CAPITAL PUNISHMENT

BY DR FAIZ AHMAD,JR ,DEPARTMENT OF FORENSIC MEDICINE J,N,M,C A.M.U. ALIGARH ,U.P

CAPITAL PUNISHMENT

The term capital originates from the

latin capitalis, literally "regarding the

head" (referring to execution by

beheading).

capital punishment, death

penalty or execution is punishment by

death.

The sentence that someone be punished

in this manner is a death sentence.

Crimes that can result in a death penalty

are known as capital crimes or capital

offences.

ANCIENT HISTORY

 Eighteenth Century B.C. Code of King

Hammaurabi of Babylon, which codified

the death penalty for 25 different crimes.

Fourteenth Century B.C.'s Hittite Code;

Seventh Century B.C.'s Draconian Code of

Athens, which made death punishment for

all crimes;

Fifth Century B.C.'s Roman Law of the

Twelve Tablets. Death sentences were

carried out by means as crucifixion,

drowning, beating to death, burning alive,

and impalement.

MIDDLE AGES

In medieval and early modern

Europe, before the development

of modern prison systems, the

death penalty was also used as a

generalized form of punishment.

 During the reign of Henry

VIII ,of England as many as

72,000 people are estimated to

have been executed.

In England, the Buggery Act 1533

stipulated hanging as punishment

for "buggery". James Pratt and John

Smith were the last two Englishmen

executed for sodomy in 1835

The 12th century Jewish legal

scholar, Moses Maimonides wrote,

"It is better and more satisfactory to

acquit a thousand guilty persons

than to put a single innocent man to

death”

The Abbasid Caliphs

in Baghdad , such as Al-

Mu'tadid, were often cruel in

their punishments. For hudud

crimes such as zina

(consensual extramarital or

homosexual sex) and apostasy

(leaving Islam and converting

to another religion),

MODERN ERA

Fundamental to the concept of nation state is the idea of citizenship.

This caused justice to be increasingly associated with equality and universality,

which in Europe saw an emergence of the concept of natural rights, emergence of standing police forces and permanent penitential institutions.

By 1820 in Britain, there were 160 crimes that were punishable by death, crimes such as:

shoplifting, petty theft, stealing cattle, or cutting down trees in

public place. The severity of the so-

called Bloody Code,

MOVEMENTS TOWARDS PAINLESS EXECUTION

Trends in most of the world have long been to move to less painful,

or more humane, executions.

France developed the guillotine in the final years of the 18th

century,

Britain banned drawing and quartering in the early 19th century.

 Hanging by turning the victim off a ladder or by kicking a stool or a

bucket, which causes death by suffocation, was replaced by long

drop "hanging“ where the subject is dropped a longer distance to

dislocate the neck and sever the spinal cord.

Shah of Persia introduced throat-cutting and blowing from a gun as

quick and painless alternatives to more tormentous methods of

executions used at that time.

 In the U.S., the electric chair and the gas chamber were introduced

as more humane alternatives to hanging, but have been almost

entirely superseded by lethal injection,

some countries still employ slow hanging methods, beheading by

sword and stoning.

METHODS OF CAPITAL PUNISHMENT

o Crushing by elephant,

o Devouring by animals,

(lions ,alligators, crocodil

es, piranha, and sharks.)

o Stings from scorpions and

bites by snakes, spiders,

etc.

Official chronicle of the reign of Akbar, the third Mughal emperor

o Tearing apart by horses

(medieval Europeand Imp

erial China, with four

horses quartering).

o Trampling by horses ( Al-

Musta'sim, the

last Abbasi Caliph in Bag

hdad).

o Back breaking

(A Mongolian method of execution

that avoided the spilling of blood on

the ground ( the Mongolian leader

Jamukha was probably executed

this way in 1206).

o Blowing from a gun

(Tied to the mouth of a cannon,

which is then fired). Suppression of the Indian Revolt by

the English

Blood Eagle (Cutting the skin of the

victim by the spine, breaking the ribs so they resembled blood-stained wings, and pulling the lungs out through the wounds in the victim's back. Used by the Vikings.

o Boiling to death

(This penalty was carried out using

a large cauldron filled with water,

oil, tar, tallow, or even molten

lead).

o Breaking wheel

(Also known as the Catherine

wheel, after a saint who was

allegedly sentenced to be executed

by this method)

The London Dungeon. Boiling in oil

o Buried alive, (Traditional punishment

for Vestal virgins who had broken their vows)

o Burning, (famous as a method of

execution for heretics and witches in native america)

o Cooking, by Brazen Bull

Chinese civilians being buried alive during the Nanking Massacre

o Crucifixion

(Roping or nailing to a wooden

cross or similar apparatus (such as

a tree) and allowing to perish)

o Decapitation,

Also known as beheading. One

of the most famous execution

methods is execution by guillotine.

