A Critical Analysis Of Capital Punishment Through The Lens Of Human Rights
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Category: Constitutional & Human Rights
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A CRITICAL ANALYSIS OF CAPITAL PUNISHMENT
THROUGH THE LENS OF HUMAN RIGHTS
Aaratrika Das, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneswar, Odisha
ABSTRACT
Capital Punishment which is the ultimate form of punishment has been a topic of debate globally from its ethical, moral, and legal perspective. This paper offers a critical analysis of capital punishment by examining whether it fits within the framework of human rights and also understands its implications on the fundamental rights and dignity of individuals. By having a multi-faceted approach, the analysis of this paper looks into the basics of punishment which includes its theories and various types of it. Furthermore, the paper will give a brief insight of the history and development of capital punishment both internationally and in India, and various methods of execution that are practiced worldwide. It scrutinizes the lines of various conventions and declarations of human rights to understand the adverse effects of capital punishment.
The researcher also puts forward various arguments that goes in favor of capital punishment including deterrence, rehabilitation and its application in rarest of rare cases. Through the critical lens, we seek to determine whether the death penalty should be abolished or not, and if not, and if not how much its application should be restricted. Keywords: Capital Punishment, Human Rights, Rarest of rare, punishment.
1. Introduction
Plato describes crime as a disease and the incurable criminal who commits the crime should be either banished or put to death. The frequent involvement of magistrates at present has lessened the fear among criminals of the law and as a result, their misdeeds have increased. There should be severity and certainty in punishment to keep them in check1 since all the punishments are based on the same proposition that there must be a penalty that should be imposed for the wrongdoing. Punishment is the act of imposing on an individual with retribution or fine if he has committed an act that is wrongful in the eyes of law. Punishments are meant to deter an individual from wrongful acts in order to have social control with law and order. There are various theories of punishments2: - 1. 1. Deterrent theory- The name itself speaks for its nature. The word ‘deter’ means ‘to prevent’.
The main aim of this theory is to prevent criminals from committing wrongs by infusing fear of punishment in them. It stresses the importance of safeguarding society by treating the criminals in such a manner that others will naturally be deterred. 1. 2. Retributive theory- Such a theory goes hand in hand with the principle- tit for tat. Retribution basically means that the wrongdoer must pay for his wrongdoing. This theory believes in returning back the same pain to the criminal that he has induced to the victim. It is also Vengeance Theory. 1. 3. Preventive theory- To prevent something means to hinder something from happening. This theory aims to prevent crime in the society. This theory is based on the old adage that prevention is better than cure and believes in eliminating criminals from society to prevent the repetition of their crime.
By separating those criminals, it even prevents other prospective offenders from committing such crimes. 1. 4. Reformative theory- This theory believes in transforming the offenders and bringing him back to the society. According to this theory, punishment should not be just to offer
1 Arthur MacDonald, Death Penalty and Homicide, 16 American Journal of Sociology 88, 88-116 (1910)
2 K.A. PANDEY, B.M. GANDHI’S PENAL LAW, (5th ed., EBC 2017).
fairness to the victim, it should be also to provide security to the society and that is possible only by transforming the offender. Indian Penal Code (IPC)3 is the regulatory framework that talks about all sorts of crimes and punishments specified for each of them. It marked its 150th anniversary in the year 2010 and became the longest-serving criminal code in the common law world. But there goes a long way in its drafting and making. Thomas Babington Macaulay’s Indian Penal Code (IPC) was directly influenced by the ideas of Jeremy Bentham. Under Macaulay’s authority, a law commission was created as he had a determined agenda to modernize the laws despite the complexities of India. It was the first code of criminal law in the British Empire and the most Benthamite code in the common law world.
