Capital Punishment- Historic Perspective and Justification
Background or Punishment
The history of punishment is as old as the human civilization. Man opted for living in community as this was safer and covenient. But benefits of living in society were not without sacrifice. It was necessary to adhere to law and regulations made for common good and orderly functioning of society.But there are always elements in society who would defy the law and consider their own interest above that of society. They need corrective measures. This need for correction or compelling erring members of society to adhere to law gave rise to system of punishment.
Punishment may be in form of inflicting pain or denying pleasure and facility. Thus, imprisonment, fine, flogging, amputation of limbs and death punishment- various forms of punishment emerged. Flogging, amputaion of limbs and death are considered barbaric and abolished in many countries. In India, death sentence still remains in penal code but this is enforced only in rarest of rare cases. The other forms of punishment in India are imprisonment and fine.
What is capital punishment
Capital punishment or death penalty is legal process of causing death by state as a punishment. The term 'capital punishment' originates form Latin 'capitalis' which literally means 'regarding the head'. As death penalty was carried out by cutting head from the body, this was known as capital punishment.
Current practice on capital punishment
Capital punishment was very common in past. King's word was law. Capital punishment was awarded even for minor crimes. The quantum of punishment was at sole discretion of authorities. There were very cruel methods of executing- trampling under elephant's feet, throwing before a hungry tiger. stoning etc. Currently 58 nations actually practise this and 97 countries have abolished.
United nations favors abolition of capital punishment
In the past, objective of punishment was to retaliate and revenge. so eye for eye, death for death were punishment. Amputation of limbs and death sentence were retaliatory and also considered detterants. But the modern thinking is that of reforming a criminal. Hate the sin and not the sinner- is the current motive for punishment. Death punishment eliminates the sinner and does not reform him. In a way, death sentence is admission by society that the criminal cannot be reformed. Amnesty Internastional plays a big role in promoting humanitarian approach in matter like capital punsihment. According to Amnesty International, most countries favor abolition of death penalty. The United Nations General Assembly adopted non binding resolutions in the years 2007, 2008 and 2010 that called for a global moratorium on executions, with a view to eventually abolish. Capital punishment has been abolished in many countries. But there are still countries with big population yet to abolish executions. These include China, India, U.S.A. and Indoneszia. However, this applies only in rares of rare cases in India. Also, this is rare in Indonesia and many places in United states of America.
Execution of criminals and political opponents has been used in all countries. In the recent history, Z.A. Bhutto, a noted leader and ex President of Pakistan was executed by Zia Ul Haq Regime on murder charges. Generally, this is for murder, espionage, treason or as part of military justice. In many Islamic countries, offences like rape, adultery, incest and sodomy also carry death penalty. There were various modes of carrying out death punishment. These include trampling under elephant feet, throwing before hungry lion, crucifixion, stoning to death etc.
Debate on capital punishment
Capital punishment is a highly debatable issue. The international organizations- Amnesty International aim at abolition of death penalty. Right to life is a fundamental right. However according to some thinkers, notably Locke and Blackstone, Right to live can be forfeited. Many opine that death penalty is justified in heinous crimes like mass killing, multiple homicide, child murder, torture murder, terrorist actions. On the other hand, opponents of capital punishment contend that retribution is just revenge. Reform and not revenge should be objective of punishment. Others accept retribution but argue that life imprisonment without facility of parole is an effective alternative to death penalty. In their opinion, capital punishment violates human rtights. This view is contrary to classical view that right to live is liable for forfeiture for grave misbehavior. Capital punishment is also opposed because there is likelihood of execution of the innocent people. Another issue is quality of defence of the accused. The public defender provided to defend the accused may not be competent enough. Moreover, often improper procedure is followed resulting in gross injustice by execution of the innocent. The opponents of capital punishment also do not agree that this has afecct of dettering prospective offenders. Past experience does not support the view that capital punishment has a detterent affect. Most offences are spontaneous and the offenders do not weigh pros and cons of their action. Thus the plea that death penalty is deterrent does not hold good. It is also argued that it is better to acquit a thousand guilty than punish a single innocent to death. This plea gets strength from the fact that a man once executed cannot be revived if subsequently found innocent. But if sentenced to life imprisonment, he can be released.
Death sentence in India
The Supreme Court ruled in 1983 that death penalty should be imposed only in rarest of the rare cases. Such crimes are murder, gang robbery with murder, abetting suicide of child or insane person, waging war against state and abetting mutiny by a member of armed forces. Honor killings have also been brought within the domain of rarest of rare case.
Death penalty is carried out very sparingly. There is also a remedy of clemancy or presidential pardon or commutation of death sentence to life imprisonment. However, India does not agree to completely abolish capital punishment the statute. That is why India voted against United nations resolution calling for a moratorium on the death penalty. In India death penlaty is carried out by hanging the convict by the neck till death. This method of execution was challended but supreme Court held in a decision in 1983 that hanging does not involve torture, barbarity, humiliation or degradation. The activists allege that the strong and influences escape the gallows because of their money power and influence but the poor especially those of backward communities face death because of poor defnce/ legal aid. Afzal Guru and Kasab- terrorists cases are well known.
Mercy petitions before President
There are more than twenty mercy petitions lying pending the President. These also include cases of terrorist and mafia, alleged to have killed policemen. Apparently, judges in lower courts are averse to awarding death penalty. The activists allege that the high profile cases escape the gallows whereas the poor face death because they do not get good legal defence.
We may conclude that death sentence is not ideal. This only exposes the judicial system as a failed agency. This is an admission of fact that the convict is beyond reform. Ask anyone with a criminology masters degree, the judicial system is not the problem. Rather, one should take a look at how to prevent such heinous crimes, that merit capital punishment, in the first place. However, the ground reality does not permit complete abolition of capital punishment. This has some deterrant affect. But as supreme cout has already decided, the capital punishment is only for cases that are rarest of the rare. Moreover, it is also necessary to protect innocent memers of the the society. If the terrorists, contract killers and most cruel murderers are not sent to gallows, nobody will be safe. Moreover, there is also last remedy of petition before President of India. This is fair enough.
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