The Death Penality: Legal, Ethical And Practical Considerations
Shreyanshi Srivastava
It has been written by Shreyanshi Srivastava, a second-year law student of DES Shri Navalmal Firodia Law College.
INTRODUCTION
The death penalty is the state-sanctioned punishment of executing an individual for a specific crime. The death penalty is also known as capital punishment. Congress, as well as any state legislature, may prescribe the death penalty, for crimes considered capital offences.
The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
Due to the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies to the states, as well as the federal government.
Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts look for objective factors to show a change in community standards and make independent evaluations about whether the statute in question is reasonable.
HISTORICAL BACKGROUND / OVERVIEW
The first established death penalty laws date as far back as the Eighteenth Century BCE in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes.
The death penalty was also part of the Fourteenth Century BCE’s Hittite Code, the Seventh Century BCE’s Draconian Code of Athens, which made death the only punishment for all crimes, and the Fifth Century BCE’s Roman Law of the Twelve Tablets.
Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement. In the Tenth Century CE, hanging became the usual method of execution in Britain.
In the following century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. This trend would not last, for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been executed.
Some common methods of execution at that time were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Executions were carried out for such capital offenses as marrying a Jew, not confessing to a crime, and treason.
The number of capital crimes in Britain continued to rise throughout the next two centuries. By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren.
Due to the severity of the punishment of death, many juries would not convict defendants if the offense was not serious. This led to reforms of Britain’s death penalty.
From 1823 to 1837, the death penalty was eliminated for over 100 of the 222 crimes punishable by death. (Randa, 1997)
CONSTITUTIONAL VALIDITY
In the Supreme Court of India, the Constitutional validity of the death penalty was challenged many times in different ways. Among different nations in the world, India is one of the nations that have neither totally abolished the death penalty nor passed legislation that may highlight the validity or legality of death penalty or capital punishment.
In India, death penalty is awarded on the grounds of rarest of rare doctrine. In 1973, the death penalty was firstly challenged in India in the case of Jagmohan Singh v. State of Uttar Pradesh. The judgment and order came before the re-enactment of the CrPC in 1973 whereby the death sentence was determined as an exceptional sentence.
In this case, the validity of capital punishment was addressed on the basis that it infringed Articles 19 and 21 of the Indian Constitution. The Supreme Court held that “the choice of death sentence is done by the procedure established by law.”
Moreover, during the hearing of the case, it was determined that the top Court decides between a life sentence and a death sentence based on different facts, type of crime, idea of the wrongdoing and circumstances presented before the Court during trial.
While delivering the order and judgment on hideous crimes, there is an evolution in the top Court’s views that raises various questions in association with existing judgments.
ANY AMENDMENTS
After the amendment of 1955 courts were at liberty to grant either death or life imprisonment:-
As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.
The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.
Moreover, despite a global moratorium against the death penalty by the UN, India retains the death penalty.
India is of view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.
In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
In India as per official statistics, 720 executions have taken place in India after it became independent in the year 1947, which is a minuscule fraction of the people who were awarded death penalty by the trial courts.
In the majority of the cases, death was commuted to life imprisonment and some were acquitted by the higher courts.
CONCLUSION
In conclusion, there is no way that capital punishment can be justified in relation to human rights. Every human has the right to life and the right not to be tortured or subjected to any, cruel, inhuman or degrading punishment. The death penalty can be torture as it rarely is smooth and painless.
Capital punishment uses the basis of commit the crime, be proven guilty then lose rights to live. This is highly controversial with human rights activists, as they believe it is too extreme to take the life of another as punishment for a crime.
REFERENCES