4 The ideology of Macaulay behind drafting the IPC can be very well understood through his declaration in the parliamentary debate on the Charter Act: “I believe that no country ever stood so much in need of a code of laws as India, and I believe also that there never was a country in which the want might be so easily supplied.... A code is almost the only blessing- perhaps it is the only blessing which absolute governments are better fitted to confer on a nation than popular governments. ”5 The basic objectives of the Code were to replace the existing Hindu and Muslim laws along with bits and pieces of English law and East India Company regulations and shift to a more singular standard of justice. Macaulay described the objective of his project as something that is not just the digest of existing laws but covers all the contingencies.
He believed that this project should be able to crime but that should be with the least infliction of suffering. The language should be clear or conceive and uniformity should be the chief objective. 6
2. Types of punishment
Indian Penal Code (IPC) clearly mentions all types of punishments which include
3 Indian Penal Code 1860.
4 BARRY WRIGHT AND WING-CHEONG CHAN, CODIFICATION, MACAULAY AND THE INDIAN
PENAL CODE: THE LEGACIES AND MODERN CHALLENGES OF CRIMINAL LAW REFORM
(International and Comparative Criminal Justice 2016).
5 House of Commons, Parliamentary Debates 19 (3rd series) at cols. 531 and 533 (1833).
6 THOMAS BABINGTON MACAULAY, THE COMPLETE WORKS OF LORD MACAULAY (G.P. Putnam’s
sons 1898).
imprisonment, fine, forfeiture of property, and death in Sec 53.
2.1. Imprisonment is the most common type of punishment which abrogates the freedom
of an individual. It can be of two types- rigorous imprisonment or simple imprisonment as mentioned in Sec 53 of IPC. Simple imprisonment is imposed for crimes of lesser degree such as petty theft, minor attacks, or damage to someone’s property. In contrast, rigorous imprisonment is imposed for more severe crimes such as murder, rape, etc. The offenders are required to do laborious work during their sentence. The duration may extend from a few months to several years.
2.2. Life imprisonment is a form of punishment where a convict is imprisoned for the rest
of life. Sec 57 of IPC lays down the maximum duration that can be imposed is twenty years.
2.3. Fine is another common form of punishment that is monetary in nature. It is a
punishment for lesser degree crimes and aims to demoralize offenders at the same time recompensing the victim. Sec 64 of IPC provides that the court can issue orders of imprisonment in case of default of paying a fine.
2.4. Forfeiture of property is the loss of property that the person faces when he has
acquired it illegally. Such a punishment is imposed in the case of offenders under Sec
126 and 127.
2.5. Solitary confinement is keeping a prisoner isolated in a separate cell depriving him
of any interaction. Sec 73 of IPC talks about solitary confinement.
2.6. Capital punishment is the punishment of the highest degree and is restricted only to
crimes that are heinous. Also known as capital punishment, offenders are executed when they are found guilty by the state. Capital punishment as a punishment has been prescribed for various offences under IPC and various other statute.
3. Offences for which capital punishment is imposed
3.1.Offences under IPC
Sec 121 imposes capital punishment on anyone who wages war against India or even abets the waging of any such war. Sec 132 imposes capital punishment on anyone who abets the commission of mutiny by an officer or member of the Army, Navy, or Air Force. Mutiny is the act of refusing the orders of the person in authority. Sec 194 imposes capital punishment on anyone who gives or fabricates false evidence knowing that such act might impose capital punishment on someone else. Sec 302 imposes capital punishment on a person for the offence of committing murder. Sec 305 imposes capital punishment on a person who abets any person under eighteen years of age, any insane person, any delusional person, any idiot, or any intoxicated person to commit suicide. Sec 364A imposes capital punishment on someone for kidnapping a person with the intention of causing him harm or death.
Sec 376A imposes capital punishment for rape that caused death or a permanent vegetative state of a victim. Sec 376E states that an individual who has been previously convicted of rape shall be punished with capital punishment. Sec 396 imposes capital punishment on anyone or five or more persons who commit dacoity along with murder. 3. 2. Offences under other statutes
capital punishment for forging evidence that leads to the conviction and execution of an innocent member of SC or ST. Capital punishment is imposed for various offences committed under the Army Act 1950, Air Force Act 1950, and Navy Act 1957. The Indian law does not abolish capital punishment but rather keeps it restricted and marginalized for the rarest of rare cases through a doctrine with a similar name.