(saudi arabia ,iran,ymen,qatar)

o Disembowelment, seppuk

u (harakiri), which was

sometimes used as a form

of capital punishment.

o Drawing and

quartering(English method

of executing those found

guilty of high treason)

Falling, The victim is thrown off

a height or into a hollow Flaying, The skin is removed from

the body Garrote Used most commonly

in Spain and in former Spanish colonies.

Gibbeting,

The act of gibbeting refers to the

use of a gallows-type structure

from which the victim was

usually placed within a cage

which is then hung in a public

location and the victim left to die

to deter other existing or

potential criminals.

(England,USA,canada)

Hanging: One of the most common

methods of execution, still in use in a

number of countries,

Immurement:The confinement of a person

by walling off any exits; since they were

usually kept alive through an opening, this

was more a form of imprisonment for

life than of capital punishment (Elisabeth

Báthory, who lived for four more years

after having been immured)

Impalement: penetration of human body

by an object like stake,pole ,hook either

partial or complete.

Keelhauling ,

European method of punishment.

Scaphism,

An Ancient Persian method of

execution in which the condemned

was placed in between two boats,

force fed a mixture of honey and milk,

and left floating in a stagnant pond.

The victim would then suffer from

severe diarrhea, which would attract

insects that would burrow, nest, and

feed on victim.

Shooting By cannon By firing squad By a single shot (neck

shot,on a kneeling prisoner, as in China,maxico.)

Slow slicing: china,vietnam. Smothering

(Asphyxia)Suffocation in ash

Starvation /Dehydration

Stoning, The condemned is

pummeled by stones thrown by a group of people with the totality of the injuries suffered leading to eventual death.

Arab,iran,iraq,afganistan,qtar,indonesia,pakistan’etc

RELIGIOUS VIEWS

Buddhism

There is disagreement among Buddhists as to whether or not Buddhism forbids the death

penalty.

The first of the Five Precepts (Pancha-sila) is to abstain from destruction of life.

Chapter 10 , Dhammapada states:

Everyone fears punishment; everyone fears death, just as you do. Therefore you do not kill

or cause to be killed.

Chapter 26, Dhammapada, states,

"Him I call a brahmin who has put aside weapons and renounced violence toward all

creatures. He neither kills nor helps others to kill."

Many stories in Buddhist scripture stress the superior power of the Buddha's teaching to 

rehabilitate murderers and other criminals.

CHRISTIAN

Views on the death penalty in Christianity run a spectrum of opinions, from

complete condemnation of the punishment, seeing it as a form of revenge and

as contrary to Christ's message of forgiveness,

Jesus Christ in the Gospel of Luke and the Gospel of Matthew, message to his

followers that one should "Turn the other cheek" and his example in the story 

Pericope Adulterae, in which Jesus intervenes in the stoning of an adulteress,

are generally accepted as his condemnation of physical retaliation ).

Many Christians have believed that Jesus' doctrine of peace speaks only to

personal ethics and is distinct from civil government's duty to punish crime.

HINDUISM

A basis can be found in Hindu teachings both for permitting and forbidding

the death penalty.

Hinduism preaches ahimsa (or ahinsa, non-violence), but also teaches that

the soul cannot be killed and death is limited only to the physical body. The

soul is reborn into another body upon death (Moksha)

The religious, civil and criminal law of Hindus is the Dharmaśāstras and the 

Arthasastra.

The Dharmasastras describe many crimes and their punishments and call for

the death penalty in several instances, including murder and righteous warfare.

ISLAM

In the four primary schools of Sunni fiqh (Islamic jurisprudence) and the two

primary schools of Shi'a fiqh, certain types of crimes mandate capital punishment.

crimes against Allah and require capital punishment in public. 

 Apostasy (leaving Islam to become an atheist or convert to another religion such as

Christianity)

 Fasad (mischief in the land, or moral corruption against Allah, social disturbance

and creating disorder within the Muslim state)

 Zina (consensual heterosexual or homosexual relations not allowed by Islam).

Qisas,where sharia permits capital punishment, for intentional

or unintentional murder.

In the case of death, sharia gives the murder victim's nearest

relative or Wali (ولي) a right to, if the court approves, take the

life of the killer.

In case of Qisas-related capital punishment, sharia offers the

victim's guardian the option of Diyya (monetary

compensation).

JUDAISM

The official teachings of Judaism approve the death penalty in principle

but the standard of proof required for application of death penalty is

extremely stringent.

