“CAPITAL PUNISHMENT - NEED OR NECESSITY”

INTRODUCTION
The death penalty (sometimes known as capital punishment) is a kind of punishment in which a
criminal is condemned to death and subsequently executed by a court of law. It is the most severe
penalty that the law may inflict anywhere on the globe. It is the legal process by which courts
punish individuals who commit the most heinous and heinous crimes against society.
"No other penalty deters a man from committing crimes as effectively as the sentence of death,"
said an English judge, James Fitzjames Stephen. This is one of those statements that are difficult
to test simply because it is clearer than any proof could ever make it. Any secondary penalty, no
matter how horrific, offers hope, but death is death, and the terrors it brings cannot be sufficiently
conveyed.
For the worst offenses, the death sentence is viewed as the most appropriate punishment and
effective deterrence. Opponents, on the other hand, consider it cruel. As a result, the death
penalty's morality is disputed, and many criminologists and socialists across the world have long
advocated for its repeal.

ARGUMENTS: IN FAVOUR OF CAPITAL PUNISHMENT

People should get what they deserve in proportion to the gravity of their crime, according to one
of the basic concepts of retribution.
This argument claims that true justice necessitates individuals suffering for their transgression
and suffering in a manner commensurate with the offense.
Each criminal should receive the punishment that their crime deserves, and in the instance of a
murder, the offender should be executed.
Deterrence: The notion that executing convicted murderers will discourage would-be killers is
frequently used to justify capital punishment.
The death sentence is frequently suggested to give closure to victims' families.
There are several stories of people who have been sentenced to death using the time before their
execution to repent, express regret, and, in many cases, undergo great spiritual rehabilitation.
According to Thomas Aquinas, embracing death as a punishment allowed the offender to atone
for his wicked actions and so avoid punishment in the future life. It shows that the death sentence
can result in some types of rehabilitation.
ARGUMENTS: AGAINST OF CAPITAL PUNISHMENT
The statistical evidence does not support the idea that deterrence is effective.
Because of mental illness or a disability, some of them executed may not have been able to be
prevented.
Some capital crimes are committed in such an emotional condition that the offender is unaware
of the potential ramifications.
Even though death has been recommended in rape cases since 2013 (Section 376A of the IPC),
rapes continue to occur, and the savagery of rapes has grown dramatically. This leads one to
believe that the death penalty is an effective crime deterrent.
Innocent Individuals Being Executed: The most prevalent argument against death punishment is
that, sooner or later, innocent people will be executed because of human error.
According to Amnesty International, the possibility of killing the innocent will never be removed
if human justice is flawed.
Opponents of capital punishment believe that revenge is evil and only a sanitized form of
vengeance.
In most industrialized nations, death as a form of punishment has been abolished.
"Some 170 States have abolished or established a moratorium on the capital penalty, either in law
or in practice, or have delayed executions for more than 10 years," according to the UN Secretary
General's report on the death penalty given to the Human Rights Council. The prisoner is neither
rehabilitated nor returned to society when they are sentenced to death.

CAPITAL PUNISHMENT IN INDIA

A careful examination of the debates in British India's Legislative Assembly reveals that no issue
of capital punishment was raised in the Assembly until 1931, when Shri Gaya Prasad Singh, a
member from Bihar, attempted to introduce a bill to abolish the death penalty for offenses under
the Indian Penal Code. The proposal, however, was defeated after the then-Home Minister
responded to it.
Before Independence, the then-Home Minister, Sir John Thorne, expressed the government's
position on death punishment in British India twice in debates in the Legislative Assembly.
"The government does not believe it is wise to eliminate the death punishment for any crime for
which it is being used."
The Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898') and the Indian Penal Code, 1860 (‘IPC')
were among the laws in force when India gained independence from the British colonial
authority. The IPC stipulated six penalties, including death, that may be inflicted under the
statute.
If the accused is convicted of an offense punishable by death and the court sentences him to any
punishment other than death, Section 367(5) of the CrPC 1898 required courts to record reasons
why the death penalty was not imposed: If the accused is convicted of an offense punishable by
death and the court sentences him to any punishment other than death, the court shall state in its
judgment the reason why the death penalty was not imposed.
Section 367(5), CrPC 1898, was abolished by Parliament in 1955, dramatically changing the
position of the death penalty. The death penalty was no longer the norm, and judges didn't
require exceptional justifications for not enforcing it in situations when it was a mandatory
punishment.
When the Code of Criminal Procedure (‘CrPC') was re-enacted in 1973, several changes were
made, including to Section 354(3): When the conviction is for an offense punishable by death or,
in the alternative, by life imprisonment or a term of years, the judgment shall state the reasons for
the sentence awarded, and, in the case of a death sentence, the special reasons for such sentence.
This was a substantial change from the status after the 1955 amendment (when the death penalty
and prison sentences were both options in a capital case), and a reversal of the position under the
1898 legislation (where the death sentence was the norm and reasons had to be recorded if any
other punishment was imposed). Judges were now required to demonstrate extraordinary reasons
for imposing the death penalty.
In Section 235(2), these revisions also included the option of a post-conviction hearing on
punishment, including the death penalty:
If the accused is found guilty, the Judge must hear the accused on the issue of punishment, and
then pass a sentence on him according to law, unless he proceeds in line with the requirements of
section 360.