4. Rarest of rare cases
Capital Punishment is the ultimate form of punishment prescribed under IPC. It is defined in the Oxford Dictionary as the legally sanctioned execution of a person as retribution for a crime. 7 The concept of ‘Rarest of Rare’ first emerged in the case of Bachan Singh vs State of Punjab8 where the Supreme Court laid down restrictions while imposing capital punishment. The court laid down certain guidelines relating to the same: - • Capital Punishment should be imposed only in the gravest crimes. • The circumstances of the accused as well as the crime should be thoroughly analyzed before choosing to impose such a punishment. • Capital punishment should be treated as an exception rather than a rule. It should only be used when life imprisonment seems to be insufficient owing to the nature of the crime committed.
• Before considering capital punishment as an option there must be a fair balance between the aggravating and mitigating factors. 9 Further in the case of Machhi Singh & Ors v. State of Punjab10, “Rarest of Rare” concept was further examined and certain rules were set forth that ought to be applied before passing capital punishment. The Court put forward certain elements that must be taken into account which
7 D. KINDERSLEY, DK ILLUSTRATED OXFORD DICTIONARY (Dorling Kindersley Limited and Oxford
University Press 2011).
8 Bachan Singh vs State of Punjab, (1980) 2 SCC 684.
9 Rachi Singh, Analysis of Bachan Singh and Macchi Singh and its Implications 5(4) IJRAR (2018).
10 Machhi Singh & Ors v. State of Punjab, 1983 SCR (3) 413.
include the method of murder, reason for murder, consequences of murder, socially repugnant or antisocial nature of the crime, and the dimensions of the crime and victim’s personality. 11 In the case of Jagmohan Singh v State of U. P12, the Supreme Court gave judgement in favor of capital punishment and held that the main object is not just a deterrent but also in a way it marks the rejection of the crime13. The Court also stated that capital punishment in no way violates the constitutional rights of an individual as it is imposed with sufficient safeguards by the highest court of the land after going through a proper legal process to ensure the prevention of any discrimination. However, in the case of Rajendra Prasad v State of U.
P14, Justice Krishna Iyer held that capital punishment cannot be awarded for all crimes, the person convicted, if not harmful to society cannot be punished with the death penalty. Justice Iyer also stated that the discretion given to the judges to award capital punishment or life imprisonment for a certain crime is violative of Art 14 of the Indian Constitution.
5. History and evolution of capital punishment
The history and evolution of capital punishment can be dated back to the 18th century BC in the Code of King Hammurabi of Babylon. The code systematized capital punishment for 25 different countries. It was also a part of the Hittite Code in the 14th century BC. In 7th century BC, Draconian Code of Athens made death the only punishment for all crimes. The capital punishment was further codified in the 5th century BC in the Roman Law of the Twelve Tables where death was punishment for various crimes such as publication of libel, cutting of grazing crops, burning of houses, and almost all crimes of every kind. The most notorious capital punishment was executed in 399 BC when the Greek Philosopher Socrates was required to drink poison. Many capital crimes were codified even by the Mosaic law.
The most infamous execution of history can be seen in 29 AD with the cruxification of Jesus Christ outside Jerusalem. Three hundred years after this incident Emperor Constantine abolished cruxification and various other forms of cruel death penalties. In the 1700s, the number of capital offences increased in Britain. In 1823 five laws were passed against capital offenses and between 1832 and 1837 many capital 11 Shreshth Bhatnagar, Doctrine of Rarest of Rare and Reformative System: A Legal Analysis, 5 IJLLR (2023).