In practice, it has been abolished.

The 12th-century Jewish scholar, Maimonides said:

"It is better and more satisfactory to acquit a thousand guilty persons

than to put a single innocent one to death

The state of Israel retains the death penalty only for Nazis convicted of

crimes against humanity.

CRIMES AND OFFENDERS PUNISHABLE BY DEATH

Aggravated Murder,

Murder is punishable by death under Article 302 of the

Penal Code,  and in Bachan Singh v. State of Punjab,

India's Supreme Court held that the death penalty was

constitutional only when applied as an exceptional

penalty in ”the rarest of the rare” cases. 

CAPITAL OFFENSES

120B of IPC: Being a party to a criminal conspiracy to

commit a capital offense.

121 of IPC: Waging, or attempting to wage war, or

abetting waging of war, against the Government of India.

132 of IPC: Abetting a mutiny in the armed forces (if a

mutiny occurs as a result), engaging in mutiny.

194 of IPC: Giving or fabricating false evidence with

intent to procure a conviction of a capital offense.

302, 303 of IPC :Murder

305 of IPC: Abetting the suicide of a minor, mentally

ill person, or intoxicated person.

Part II Section 4 of Prevention of Sati Act: Aiding or

abetting an act of Sati.

364A of IPC: Kidnapping, in the course of which the

victim was held for ransom or other coercive purposes

31A of the Narcotic Drugs and Psychotropic Substances

ActDrug trafficking in cases of repeat offenses.

396 of IPC :Banditry with murder - in cases where a

group of five or more individuals commit banditry and

one of them commits murder in the course of that crime,

all members of the group are liable for the death penalty.

376A of IPC and Criminal Law (Amendment) Act,

2013Rape if the perpetrator inflicts injuries that result in

the victim's death or incapacitation in a persistent

vegetative state, or is a repeat offender.

Bombay Prohibition (Gujarat Amendment) Bill,

2009In Gujarat only - Manufacture and sale of poisoned

alcohol which results in death.

CATEGORIES OF OFFENDERS EXCLUDED FROM THE DEATH PENALTY

Individuals Below Age 18 At Time of Crime.

According to the Juvenile Justice (Care and Protection

of Children) Act 2000, individuals who were under the

age of 18 at the time of the crime cannot be executed.

Between 2005 and May 2008, Iran, Pakistan, Saudi

Arabia, Sudan and Yemen were reported to have

executed child offenders, the most being from Iran. 

Pregnant Women.

According to a 2009 amendment, a pregnant woman

sentenced to death must be granted clemency.

 Intellectually Disabled.

According to the Indian Penal Code, individuals who

were mentally ill at the time of the crime and who did

not understand the nature of the act or know that the act

was wrong or against the law cannot be held criminally

liable. 

This could be interpreted to exclude intellectually

disabled persons from the death penalty.

Mentally Ill.

According to the Indian Penal Code, individuals who were mentally

ill at the time of the crime and who did not understand the nature of

the act or know that the act was wrong or against the law cannot be

held criminally liable. 

Under Bachan Singh v. State of Punjab, advanced age may be a

mitigating factor in sentencing, although it does not have the same

exclusionary effect as youth does.

YEAR OF LAST KNOWN EXECUTION

July 30, 2015(central jail,nagpur)

hanging of Yakub Memon,

convicted of financing the 1993

Mumbai bombings.

February 9, 2013(Tihar jail,delhi)

hanging of Muhammad Afzal,

convicted of plotting the 2001

attack on India’s Parliament,

November 21, 2012(Yerwada

jail,pune) hanging of Mohammad

Ajmal Amir Qasab ,2008 Mumbai

attack gunman,

Dhananjoy Chatterjee, August14,

(Alipore central jail,kolkata) 2004

for the murder and rape of a 14-year

old girl.

This, in turn, was the country’s first

execution since 1995.

CLEMENCY IN THE INDIAN CONSTITUTION

After the award of the death sentence by a sessions (trial) court,the

sentence must be confirmed by a High Court to make it final.

Once confirmed, the condemned convict has the option of appealing to

the Supreme Court.

If this is not possible or if the Supreme Court turns down the appeal or

refuses to hear the petition, the condemned person can submit a ‘mercy

petition’ to the President of India and the Governor of the State.

Power of the President

The present day constitutional clemency powers of the President and Governors originate

from the ”Government of India Act 1935 “.

Constitutional power

Article 72(1) of the Constitution of India states:

The President shall have the power to grant pardons, reprieves, respites or

remissions of punishment or to suspend, remit or commute the sentence of any

person convicted of any offence.

