This article is written by Keerthi Reddy.
Every saint has a past, and every sinner has a future. –R. Krishna Iyer, J.
Since time immemorial the topic of the death penalty has been the most controversial and oldest form of punishment in every society. The Death penalty is the most ancient and the strictest form of punishment that has existed, and it can be said that the death sentence was the fastest means for deterrence as well as retribution. There have been several arguments for abolition as well as retention of this severe punishment.
The capital punishment or the death penalty debate is the most crucial and relevant in India today. Primarily because capital punishment is an essential part of the criminal justice system in India. It can be said that capital punishment is justified when the crime committed is severe and is causing danger to society. On the other hand, the death penalty is abolished in the United Kingdom the last execution that took place was in the year 1964 it is important to note that the abolition of the death penalty did not come easy and it took a combined effort of the public and as well as the parliamentarians while on the other hand, the most recent execution in India was in the year 2015.
To take this debate further two largest democracies in the world have been considered (the United Kingdom and India) irrespective of both the countries being culturally and socially different it is worthwhile to consider them in the death penalty debate wherein one has lived through the horrors of death as a form of punishment and successfully abolished the practice. While the other has retained the same.
This paper will look into the history of the death penalty and its abolition in Britain as well as its reasons for its retention in India.
Abolition of the death penalty in the United Kingdom
If the history of the death penalty is looked at it can be seen that it was in the 10th century A.D that Britain had seen the death penalty in the form of hanging. It was not until the rule of William the Conqueror that the death penalty was abolished, but it was brought back with the reign of Henry VIII wherein it is said that about 72,000 people were executed. By the beginning of the 1700s in Britain people were awarded capital punishment for crimes such as marrying a Jew, treason.
In 1832 there was a rush to reform laws regarding crime and punishment in the United Kingdom. The ideologies of Bentham and Cesar Beccaria who were defenders of utilitarianism who believed that punishment is evil was relied upon by the then-home secretary Lord John Russell who looked forward to abolishing the death penalty and having alternatives to death. They also brought to light the question of whether it was a deterrent. It was concluded that the punishment of death awarded to a few selectively did not deter or diminish but increased the number of offenders.
As Lord John Russell stated ‘Death itself, for many, has no terrors; the passions of revenge, honour, love, despair, triumph over and despite it.’ Although such developments were taking place in Britain, an important question struck the home secretary that if death as a punishment would be reduced there has to be an alternative to, death and it was at that point that he considered transportation as an alternative to death for serious offences. On March 23rd, 1837 Lord Russell stated that the death penalty has to be limited to fewer offences because indiscriminate punishment through death it became an infective deterrent.
In 1841 another major reform came to the place which was the abolition of the death penalty for the offence of rape it was held that death would only be awarded for crimes of murder and treason.
The Deterrence Viewpoint
Deterrence had become one of the most important subjects to debate upon capital punishment in the parliament. Two most strong arguments were made when it came to the death penalty as a deterrent: Firstly, a murderer is not discouraged or even feared being hanged, and hence the death penalty was not a deterrent. Secondly, people are believed to no commit a crime merely because they fear punishment.
The fear is eminently more when punishment is death, and since people fear death more than anything else, the death penalty is the most effective deterrent. The Death penalty is also argued to be the most humane and painless form of punishment. Regarding India, it is also stated that because there are pardon powers given in the hands of the President and the Governor there cannot be a miscarriage of justice.
It was also the personal opinion of the Archbishop that the death penalty should be retained because it acted as a deterrent. He also opined that the death penalty could be limited to crimes such as murder.
One of the most critical systems of laws used for punishments in Britain between 1688 and 1815 was the ‘Bloody code’. The Bloody code was, therefore, a threat to all those people who would break the laws because most of the punishment would be done through public executions. The intention over here was clear to make these hangings act as a deterrent and to make sure others observe the law.
In the year 1868, the recommendation of the royal commission was taken into consideration, and there was an end to public executions and execution would now take place within prisons. The deterrence view/argument did not hold firm ground because even by the 1900s the number of people who were awarded the death penalty and that to the number of people executed hadn’t changed, and hence it had become an ineffective deterrent. In 1930 the movement of the abolition of capital punishment led to the formation of the Select Committee of the Parliament.
The parliament select committee in the same year recommended that the death penalty be abolished for a trial period of five years which was not adopted. Irrespective of not adopting the five-year period, there were continuous attacks on deterrence theory G.A Sutherland attacked the theory stating that hanging is the lowest of all the punishments and that one man was hanged or executed for every 11 murders.