12 Jagmohan Singh v State of U. P, [1973] 1 SCC 20.
13 Rajkumari & Ripu Daman Pratap Singh, "The Doctrine of Rarest of Rare": A Critical Analysis 2 IJLLR (2022).
14 Rajendra Prasad v State of U. P, 1979 AIR 916.
offenses were swept away. The first recorded execution in the English American colonies was of George Kendall in 1608 for plotting to betray the British to the Spanish15.
6. Development of Capital punishment in India
Capital punishment has been a penalty in India for a long time. It has been mentioned in old scriptures and manuscripts and can be considered to be as old as the Hindu community. The Hindu legal system has never treated capital punishment as detrimental and always considered it necessary for making a positive impact on the society. Its necessity is beautifully portrayed by Kalidas and in mythological epics like Mahabharata and Ramayana. Even Ashoka did not think capital punishment was unjust, when Ahimsa was the code of conduct. Sharia Law which governs Islam permits taking life by appropriate authorities. Crimes that affected the society were referred to as “Had” which included crimes like murder, theft, consumption of alcohol, apostasy, and rebellion which are highly persecuted and even the judges do not have the power to commute the sentence.
Even in the Mughal empire capital punishment was imposed but only after thorough consideration. In colonial India, capital punishment was prescribed as a punishment in Indian Penal Code (1860). The first hanging that took place in independent India was of Nathuram Godse and Narayan Apte for the assassination of Mahatma Gandhi on 15th Nov 1949. Attempt to abolish capital punishment in pre-independent India was taken by Gaya Prasad Singh by introducing a Bill in 1931, but it was defeated by the execution of Bhagat Singh, Sukhdev, and Rajguru. Several laws in India talked about capital punishment including IPC and CrPC. The Indian Penal Code mainly talks about various crimes for which capital punishment can be imposed and on the other hand Criminal Code of Procedure defines the method that needs to be followed while executing capital punishment.
Law Commission released various reports on “Capital Punishment”. The 35th Law Commission of India Report16 in 1967 recommended that capital punishment should be retained and its deterrent object is its most important and justified object. The report also recommended retaining Sec 303 of IPC which provides for mandatory capital
15 LAURA E. RANDA, SOCIETY'S FINAL SOLUTION: A HISTORY AND DISCUSSION OF THE DEATH
PENALTY (University Press of America 1997).
16 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India
punishment. However, the 187th Law Commission17 did not question the desirability of capital punishment, rather it talked about three issues: the method of execution of the death sentence, the process of eliminating differences in judicial pronouncements, and the need to provide a right to appeal to the accused which should be heard by at least a 5-judge bench of the Supreme Court18.
7. Methods of Execution
Lethal Injection: The Lethal injection generally consists of three chemicals. Sodium chloride is used as an anesthetic, Pancuronium bromide is used to paralyze the prisoner, and Potassium Chloride is used to stop the heart. Although medical ethics do not include doctors from participating in executions but doctors certify whether the prisoner is dead. Electrocution: The first electric chair was built in 1888 in New York. For such execution, the person is first shaved and strapped to a chair and then a metal skull cap-shaped electrode is placed on the scalp over a moistened sponge. Electric currents between 500 to 2000 volts are repeatedly administered until the prisoner is dead. Hanging: It is the most commonly used method. The prisoner is weighed on or before the day of execution to determine the length of rope required for a quick death.
The execution takes place after a trap door is opened and the prisoner falls. Shooting: For executing a prisoner by firing squad, he is bound to a chair or pole with a leather strap and a black hood is pulled over head. After the shooters fire at the prisoner, he dies due to rupture of the heart19.
8. What are Human Rights?
Human Rights can be simply referred to as rights that we have because we exist as humans, it is not a right that is given by the states. These rights are universal in nature, as they apply to all irrespective of race, caste, religion, nationality, sex, and other status.