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any

law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

METHOD OF EXECUTION IN INDIA

The execution of death sentence in India is carried out by 

hanging by the neck till death.

Hanging

The Code of Criminal Procedure (1898) called for the method of

execution to be hanging. The same method was adopted in the Code

of Criminal Procedure (1973). Section 354(5) of the above procedure

reads as "When any person is sentenced to death, the sentence shall

direct that the person be hanged by the neck till the person is dead."

Shooting

The Army Act and Air Force Act also provide for the execution of the

death sentence.Section 34 of the Air Force Act, 1950 empowers the court

martial to impose the death sentence for the offences mentioned in section

34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides

for the form of the sentence of death.

"In awarding a sentence of death, a court-martial direct that the offender

shall suffer death by being hanged by the neck until he be dead or shall

suffer death by being shot to death".

The Army Act, 1950, and the Navy Act, 1957 also provide for the similar

provisions as in The Air Force Act, 1950.

CONTROVERSY AND DEBATE

Death penalty opponents regard the death penalty as inhumane and criticize it

for its irreversibility and lacks of deterrent effect.

There are many organizations worldwide, such as Amnesty International,  

American Civil Liberties Union (ACLU), that have abolition of the death

penalty as a fundamental purpose.

Advocates of the death penalty argue that it deters crime,is a good tool for

police and prosecutors to makes sure that convicted criminals do not offend

again.

Execution discriminates against minorities and the poor, and that it

encourages a "culture of violence" and violates human rights.

RETRIBUTION

Supporters argued that death penalty is morally justified when

applied in murder, multiple homicide, child murderers, cop killers, 

torture murder and mass killing such as terrorism, massacre, or 

genocide.

Some even argue that not applying death penalty in latter cases is

patently unjust.

This argument is defended by New York Law School's Professor 

Robert Blecker,"who says that the punishment must be painful in

proportion to the crime.

HUMAN RIGHTS

Capital punishment is the worst violation of human

rights.

Human rights activists oppose the death penalty, calling

it "cruel, inhuman and degrading punishment".

 Amnesty International considers it to be "the ultimate

irreversible denial of Human Rights”

WRONGFUL EXECUTION

Capital punishment was abolished in the United Kingdom in part because

of the case of Timothy Evans, an innocent man who was hanged in 1950.

capital punishment leads to miscarriage of justice through the wrongful

execution of innocent persons.

 DNA evidence prevented the pending execution of more than 15death

row inmates in the US,

 Amnesty International argues that in Singapore "the Misuse of Drugs

Act” contains a series of presumptions which shift the burden of proof

from the prosecution to the accused.

RACIAL, ETHNIC AND SOCIAL CLASS BIAS

Capital punishment is being used more often against

criminals from lower socioeconomic backgrounds, racial

and ethnic minorities ,than those criminals who come

from a privileged background; and that the background

of the victim also influences the outcome.

White Americans are more likely to support the death

penalty when told that it is mostly applied to African

Americans.

INTERNATIONAL VIEWS

The United Nations introduced a resolution during the

General Assembly's 62nd sessions in 2007 calling for a

universal ban and deals with human rights issues,

Again in 2008, in the UN General Assembly (Third

Committee) on 20 November. 105 countries voted in

favour, 48 voted against and 31 abstained.

European Convention on Human Rights.

6th Protocol (abolition in time of peace)

13th Protocol (abolition in all circumstances)

The same is also stated under the Second Protocol in the 

American Convention on Human Rights,

 European Union and  Council of Europe have made the abolition of the death

penalty (during time of peace) a requirement of membership.

Russia is a member of the Council of Europe, and the death penalty remains in its

law,

Russia has not executed anyone since 1996(abolitionist in practice), Kazakhstan

 (abolitionist for ordinary crimes only)

DEATH PENALTY WORLD MAP

ARGUMENTS IN FAVOUR OF ABOLITION OF CAPITAL PUNISHMENT

Ambiguity and lack of uniformity in what constitutes the 'rarest of the rare cases‘

Dhananjoy Chatterjee cse: security guard had raped and murdered an 18 year old girl,

Soni Thomas's case: rape and murder of an 11 year old girl by the co-paying guest,

Mohd Chaman's case: life sentence for the murder and rape of a one and half year old girl.

The murders were all equally brutal and shocking and arguably fulfilled the 'rarest of the rare' criteria, but the court for reasons recorded in the judgment did not deem fit to give capital punishment.

CAPITAL PUNISHMENT IS CRUEL, DEGRADING AND DISPROPORTIONATE

capital punishment is founded on vengeance and

retribution, and not on reformation of the criminals and

prevention of future crimes,which is the purpose of

punishment, i.e., the deterrence argument.

