What is capital punishment ?
Capital punishment is also known as a death penalty, execution of an offender sentenced to death after conviction of a criminal offence by a court of law. Indian criminal justice system is one of the important parts of capital punishment.
In the 1980 Bachan singh judgment , the supreme court ruled that the death penalty should only be used in the “rarest of rare” cases,but it is not clear what defines the rarest of the rare .
In India , it is awarded for the most serious of crimes . It is awarded for heinousness and grievous crimes . Article 21 says that no person shall be deprived of ‘right to life’ which is promised to every citizen in India . In India , various offences such as criminal conspiracy ,murder ,war against the government , abetment of mutiny ,dacoity with murder , and anti-terrorism are punishable with death sentences under Indian Penal Code (IPC) . The president has the power to grant mercy in a case of death penalty . Bachan singh v. State of Punjab , the court held that capital punishment will only be given in rarest of rare cases.
Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. History of human civilization reveals that during no period of time capital punishment has been discarded as a mode of punishment5. Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century BCE), though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic6.
This finds support in the observation made by Sir Henry Marine who stated that "Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the procedure of questions".
CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES
❖ The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life, and contains important safeguards to be followed by signatories who retain the death penalty11
❖ Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the use of the death penalty against persons under the age of 18. As of July 2015, 195 countries had ratified the CRC13.
❖ In the evolution of international criminal law, the death penalty was a permissible punishment in the Nuremberg and Tokyo tribunals, both of which were established following World War II. Since then, however, international criminal courts exclude the death penalty as a permissible punishment15.
JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS
The Supreme Court in Shatrughan Chauhan case has recorded that the Home Ministry considers the following factors while deciding mercy petitions:
a) Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);
b) Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
c) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;
d) Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;
e) Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
f) Consideration of evidence in fixation of responsibility in gang murder case;
g) Long delays in investigation and trial etc .
By – SHAMBHAVI