CAPITAL PUNISHMENT: CURRENT SCENARIO

1. Supreme Court on Capital Punishment and Its Stand in India
Article 21 of the Indian Constitution guarantees everyone's fundamental right to life and liberty.
It goes on to say that no one's life or personal liberty may be taken away from them unless they
follow a legal procedure. This has been interpreted legally to indicate that if a method is fair and
lawful, the state can deprive a person of his life by enacting a law.
While the federal government has said that the death penalty would remain in place as a deterrent
and for individuals who pose a threat to society, the Supreme Court has also supported the
constitutional legitimacy of capital punishment in the "rarest of rare" situations. The Supreme
Court upheld the constitutional legality of the death sentence in three cases: Jagmohan Singh vs
State of Uttar Pradesh (1973), Rajendra Prasad vs State of Uttar Pradesh (1979), and Bacchan
Singh vs State of Punjab (1980).
It said that a criminal can be sentenced to death if the capital penalty is authorized in the law and
the method is fair, just, and reasonable. This will only be done in the "rarest of rare"
circumstances, and the courts should give "exceptional grounds" before sentencing someone to
death.

2. Rarest Of Rare Requirements

The criteria of what constitutes the "rarest of rare" were spelled forth by the Supreme Court
in Bacchan Singh versus State of Punjab, a landmark decision (1980).
The Supreme Court established some broad illustrative parameters, stating that it should be
awarded only when the alternative of a life sentence is "unquestionably precluded". To reach this
determination, the court was given wide discretion.
The Supreme Court, on the other hand, established the idea of balancing, aggravating, and
mitigating factors. A balance sheet of aggravating and mitigating factors in a specific case must
be created to determine whether justice would be served if a sentence other than death is
imposed.
The Supreme Court ruled that two key questions may be asked and answered. First, is there
something unusual about the crime that makes a life sentence insufficient and necessitates the
death penalty? Second, are there circumstances of the crime such that there is no other option but
to impose the death penalty, even after giving the most weight to the mitigating factors in the
offenders' favour?

IS THERE ANY ALTERNATIVE TO CAPITAL PUNISHMENT?

As a reaction to objections raised in death cases, the Supreme Court has enshrined the
punishment of "whole life" or a life sentence of a set number of years. In the Swami
Shraddhanand case, the Supreme Court, in a three-judge bench judgment, established the
groundwork for this new punitive alternative as follows:
“It's possible to look at the situation from a different perspective. There are two elements to the
problem of sentences. A sentence might be excessive and unnecessarily severe, or it can be
woefully lacking. When an appellant comes to this Court with a death sentence imposed by the
trial court and upheld by the High Court, the Court may conclude, as it did in this instance, that
the case falls just short of the rarest of the rare and may be hesitant to uphold the death sentence.
However, given the nature of the crime, the Court may firmly believe that a sentence of life in
prison with remission, which typically equates to a term of 14 years, is excessively unfair and
insufficient. So, what should the Court do now? If the Court's punishment options are restricted
to two options, one of which is a sentence of imprisonment for all intents and purposes of not
more than 14 years and the other of which is death, the Court may be enticed and prodded to
support the death penalty. A route like this would be terrible. Expanding the alternatives and
taking over what legitimately belongs to the Court, namely the huge gap between 14 years of
imprisonment and execution, would be a considerably more just, reasonable, and proper path. It
is important to note that the Court would adopt the extended option since, given the facts of the
case, a sentence of 14 years in jail would be the equivalent of no penalty at all. Furthermore, the
formalization of a specific type of sentencing, even for a very small number of instances, will
have the significant benefit of keeping the death penalty on the statute book but using it as
infrequently as possible, in the rarest of situations..."

The Court has applied the findings in Swamy Shraddhanand to several cases, including Haru
Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar, Sebastian v. the State of
Kerala, and Gurvail Singh v. State of Punjab, where full life or a sentence of a certain number of
years was awarded instead of the death penalty.
CLEMENCY POWERS
A condemned prisoner can petition the President of India and the Governor of the State for
compassion if his or her appeal against capital sentence is denied by the Supreme Court.
According to Articles 72 and 161 of the Constitution, the President and Governors have the
authority to "give pardons, reprieves, respites, or remissions of punishment, or to suspend, remit,
or commute the sentence of any person guilty of any offense." Both powers are not personal to
the holders of the Office but must be utilized on behalf of the people (under Articles 74 and 163,
respectively).
While clemency powers can be used for a variety of reasons and on a variety of circumstances,
they can serve as the last line of defence against judicial mistakes or miscarriage of justice. This
places a heavy burden on those who wield this power, necessitating a thorough examination of
judicial records, as well as a wide range of inquiries, when deciding on a clemency petition,
particularly one from a prisoner facing a judicially confirmed death sentence who is on the verge
of execution.
The Indian government's Ministry of Home Affairs has created the "Procedure Regarding
Applications for Mercy in Death Sentence Cases" to help state governments and prison officials
deal with mercy petitions presented by death row inmates.