The Silverman Amendment
The first attempt was made in 1947 by the then-home secretary Chuter Ede who introduced a Criminal Justice Bill to amend the Criminal Justice Act of 1911. This was identified as an opportunity by Sydney Silverman and he along with seven others tabled a motion to insert a clause into the Criminal Justice Bill which would suspend capital punishment for 5 years. It concluded that:
‘Our prolonged examination of the situation in foreign countries has increasingly confirmed us in the assurance that capital punishment may now be abolished in this country without endangering life or property, or impairing the security of society.’
Sydney Silverman believed that there was huge public support for the abolishment of capital punishment. This was supported by Reginald Paget who stated the citizen of a free democracy should not be made to live under the gallows-tree.
The house of commons also started acknowledging the change in public opinion. As stated by Dr. Summerskill the public has been educated over the years and that they have changed their minds and have concluded that hanging is an outdated method, but there was never really enough evidence to show the public support for abolition.
After a 10-month debate in the parliament regarding the abolition of the death penalty and efforts of Sydney Silverman being rejected a number of times (the 1948 and 1956 motion to abolition which was heavily defeated in the House of Lords) a Private Members Bill for complete abolition was finally presented to the House of Commons on December 4, 1964. It was also said that the two men who were on August 13, 1964, were the last ones to be executed in Britain. As debates continued for the abolition of the death penalty debates were focused upon the alternatives to capital punishment. The Public was not swayed that there was abolition. Members of parliament believed that a trial period would change their minds.
In the end Murder (Abolition of Death Penalty) Act 1965 was adopted the five-year amendment clause which was added to the bill in the year 1965 did not change the view of the public but instead made the abolition movement a little slower. The Murder Bill removed the classification of when a Murder was a capital/non-capital one which is made quite easy to know if any case would be tried for death under the Homicide Act.
Sydney Silverman’s believed that the sanctity of life is of utmost importance and that it could not be taken away by a government. He stated that if capital punishment is abolished in Britain, then society will only improve. The Act of 1965 did abolish Death Penalty for Murder as stated under the Homicide Act however death remained an option for a lot of other crimes. Irrespective of having subsequent attempts (1965-1994) to bring back capital punishment in the United Kingdom there was an end to the practice of using the ‘rope’ in 1998.
Retention of the death penalty in India
It seems to be a long quest to find a way to restrict human behaviour to confine to the norms & safety of society. There have been a plethora of ways to reform the criminals, but all have seemed to not deter the criminal from committing heinous crimes.
The Death Penalty has been one of the most controversial punishments of our times. It has been analysed & criticized by a lot of criminologists, jurists & sociologists. But all have failed to come to a common conclusion or an effective alternative to the punishment.
The punishment of the Death Penalty exists from the time of the Mughal period, where any offender especially a traitor was mercilessly awarded the death penalty. This effectively acted as a deterrent towards the commission of such offences.
The same deterrence theory was used by the British when they applied the death penalty as a punishment in the Indian Penal Code of 1860, which was drafted by Lord T.B Macaulay.
Many Indian martyrs were subject to the sentence, but, still, it failed to act as a deterrent yet it remained in the books even after they were long gone.
In India, the ambiguity concerning retention and abolition of the punishment has seen its own set of challenges. The debate was raised during several assassination cases and many heinous crimes cases, but it doesn’t seem to find a neutral way, with both retention and abolition having their strong grounds on reason.
The judiciary has played an essential role in bringing a balance between abolition and the retention debate of the death penalty. The Supreme court has kept in mind all necessary aspects before time and again denying that the death penalty should not be abolished it has looked at the public perspective as well as considered the developments taking on the global level and delivered many landmark judgments in this field.
In Jaganmohan Singh v State of Uttar Pradesh, the constitutionality of the Death Penalty was challenged on the basis that it was violating the Fundamental Rights guaranteed in the Indian Constitution. The Supreme Court, however, rejected this argument.
Krishna Iyer for the first time in Rajendra Prasad v The State of Uttar Pradesh emphatically stated that it was violating the Fundamental Rights; unfortunately, he was the dissent in the case. The Supreme Court again in Bachan Singh’s case emphasized in sec.354(3) of CRPC and said that the punishment was to be awarded only in the “Rarest of the Rare” case. It was the first time the Court came up with such a qualification.
The Supreme Court of India has taken the Principle from the United States. Nobody other than the United States has tried longer and harder to construct a legal system of capital justice that reaches only the rare and also right cases and has failed more conspicuously.