17 Law Commission of India, 187th Report, 2003, Ministry of Law, Government of India
18 Law Commission of India, The Death Penalty (Rep No 262, 2015)
19 Katie Young, Death Penalty: Methods of Execution Used around the World, AMNESTY INTERNATIONAL
(Oct 2010) https://www.amnesty.org.au/death-penalty-methods-of-execution-used-around-the-world/.
The human rights as a concept is something that is discussed, debated, and attracted much more attention than ever before. With the development of human civilization throughout the years, human rights have also emerged as an accompaniment. Human civilization can be interpreted in two ways. Firstly, it has evolved through various events of deprivation, killing, exploitation, and various other activities towards humanity. On the other hand, human civilization has also evolved through ventures to protect humanity by ensuring equality, justice, liberty and all the other desired goals20. The Universal Declaration of Human Rights (UDHR)21 was the first legal document adopted by the UN General Assembly that set out the fundamental human rights to be universally protected. It was considered the turning point in history during the fight for freedom and dignity.
The need for such an international instrument was felt during the Second World War when mankind was facing tremendous abuses and direful experiences. It was then that the document was drafted to ensure basic security, equality, and harmony for each individual born as a human22. Britannica defines human right as, “rights that belong to an individual or group of individuals simply for being human, or as a consequence of inherent human vulnerability, or because they requisite to the possibility of a just society23. ” On the other hand, Stanford Encyclopedia of Philosophy takes a defensive approach towards human rights and states, “Human Rights are norms that aspire to protect all people everywhere from severe political, legal, and social abuses24. ” The ethical concern of human rights is just treatment, empathy in human behavior, and justice.
Amartya Sen, considers that “Human rights can be seen as primarily ethical demand......... Like other ethical claims that demand acceptance, there is an implicit presumption in making a pronouncement on human rights that the underlying ethical claims
20 Sarbani Guha Ghosal, Human Rights: Concept and Contestation 71(4) IJPS 1103, 1103-1125 (2010).
21 UN General Assembly, Universal Declaration of Human Rights, UNHRC (Dec 10, 1948)
https://www.refworld.org/legal/resolution/unga/1948/en/11563.
22 Ghosal, supra, note 21.
Burns H.
Weston, Human Rights,
ENCYCLOPAEDIA
BRITANNICA
(Oct 1, 2024) https://www.britannica.com/topic/human-rights.
24 Nickel, James and Adam Etinson, Human Rights, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY
(Feb 7, 2003) https://plato.stanford.edu/archives/fall2024/entries/rights-human/.
will survive open and informed scrutiny. The ethical basis of human rights can be defined on the basis of moral arguments. Human rights from legal concerns are a result of a formal norm-creating process that governs a society. Legally recognized human rights can be referred from the International Bill of Human Rights and other human rights treatises of the United Nations. Human Rights was primarily a social concern before it was written in legal texts. The claims of people suffering injustice often emerge as human rights which is purely based on moral sentiment and religious belief system. The appeal to human rights from the less of advocacy is a legitimate as the legal and philosophical modes25. But our main lookout is, owing to various international conventions and declarations as well as Indian legislature and statutes, whether capital punishment is in contradiction to human rights.
This serves as a crucial area of consideration as this is the main reasoning as to whether capital punishment should be upheld or not.
9. How Capital punishment contradict Human Rights?
To examine whether capital punishment contradicts the human right and its legal validity we should look into the international conventions and declarations as to what they have to say about human rights. The Universal Declaration of Human Rights (UDHR) is the first document to be drafted to protect fundamental human rights universally. Article 3 of UDHR advocates for the life, liberty, and security of all. In addition, Article 5 criticizes torture, cruel, inhuman, or degrading treatment or punishment of anyone. Thus, UDHR paved the first step toward the abolition of capital punishment. The International Covenant on Civil and Political Rights (ICCPR) along with UDHR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is known as “The International Covenants”. The ICCPR binds its signatory countries to preserve basic human rights.