REVIEW FROM THE VIEWPOINT OF JUDICIARY OF THE MERCY POWERS

In the matter of Shatrughan Chauhan, the Supreme Court stated that before deciding on mercy
pleas, the Home Ministry considers the following factors:
a) The accused's personality (such as age, sex, or mental deficiency) or the circumstances of
the case (such as provocation or similar justification),
b) Cases in which the appellate court expressed doubt about the reliability of evidence but
still found the defendant guilty,
c) Cases in which it is alleged that new evidence is obtainable primarily to determine
whether a new investigation is warranted.
d) Where the High Court overturned an acquittal or increased the sentence after an appeal,
e) Are there any differences of opinion among the High Court Judges that would necessitate
a referral to a larger Bench?
f) Evidence consideration in determining blame in a gang murder case,
g) Prolonged inquiry and trial times, etc.
When the actual actions of the Ministry of Home Affairs (on whose recommendations mercy
petitions are determined) are examined, these principles were not followed in many cases. In
several situations, Writ Courts have investigated how the Executive has handled mercy pleas.
The Supreme Court considered 11 writ petitions contesting the Executive's denial of the mercy
petition as part of the Shatrughan Chauhan case.
Even when a mercy plea is denied, the Supreme Court last year ruled that judicial clemency
might be given based on undue delay.

REPORT OF THE LAW COMMISSION OF INDIA ON DEATH PENALTY

In its 262nd Report (August 2015), India's Law Commission proposed that the death penalty be
abolished for all crimes excluding terrorism-related offenses and war. The following are the
report's full recommendations:
  The Commission recommended that the government implement police reforms, a
witness protection program, and a victim compensation program as soon as possible.
 The progression of our jurisprudence from 1955, when special reasons were not
required for imposing life imprisonment instead of death, to 1973, when special
reasons were required for imposing the death penalty, to 1980, when the death penalty
was restricted by the Supreme Court to the rarest of rare cases, demonstrates the
direction in which we must go. The Commission felt that the time had come for India
to move towards abolition of the death penalty, informed by the expanded and
deepened contents and horizons of the Right to Life, strengthened due process
requirements in interactions between the State and the individual, and prevailing
standards of constitutional morality and human dignity.
 Even though there is no solid penological rationale for treating terrorism differently
from other crimes, there is frequently expressed fear that abolishing the death penalty
for terrorism-related offenses and waging war would have an impact on national
security. Given the legislators' concerns, the Commission saw no need to wait any
longer to take the first step toward abolishing the death sentence for all offenses other
than terrorism-related offenses.
 As a result, the Commission proposed that the death penalty be repealed for all
offenses save those linked to terrorism and war.
 In addition, the Commission genuinely expects that progress toward total abolition
will be rapid and unstoppable.

CONCLUSION
After considering the arguments for and against capital punishment, I have concluded that the
death sentence is ethically justified to a large extent. When a criminal commits a capital crime,
they should receive a punishment that is proportional to the crime, and it is widely believed that
the death penalty is the worst punishment possible because it not only takes away a criminal's
physical freedom by imprisoning them, but it also takes away their psychological freedom by
removing their ability to choose whether to live.
As a result, the claim that it is a harsh system is incorrect, because torture is avoided, and death
punishment is delivered compassionately in modern times. When a criminal is mercifully
murdered for his or her heinous crimes, it implies that they will be unable to re-offend after being
freed from jail, which is quite frequent, and even if they are not intended to be released, there is a
small chance of their escaping. This is extremely useful to society since it will boost the
confidence of innocent people who may otherwise be scared to leave their homes. As a result,
lethal punishment is preferable to the majority, making more people happy.
Capital punishment also serves as a deterrent to future criminals, deterring them from committing
capital crimes, therefore increasing public safety. Some say that capital punishment hasn't made a
difference in crime rates; nonetheless, the fact that it exists makes a country's criminal justice
system appear more serious, which deters future criminals. It's also hypocritical for the
government to murder as a kind of retaliation for murder. However, the legal system responds to
immoral behaviour by imposing a punishment that is proportional to the heinous crime; in these
circumstances, the death sentence is the sole option for murder.
The fact that the criminal refuses to learn and cannot modify his or her ways; yet it may be
argued that every human being is given one shot at life, and their morality is a personal choice
for which they must pay a price. To sum up, I feel that capital punishment is ethically correct
since it helps society tremendously, is administered compassionately, and is the only penalty that
is proportional to the offense.