In 2009, 50 persons in India were sentenced to the Death Penalty which added to the Death Penalty population. Irrespective of the sentencing there is a meager execution rate. This purely exists because of the principle which has evolved and the procedure for the execution. The nod for the implementation lies with the President of India, who prefers to sit on such Death Penalty Mercy Petitions.
Reasons for retention of the Death Penalty
Salus Populi est Suprema Lex
The hanging of Md. Ajmal Kasab was a very significant milestone in the retentionist argument of India. He was a participant in the Mumbai terror attacks of 2008. His swift trail almost got over in 4 years. He was the only person to be hanged after 14 years. What made it so special, was his crime so different from the other 400 convicts facing the Death penalty. The answer for it would be that many executions will follow because the citizens of the country called his hanging.
It was seen as a terrorist attack that created domestic discord. It also pointed out the gravity of the offence and his participation in waging war against the state, the citizens demanded the hanging of Kasab. In this case, the court saw public fury and fear mainly on the terrorist organization, what makes this case a standalone and the shift in the court’s policy is the pure horror of the acts that were committed as compared to the terrorist acts which were carried on in the past.
The rarest of the rare doctrine is based on the requirement that the collective consciousness of the community has been shocked and the balance of aggravating and mitigating circumstances indicates that a sentence of life imprisonment would degenerate the seriousness of the offence.
Justice demands that punishment should be given bearing in mind the public abhorrence of the crime and also punishment befitting the crime. The court should also keep in mind the rights of the victim of the crime and society at large while imposing the appropriate sentence.
If an offender is awarded a life sentence there will be no deterrence for him from harming others because at that point he is already being served with the highest punishment which is imprisonment for life which is already given to him. And if an assumption is made that the death penalty is not going to create fear in the mind of the individuals and deter them then there can be no punishment that can deter them. Hence, this is one of the strongest arguments for the retention of the death penalty as a form of punishment.
The Stockholm Declaration, 1977
The above Declaration did not stand for the abolition of the death penalty but required that the punishment ought not to be awarded arbitrarily and must be confined to only to extremely heinous crimes. Thus, the Indian position is identical to the Declaration under Article 20 and 21 of the Constitution and Section 354 (3) of the CrPC.59.
Legislative Trends Towards Death penalty
There is a strong point in favour of the retentionist that even in spite of all these agitations against the imposition of the death penalty, section 354 (3) introduction Criminal Procedure Code, the legislative is in favour of retaining the death penalty, that is why legislature enacted two more re-enactment’s which provide the imposition of the death penalty only to prevent the commission of the crime. Under these acts, the punishment of death is not imposed for the offense committed, but it is just to prevent. The punishment inflicted is of preventive nature.
Article 21 of the Constitution
Article 21 of the Constitution states that ‘No person shall be deprived of life or personal liberty except according to procedure established by law’
The literal interpretation of the Article states that a person can be deprived of his life or liberty according to a procedure that must be established by the law. It clarifies that even if the death penalty is awarded to an offender it does not violate any fundamental rights guaranteed to him.
The campaign for the abolition of the death penalty in the United Kingdom was not easy it had its own set of challenges that were faced. At the end of it, however, the draconian punishment system was abolished by the parliament’s never-dying efforts irrespective of a complete view of the public against it. The public outrage for the offenders always remained at the highest and never wanted the death penalty to be abolished.
The United Kingdom has taken a strong stance on never using the rope again, and this position will never change because there has slowly but gradually been a shift in the ideology of how this mode of punishment is being looked at not just in the United Kingdom but also democracies around the world.
In the words of Professors Roger Hood and Carolyn Hoyle:
‘The situation on the global plane has undoubtedly moved towards universal abolition. Instead of abolitionists being on the weaker flank, constantly being called upon to justify their position, it is now the retentionists that are on the back foot.’
The position above however cannot be looked at in the world’s largest democracy India. India unlike the United Kingdom believes that the death penalty is the only way to deter criminals and believes that the death penalty when invoked it acts as a preventive measure. The public outrage is always taken care of and respected by the government of India. In India, the hangings are called by the citizens.
One believes that the abolition or retention of the death penalty does not depend upon a country’s social development but somewhat depends upon the leadership as seen in the case of the United Kingdom the efforts of Sydney Silverman. India today does not form part of 140 countries that have abolished the death penalty but gradually is making a move ahead towards bringing a balance by retaining it for offences relating to terrorism, waging war against the government, and the ‘rarest of the rare’ cases founded by the Supreme court.
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