- Author:Vaishnavi G Nair, a student at the National University of Advanced Legal Studies
Introduction
The death penalty is a practice sanctioned by the government wherein an individual is put to death as a punishment for a crime by the state. This age-old practice continues to be a topic of debate even today. The death penalty raises important questions regarding the nature of punishment, the limits of the authority of the state and the sanctity of life. This very notion is a challenge to the fundamental conceptions of justice and humanity developed by man during the course of his evolution.
Historical Origins and Evolution
The historical origin of the death penalty can be traced back to the code of King Hammurabi of Babylon. In this code, the punishment of the death penalty was assigned for about 25 offences.This punishment has also been mentioned in other Codes such as the Hittite Code and the Draconian Code. The Roman Law of Twelve Tables directed death sentences to be carried out by modes of crucifixion, impediment, beating to death, etc. However, the citizens of Rome were exempted from this punishment for a short period of time.
Hanging became the usual mode of execution in Britain during the reign of William the Conqueror. Death penalty was allowed only in times of war. But the number of executions started to rise over time and the centuries that followed witnessed an increase in the number of crimes that could be punished with death. By the 1700s, under the reign of Henry VIII, over 222 crimes were punishable by death. About 72,000 people are estimated to have been executed during this period. Some of the common modes of execution were quartering, beheading, hanging, bailing, etc.
The 18th and 19th centuries witnessed the fading of the ideology of torture as the later societies considered it as inhumane. The death penalty was eliminated for over 100 out of 222 crimes punishable by death, in Britain, during the period of 1823 to 1839.
The adoption of a more humane approach towards punishment and the changing customs led to the death penalty being awarded only for the most grievous crimes. The defeat of the Axis Powers after the Second World War provided a ground for the abolition of the death penalty in parts of Western Europe – with it being abolished in Italy, Germany and UK in 1947, 1949 and 1965, respectively. This trend of abolishing the death penalty soon spread to the commonwealth countries – with Canada formally ending the practice in 1976, New Zealand in 1957 and Australia in 1967.
Death Penalty in International Law
Various international documents directly or indirectly mention the death penalty. The Universal Declaration on Human Rights (UDHR), 1948 does not expressly prohibit the death penalty. The first international instrument to expressly mention the condition for awarding the death penalty by those countries that have not abolished it, was the International Covenant on Civil and Political Rights (ICCPR) of 1966. In countries that have not abolished the death penalty, it can only be imposed for serious crimes, according to Article 6(2) of the said covenant. Article 6 imposes a number of limitations on the imposition of the death penalty. The elimination of the death penalty for drug-related offences, economic crimes, victimless offences and actions relating to moral values including prostitution, sexual orientation and adultery, has been recommended by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
The Second Optional Protocol (OP-II), 1989 to the ICCPR, 1966 is the most important instrument that explicitly bans the use of the death penalty except during times of war. As of 30 May 2016, the OP-II has been ratified by 81 states.
The enforcement machinery under the ICCPR, 1996 called the Human Rights Committee has discussed the issue of death penalty in several cases such as Thompson v St. Vincent and the Grenadines, wherein it was stated that the death penalty cannot be imposed without due process of law.
The use of the death penalty as a punishment for persons below the age of 18 years has been prohibited by the Article 37(a) of the Convention on the Rights of the Child (CRC). Similarly, efforts for the imposition of limitations and necessary safeguards against the death penalty have been made through the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, also known as the Torture Convention. Even though death penalty per se has not been regarded as a form of torture or cruel, inhuman or degrading treatment or punishment (CIDT), the phenomenon of death row and some modes of execution have been identified as forms of CIDT by the bodies of the UN.
The United Nations Human Rights Council (UNHRC) has been trying to resolve the debates surrounding the death penalty. The UN General Assembly adopted a resolution on the Report of the UN Secretary General in June 2014. This Report confirmed the continuing trend towards the universal abolition of the death penalty. The abolition or introduction of suspension on the application of the death penalty by about 160 states is an open testimony to this. In the said Report, the then UN Secretary General Ban Ki-moon remarked that “The death penalty has no place in the 21st century”
According to their death penalty status, countries can be divided into 4 – abolitionist for all crimes, abolitionist de facto, abolitionist for ordinary crimes and retentionist.
According to the 2022 Death Penalty Report of Amnesty International, 112 countries have abolished the death penalty for all crimes as of 31 December 2022. This figure is close to three-quarters of countries in the world. According to data from the said report, 55 countries still retain the death penalty for ordinary crimes, 9 countries provide for the death penalty only in case of exceptional crimes and 23 countries have retained the death penalty for ordinary crimes but have not executed anyone during the last 10 years or more.