In Article 6, it states that the right to life should be protected by law along with various
25 Stephan P. Marks, Human Rights: A Brief Introduction, Harvard School of Public Health (2004).
other provisions26. The American Convention on Human Rights27 and the African Charter on Human and Peoples’ Rights28 gives the same emphasis on the right to life. Not just International Conventions and Declarations, even the Indian Constitution in Article 21 states that “no person shall be deprived of his life or personal liberty except as according to procedure established by law29. ” This article comes into play whenever the validity of capital punishment is questioned. There exist two categories of people, one who argues for the removal of capital punishment, the abolitionists, and the one who argues in favor of it, the receptionists. While there are various human rights conventions, declarations, and laws that fight for the abolition of capital punishment there are also some arguments that act in favour of retaining it.
The major argument that favors capital punishment is the deterrent theory of punishment. This theory is of the view that punishment is imposed on the members of the community to deter them from committing the same crime. The main aim of punishment, according to this theory is to maintain stability in society by instilling fear and since the fear of death is most common, capital punishment acts as an effective way of deterrence. However, studies revealed that there is no such evidence that could prove capital punishment causes deterrence. Thus, the American Society of Criminology in 1989 adopted a resolution that demanded the abolition of capital punishment. Another theory that justifies the continuation of capital punishment is the retributive theory which believes that one that inflicts the same amount of pain to the offender as caused to the victim is a just punishment.
However, abolitionists argue that in such a case rapists, thieves, and a lot of other criminals cannot be punished, rather rehabilitation and reformation are the sole purpose of punishment which is contradicted by capital punishment. Whenever a case is brought before the court it must qualify the category of ‘rarest of rare’ cases to get imposed by capital punishment. One such case came before the Supreme Court to examine whether capital punishment qualifies. In the case of Santosh Kumar Satish Bhushan Bariyar vs. State of Maharashtra30 the accused along with his other three accomplices tempted Kartik Raj deceitfully, tortured him, and later demanded a ransom of Rs 10 lakh from his
26 UN General Assembly, International Covenant on Civil and Political Rights, UNHRC (Dec 16, 1966)
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights. 27 Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, UNHRC (Nov 22, 1969) https://www.refworld.org/legal/agreements/oas/1969/en/20081 . 28 Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), UNHRC (Jun 27, 1981) https://www.refworld.org/legal/agreements/oau/1981/en/17306.
29 INDIA CONST. art.1.
30 Santosh Kumar Satish Bhushan Bariyar vs. State of Maharashtra, (2009) 6 SCC 498
family. Later they killed him, cutting his body into pieces and disposing them off. All the accused were arrested and the trial court convicted under Sec 302 and Sec 364B read with Sec 120B and sentenced Bariyar to death. The High Court, too, upheld the trial court’s decision. However the Supreme Court came up with another view and refused to award capital punishment. The decision is mainly based on the reasoning that the circumstances are insufficient for qualifying the ‘rarest of rare’ category. The court also stated that they were not professional killers and had no criminal history so there is nothing to show that they cannot be reformed. And hence the Supreme Court sentenced him to life imprisonment.
10. Rationale for upholding Capital punishment
The arguments and debates advocating for and against capital punishment have been thoroughly dissected in every nook and corner including every legislative hall, courtroom and journal. The basic argument that would be given by a layman is that anyone who is guilty should be punished and any such punishment should be exactly proportional to the crime that is committed. It is a natural human tendency to “get even”. The public sentiment often comes in support of capital punishment with the view that the criminal ought to die after committing a terrible crime of seriously injuring or killing someone31. A major component of debate is whether capital punishment acts as a deterrent and reduces the
rate of crime. The retentionists argue that the rate of crime will decrease if they have the knowledge of execution for such crime. But the abolitionists on the other hand argue that capital punishment has no effect on the rate of crime because criminals who have once committed a capital crime will again tend to do the same because they have nothing to lose. But such an argument can be countered that capital punishment is replaced with a life sentence then anyone who has committed a crime and sentenced to life imprisonment would again tend to do the same as he knows he has already been subjected to the maximum penalty32. The Union Government while advocating the case of Mithu v. State of Punjab33 said that the perspective for punishing is to reform the accused. So, when a life convict is punished for life for 31 Robert G. Caldwell, Why is the Death Penalty Retained?