Recent crime figures from abolitionist countries fail to

show that abolition has harmful effects.

FALLIBILITY OF JUDGMENT IN CASE OF CAPITAL PUNISHMENT

A judgment being given by human beings based on evidence produced

in courts, the possibility of human error cannot be ruled out and the

irreversibility of death penalty makes it dangerous.

The risk of executing the innocent will never be eliminated.

Justice P.N. Bhagwati,in Bachan Singh' case has made two astute

observations.

Firstly, that it is impossible to eliminate the chance of judicial error.

Secondly,death penalty strikes mostly against the poor and deprived

sections of society.

UNFAIR DISTRIBUTION OF PUNISHMENT: DEATH PENALTY DISCRIMINATES BETWEEN THEPRIVILEGED AND THE UNDERPRIVILEGED Justice Bhagwati in Bachan Singh’s case pointed out that death penalty strikes most

against the poor and deprived sections of society.

Most of the convicted persons are poor and illiterate, who cannot afford a competent

lawyer.

The defence lawyers provided by the State are often incompetent or do not take

serious interest in the case.

Justice Chinnappa Reddy, experience that the burden of capital punishment is upon

the ignorant, the impoverished and the underprivileged.

In USA,those who kill white persons are more likely to be sentenced to death than

those who kill blacks, regardless of the race of the defendant.

DELAY IN EXECUTION

It is an undisputed fact that litigation in India is a very

time consuming affair.

Extensive delay in the execution of a sentence of death

does not serve any kind of purpose and is sufficient to

invoke Article 21and demand its substitution by the

sentence of life-imprisonment.

REFORMATIVE APPROACH

In Narotam Singh v. State of Punjab46 the Supreme

Court has taken the

following view:

“Reformative approach to 'punishment should be the

object of criminal law, in order to promote rehabilitation

without offending community conscience and to secure

social justice.”

MORAL GROUNDS

By allowing death penalty morally nothing is achieved

except more death,suffering and pain.

Secondly, why should a person be allowed to die a

quick,almost painless death if he murdered another

person violently?.

Death penalty legitimizes an irreversible act of violence

by the state.

ARGUMENTS AGAINST ABOLITION OF CAPITAL PUNISHMENT

Delay in executions is no ground for abolition

A considerable time between imposition of the capital

punishment and the actual execution is unavoidable,

given the procedural safeguards required by the courts in

such cases.

APPROPRIATE PUNISHMENT IS IMPERATIVE FOR SECURITY IN SOCIETY

In Mahesh v. State of M.P.,the Apex Court expressing

a fear observed:

“ to give the lesser punishment for the appellants would

be to render the justicing system of this country. The

common man will lose faith in courts. In such a case,

he understands and appreciates the language of

deterrence more than the reformative jargon.”

CHANCES OF MISTAKE BY THE JUDICIARY ARE NOT POSSIBLE

Apex Court has confined capital punishment to the rarest of

rare cases so few people, after long careful proceedings, are

awarded death penalty.

The sentence awarded by the Session Courts is subject to

automatic confirmation by the High Court of the concerned

state.

This eliminates even a single atom of judicial error, after such

a long purification process.

ARGUMENTS, BASED ON THE THEORIES OF PUNISHMENT DETERRENCE

If one assumes that death penalty will not operate as

deterrence on some criminals then no other lesser

punishment can logically deter them too.

LEGAL ARGUMENTS AGAINST ABOLITIONISTS

a. Crimes under grave and sudden provocation: For crimes committed in

the heat of the moment, death penalty is either not possible or is not

awarded.

b. Fundamental Right to Life: Article 21 of our Constitution

“No person shall be deprived of life or personal liberty except according

to procedure established by law”.

The implied meaning of Article 21 is that a person can be deprived of his life

or personal liberty according to procedure established by law.

THE STOCKHOLM DECLARATION, 1977

As per above declaration, death penalty not to be

awarded arbitrarily, it must be confined only to

extremely heinous crimes.

Article 20 and 21and Section 354 (3) of the

CrPC.59,declares the same.

MORAL GROUNDS

Highest penalty for taking of human life that we affirm

the highest value of human life.

MURDER V. CAPITAL PUNISHMENT

Murder and execution are morally equivalent because both of them kill

people.

Wrongful confinement of an innocent person by a civilian and imprisonment

of an offender by the state are morally equivalent, because they both confine a

person.

Murder' term is used for unlawful killings only and capital punishment by the

judiciary is not unlawful

Moreover every type of killing even by civilians is not murder.

Thus there is only a legal difference between killing people and capital

punishment.

THANKS

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