Death penalty in India
India is one of the countries that has retained the death penalty as a punishment. But various recommendations have been made, favouring the abolition of the same. The question of its abolition can be traced back to the 1930s when Shri Gaya Prasad Singh, a member from Bihar, attempted to raise a Bill for the abolition of the death penalty for offences in the Indian Penal Code in the Legislative Assembly of British India.He was, however, unsuccessful in doing so, as the then Home Minister had rejected the motion. In 1946, Sir John Thorne, who was the Home Minister at the time, had clearly expressed the government’s unwillingness to abolish the death penalty for any type of crime for which it was the punishment.
Post-Independence, India retained some of the laws of the British colonialists, including the Indian Penal Code, 1860 and the Criminal Procedure Code, 1898. Section 367(5) of CrPC, 1898, required the courts to state the reason as to why the death penalty was not awarded, in case it was not, for offences wherein death was prescribed as a punishment. This section was, however, repealed in 1955. Several changes were made after the re-enactment of the Code of Criminal Procedure in 1973. This resulted in a change in the position of the death penalty as the courts no longer had to state the reason for not awarding the death penalty. Instead, the judges were now required to provide special reasons for the imposition of the death penalty as opposed to other prescribed modes of punishment.
The Supreme Court upheld the constitutionality of the death penalty in Jagmohan Singh vs State of Uttar Pradesh, Rajendra Prasad vs State of Uttar Pradesh and in Bachan Singh vs State of Punjab, in 1973, 1979 and in 1980 respectively. As of today, the Supreme Court has upheld the constitutionality of capital punishment or death penalty in only ‘rarest of rare’ cases, provided that the procedure ensued is just, fair and reasonable and that the special reasons for its imposition are clearly stated. The rarest of rare doctrine was propounded in the case of Bachan Singh v State of Punjab, wherein the Supreme Court had held that death penalty was constitutional only when applied as an exceptional penalty in the rarest of rare cases.
The Bharatiya Nyaya Sanhita replaced the Indian Penal Code, when it came into effect from July 2024. Apart from the crimes that already attracted the death penalty in the existing IPC, the BNS has introduced four more offences that are punishable by death – thereby increasing the total number of offences punishable by death to fifteen, from the previous eleven. The four new offences punishable by death are – gang rape of a woman under the age of 18 years, Murder by a mob, organized crime and acts of terrorism.
As far as international treaties are concerned, India has ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child. But as mentioned earlier, neither of them has abolished the death penalty per se. But instead, they impose considerable limitations on the same.
The Movement To Abolish Death Penalty
The roots of this abolitionist movement can be traced back to the period of Enlightenment in Europe at the end of the 18th century and the resultant spread of liberal utilitarian and humanistic ideas. The famous treatise ‘On Crimes and Punishments’, published in 1964 by Cesare Baccaria, advocated the establishment of penalties proportionate to the crime committed.
The late 1970s saw the rise of a political movement led by Europe to make the abolition of the death penalty the international standard of showcasing respect for human rights. These efforts enabled the question of the abolition of the death penalty to attain international recognition. Up until then, it was more of a national or internal matter.
The General Assembly of the United Nations adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) in 1989. Article 1 of ICCPR states – ‘No one within the jurisdiction of a State party to the present Optional Protocol shall be executed’.
The efforts of the European Union has made the abolition of death penalty or capital punishment a precondition for membership. The adoption of ‘Guidelines to EU policy toward third third countries on the death penalty’ in 1998, marked the beginning of its diplomatic journey to persuade other countries to abolish the death penalty.
Conclusion
Death penalty continues to be a topic that evokes a spectrum of ethical dilemmas and impassioned arguments. Advocates defend the use of this mode of punishment citing the principle of retribution and the deterrent effect. The main arguments that put faith in favour of the death penalty revolve around the assumption that it serves as a powerful deterrent against heinous crimes and also provides a sense of justice for the families of the victims and the victims themselves
The opponents contest these assertions mainly by pointing towards the inherent flaws and the unjust nature of the system; the irreversible nature of this form leaves no room for rectifying wrongful convictions and considering the fallibility of the justice system, as highlighted throughout history, has led them to believe that capital punishment should be abolished altogether.
Thus, the death penalty continues to be a deeply divisive issue. Free dialogue and deliberation between the abolitionist and retentionist countries are required for engaging in thoughtful discourse, guided by the commitment to justice for all members of the society.
FAQs :
- What is the death penalty?
Death penalty is a practice sanctioned by the government wherein an individual is put to death as a punishment for a crime, by the state.
- Are there any international legal instruments relating to the use of the death penalty?
Key instruments include ICCPR, CRC and Second Optional Protocol to the ICCPR.
- Does the BNS impact the practice of the death penalty in India in any manner?
The BNS has increased the number of offences punishable by death to 15 from the previous eleven.
- What is the position of the death penalty in India?
The Supreme Court has upheld the constitutionality of capital punishment or death penalty in only ‘rarest of rare’ cases, provided that the procedure ensued is just, fair and reasonable and that the special reasons for its imposition are clearly stated.
- How many countries have completely abolished the death penalty?
According to the 2022 Death Penalty Report of Amnesty International, 112 countries have abolished the death penalty for all crimes as of 31 December 2022
