves to maximize justice. Just because it is feasible that a wrong decision could be made by the legal system doesn’t mean that the death penalty is wrong. Every effort is made in the US to give death row prisoners opportunities to challenge the court’s decisions. Modern methods of crime detection, such as DNA testing, also give greater certainty of guilt than existed in the past.
It appeases the victims or victims’ families. The death penalty can provide families of victims with some closure, which may help them to deal with their suffering.
Without the death penalty, some criminals would continue to commit crimes. It deters prisoners who are already serving life sentences in jail from committing more serious offenses.
It is a cost-effective solution. The idea put forward by abolitionists that it costs more to execute someone than imprison them for life is simply not true, and there is plenty of evidence to show this.
Retribution is not the same as revenge. Retribution is a necessary part of the punishment process—without it, the friends and family of the victims, as well as the public in general, would not feel that justice had been served.

Cons of Capital Punishment
There is no credible proof that the death penalty works as a deterrent. In the US, in states where the death penalty has been abolished, there has been no significant change in the rates for serious criminal offenses, such as murder.
It is a cruel and unusual punishment, where basic standards of human dignity are compromised or undermined.
It continues the cycle of violence. •Retribution is just another word for revenge—it is essentially just a form of the flawed thinking that two wrongs can make a right. The pro argument is that killing people is wrong; therefore, you should kill people for killing, which makes no sense. . .
It affects the poorer segments of society and racial minorities disproportionately, in part because they cannot afford the costs of good legal support. In the USA, although only 13% of the population is African-American, 50% of death row prisoners are African-American.
It is an old-fashioned and ignorant solution. America’s image would be improved in places like Europe if the death penalty were abolished. The places where executions happen regularly include repressive regimes like Iran, Yemen, and Saudi Arabia.
The justice system is bound to make mistakes. In the case of people who are wrongly imprisoned, they can be released from prison and given compensation, but a wrongful execution can never be righted.
The death penalty is not cost-effective. When all the practical and legal costs are taken into account, it is clear that the execution is more expensive than imprisoning for life.
• A life spent in prison is a worse punishment than an execution. A life sentence prisoner has many years to endure their punishment, as well as experience remorse and reflect on his or her crimes.
There are strong religious arguments against the death penalty. Life is sacred and God-given. Divine judgment comes in the afterlife.

Power of President

The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor-General, the President and Governors in independent India do not have any prerogative clemency powers.

Constitutional Power

Article 72(1) of the Constitution of India states:
The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.

Execution of Death Sentence
The execution of death sentence in India is carried out by two modes, namely hanging by the neck till death and being executed by firing squad.

a. Hanging
The Code of Criminal Procedure (1898) called for the method of execution to be hanging. The same method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of the above procedure reads as “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.”

b. Shooting
The Army Act and Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-

“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death”.

This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950.

Conclusion
Death as a penalty has plagued human mind perennially. Death sentence must fulfill the conditions for protection of human rights in Criminal Justice Administration in India.
Execution of Dhananjay Chatterjee in 2004, after fourteen years in death cell and thereafter in the year 2006 Md. Afzal’s instance of capital punishment again gave new impetus to the debate between abolitionists and retentionists concerning speedy justice, fair trial, protection of human rights of the persons under death sentence, their human dignity as well as the victimological perspective to maintain law and order in society.

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