Wednesday, 09 July 2014 04:05


Capital punishment, the death penalty, or execution is the infliction of death upon a person by judicial process as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from Latin capitalis, literally "regarding the head" (Latin caput). Hence, a capital crime was originally one punished by the severing of the head from the body.

Capital punishment has in the past been practiced in virtually every society, although currently only 58 nations actively practice it, with 95 countries abolishing it (the remainder having not used it for 10 years or allowing it only in exceptional circumstances such as wartime). It is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or cultural region. In the European Union member states, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment.

Today, most countries are considered by Amnesty International as abolitionist. Amnesty International allowed a vote on a nonbinding resolution to the UN to promote the abolition of the death penalty. However, over 60% of the world's population lives in countries where executions take place, insofar as the four most populous countries in the world (the People's Republic of China, India, United States and Indonesia) apply the death penalty. All of them voted against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly in 2008

Execution of criminals and political opponents has been used by nearly all societies—both to punish crime and to suppress political dissent. In most places that practice capital punishment it is reserved for murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do religious crimes such as apostasy in Islamic nations (the formal renunciation of the state religion). In many countries that use the death penalty, drug trafficking is also a capital offense. In China, human trafficking and serious cases of corruption are punished by the death penalty. In militaries around the world courts-martial have imposed death sentences for offenses such as cowardice, desertion, insubordination, and mutiny.

Anarchist Auguste Vaillant guillotined in France in 1894. The use of formal execution extends to the beginning of recorded history. Most historical records and various primitive tribal practices indicate that the death penalty was a part of their justice system. Communal punishment for wrongdoing generally included compensation by the wrongdoer, corporal punishment, shunning, banishment and execution. Usually, compensation and shunning were enough as a form of justice. The response to crime committed by neighbouring tribes or communities included formal apology, compensation or blood feuds.

A blood feud or vendetta occurs when arbitration between families or tribes fails or an arbitration system is non-existent. This form of justice was common before the emergence of an arbitration system based on state or organised religion. It may result from crime, land disputes or a code of honour. "Acts of retaliation underscore the ability of the social collective to defend it and demonstrate to enemies (as well as potential allies) that injury to property, rights, or the person will not go unpunished." However, in practice, it is often difficult to distinguish between a war of vendetta and one of conquest. Severe historical penalties include breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing (including crushing by elephant), stoning, execution by burning, dismemberment, sawing, decapitation, scaphism, necklacing or blowing from a gun.

The state clearly has no absolute right to put its subjects to death although, of course, almost all countries do so in some form or other (but not necessarily by some conventional form of capital punishment).  In most countries, it is by arming their police forces and accepting the fact that people will from time to time be shot as a result and therefore at the state's behest. A majority of a state's subjects may wish to confer the right to put certain classes of criminal to death through referendum or voting in state elections for candidates favouring capital punishment. Majority opinion in some democratic countries, including the U.K., is still in favour of the death penalty.

It is reasonable to assume that if a majority is in favour of a particular thing in a democracy, their wishes should be seriously considered with equal consideration given to the downside of their views.

A fact that is conveniently overlooked by anti-capital punishment campaigners is that we are all ultimately going to die. In many cases, we will know of this in advance and suffer great pain and emotional anguish in the process. This is particularly true of those diagnosed as having terminal cancer.  It is apparently acceptable to be "sentenced to death" by one's family doctor without having committed any crime at all but totally unacceptable to be sentenced to death by a judge having been convicted of murder or drug trafficking (the crimes for which the majority of executions worldwide are carried out) after a fair and careful trial.

Although the imposition of the death penalty is supposed to conform to the ‘rarest of rare’ standard, it can be imposed in cases ranging from murder to narcotic offences to kidnapping for ransom. The regularity of its imposition also indicates that it is not considered an exceptional measure. Finally, capital punishment militates against the progressive international trend towards abolition .The ‘rarest of rare’ standard should only be an intermediate step to abolition .But India has maintained the doctrine for more than two decades now.

The Law Commission of India has taken up the subject suo moto due to the technological advances in the field of science, technology, medicine, anesthetics and since more than three decades have passed by after the 35th Report of the Law Commission on Capital Punishment, 1967 with reference to the mode of executing death penalty. The various modes of execution of death sentence as prevalent at that time in 1967 were studied by the Law Commission. The Commission concluded: “We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless…..”

However, the Commission didn’t find itself in a position to come to a firm conclusion on this point and said progress in the science of anesthetics and further study of the various methods, as well as the experience gathered in other countries and development and refinement of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject.

The Supreme Court held that the power of pardon, clemency, reprieve or remission of sentence to a convict exercised by the President or the Governor is subject to judicial review. While exercising such a power the President or the Governor has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.