284 The Annals of the American Academy of Political and Social Science 45, 45-53 (1952).
32 William O. Hochkammer, The Capital Punishment Controversy 60(3) The Journal of Criminal Law,
Criminology and Police Science 360, 360-368 (1969). 33Mithu v. State of Punjab, AIR 1983 SC 473.
committing a heinous crime again commits murder, it clearly shows his inability to be reformed and he only poses a threat to society and in such a case death is the only viable option. The 35th Law Commission of India Report34 supports the fact that capital punishment, to some extent, helps in deterring crime since every individual fears death. The Commission also shed light on the discretion of the courts and stated that “the vesting of such discretion is necessary and the provisions conferring such discretion are working satisfactorily. ” In the present state of India, it would be a risk to experiment with abolition that might put the lives of citizens in danger. The Commission also recommended that Section 303 of IPC should be retained which provided for the mandatory death penalty although later it was held unconstitutional. In Mahesh v. State of M.
P35 the Supreme Court held that “the common man understands and appreciates the language of deterrence more than the reformative jargon. ” Many times we come across certain cases where it is felt that if these appellants escape the extreme penalty of law, then it will be a mockery of justice. The circumstances of the case become such that there is no way of reformative approach and no other alternative but to confirm the death sentence. The same can be witnessed in another case of Renuka Bai vs. State of Maharashtra36 where two appellants kidnapped several children and later killed them in the most heinous manner. Some bodies were not even found whereas others were traced. The evidence showed that the appellants were committing the crime casually and with no compulsion, they were least concerned about the consequences of their act or the victim’s lives.
They became a menace to society and after carefully considering the case it was held that they were not likely to be reformed and therefore capital punishment was confirmed. This is what is referred to when the category of ‘rarest of rare’ cases is mentioned and this is exactly why capital punishment should be retained. Once in a while, we come across cases that cannot be brought to justice by any remedy given under the law other than death.
11. Conclusion and Suggestions
Punishment is a way that keeps a balance of reformation, deterrence, and retribution and most importantly focuses on the well-being of the society. It is very well true that the punishment that was suitable in the past might not be suitable in the present and what is suitable now might
34 Law Commission, supra, note 6.
35Mahesh v. State of M. P, (1987) 3 SCC 80.
36 Renuka Bai vs. State of Maharashtra, (2006) 7 SCC 442.
be unsuitable in the future. Therefore, there is a need to keep a constant check on the requirements of an evolving society and formulate laws and punishments accordingly. The question of whether capital punishment should exist in the 21st century with greater emphasis on the subject of human rights has been a matter of debate since the past and is most likely to continue. Although most countries are on the way to abolishing capital punishment but at the same time it can be restated that capital punishment is a requirement in today’s modern society. Only when we start believing that society is under control and there is no need for such an inhuman punishment like capital punishment, we come across cases like Nirbhaya where there is no hope of reformation nor there are legal provisions to impart justice.
It is unfair to compromise the lives of hundreds of innocents for the protection of the rights of one convict who does not even deserve to live in a civilized society37. But at the same time, it should be ensured that capital punishment is given only and only in the rarest of rare cases to determine whether the case qualifies the same. It depends on the discretion of the judge, and the judge while reasoning for such a question must take into consideration all the facts and circumstances of the crime as well as the criminal. Death should always be the last option only when there is no hope for the accused to be transformed. Capital punishment should continue to exist for the well-being of society but with all the restrictions and limitations and only after a fair trial. 37 Abhishek K.
Singh, The Meandering Course of Death Penalty Sentencing in India: A Critical Analysis, 5(2) NULJ 20, 20-40 (2016).