CAPITAL PUNISHMENT AS DETERRENT

AUTHOR –KIRANMAI, Student at INVERTIS UNIVERSITY, Department of law, BAREILLY

ABSTRACT

Capital punishment is the Highest form of punishment in the criminal law based on deterrent theory of punishment , by deterrence means to abstain someone from doing any wrongdoing with the main aim to stop committing the crime against deterrence serves as main two aim , firstly deter the offender from committing crime again also set an example in the society by creating fear in their mind . It is notable that both crime and criminal are hatred in the society . According to Terrance mores , crime is what society say is a crime by that act is in violation of law . The chief purpose of punishment is to prevent evil doer and deterring their evil mind but such theory might be unsafe in applying all cases because circumstances can be different under which a person commits an offence . Courts are overburdened these days it’s hard to check the exact position and inquiry which the law demands deterrent is aim of punishment but it’s mode of operation should be changed. Holmes criticizes this theory of being immoral in as much measure of punishment is based on law givers Subjective opinion the court must rely rarest of rare doctrine while applying so in certain horrendous cases which disturb public order at large scale.

KEYWORDS : capital punishment, deterrent theory, immoral, rarest of rare, criminal law, offence .

DETERRENT THEORY OF PUNISHMENT

Deterrent means to abstain person from wrongdoing, the main aim of every punishment is to prevent the person from committing the crime which affects the whole society. By creating fear in the mind of other people for example if someone commits a crime then he must undergo for severe punishment people would get to know about severity or seriousness of penalty and creates fear and make them aware about consequences of such crime The result of every crime which affects society at large is punishment such principles tried to reform criminals and make them law abiding citizens basically deterrent is utilitarian in nature by the simply not to punish the person doing any legal act but also ensure that no further act will be committed again by any other or by the same person .In an article 2013 by Daniel s . nagin explained difference in the 21st century the nature and tendency of crime is advanced with the growing society often the police uses violence while making them arrest that creates or generates violence in the mind of offender the fear of court is worse than severe punishment that and offender face the crime rate increased and among the grave nature of crime increased at instant.

Are two types of deterrance one is specific and the other is general deterrence specific deterrents deals with specific individual but must be punished or for their misconduct but it might not prevent a person from doing the crime again while general deterrence deals with protection of general public interest when such as death penalty to prevent the criminals from the society.severity , certainty , celebrity measure the degree of punishment in sentencing based upon deterrence theory.

CAPITAL PUNISHMENT AS DETERRENCE: JUSTICE OR INJUSTICE

SUPREME COURT in State of Karnataka v. Sharanappa basanagonda aerogoudar (2002) stated that

The court must aware of true facts and circumstances under which the crime committed while granting sentence for deterrent offender .the interest of the society and all necessary facts should be drawn while determining the quantum of compensation court must reminded the need of punishment for having a different effect must be applied for a certain categories.

In another case of State of M.P. v Bala @Balaram (2005)

The court shows disregard to the principle of an eye for an eye and a tooth for a tooth. in today’s civilization punishment should be made by measuring the gravity of crime.

He go keep this idea of punishment to restore balance in the world by punishing the offender it means value of victims life equates for taking life of the offender is it so then what about justice rule of law and true sense in words of Gandhiji and I for an eye will make the whole world blind if everyone will think ultimately have to die one day. let it by committing any crime. The idea of reformative approach will be seized to operate HLA Hart view that punishment should not for only shake of denunciation but an appropriate or deserve punishment does serve as a denunciation , The societal pressure tends to move the direction of giving punishment is this prevent the society from crime peaceful and reformative means to more time but still have long lasting impact on the mind of not only offender but for others also.

Various countries like Venezuela , Papua New Guinea have the highest crime rate globally as 83.76 and 80.79% respectively . There are not so quite proof which is specifically provides death penalties seems as to stop commission of crime even after the Nirbhaya rape case although it was mandatory on need for giving them death when alti but still the rape cases is not settled .

LEGAL PROVISIONS OF DEATH PENALTY

The derivation of that form of punishment was first established in 18th century B.C. in code of kind Hammurabi of Babylon , provides death penalty for 25 different crimes it has existed in America since colonial time in India it provided under section 53 of Indian pinal code 1860 as one of the form of punishment several provisions given under this code which awarded death penalty as follows –

section 120 – if being a party of criminal conspiracy to commit a capital offence.
section 121- waging or attempting to wage war or a baiting veging of war against government of India.
Section 121 Waging, or attempting to wage war, or abetting waging of war, against the Government of India
Section 132 Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny
Section 194 Giving or fabricating false evidence with intent to procure a conviction of a capital offence
Section 302, 303 Murder
Section 305 Abetting the suicide of a minor
Section 364A Kidnapping, in the course of which the victim was held for ransom or other coercive purposes
376A, Criminal law amendment act, 2013 Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender
396 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.
Part II, Section 4 of Prevention of Sati Act Aiding or abetting an act of Sati
31A of the Narcotic Drugs and Psychotropic Substances Act Drug trafficking in cases of repeat offences
Section 354(3) of the Code of Criminal Procedure,1973 states that “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

However the several case prevalent with strong some specific conditions while awarding death punishment nature of crime severity, doctrine of rest of rare, certain mitigating and aggravating factor ,societal disparity or any other factor all must be taken into consideration while awarding the punishment.

DEATH PENALTY: RAREST OF RARE

The whole and soul purpose of punishment is to bring the reforms in the society and person who actuated with it but there are some specific crimes committed in horrendous manner requires a grave nature of punishment as awarded as ‘hanged till death’. There are certain examples of death penalty given in some cases

1) Muhammad Ajmal Amir Qasab , terrorist convicted for Mumbai terror attack and hanged on 21st November 2012 another Dhananjay Chatterjee who awarded death penalty for a conviction for rape of a 14-year old girl.

2) Yakub Menon for Mumbai blast in 1933 and hanged on 30th July 2015.

3) also in the most famous and grave Nirbhaya rape case which was brutally raped and killed for that four convicts were hanged in 2020.

Various case laws among these mostly challenges the constitutional validity of capital punishment in Jagmohan Singh versus state of Uttar Pradesh, the court concluded that it does not violates article 14,19 and 21 the Supreme court has that choice of test sentence empowered through procedure established by law . In Bachan Singh versus state of Punjab , the court laid down the rarest of rare doctrine as a guiding tool for court while awarding capital punishment.

In Rajendra prashad versus state of Uttar Pradesh the court ruled that death penalty would not awarded until there is a risk of social security or seriousness. 3 types of cases in which that penalty would be awarded.

in white collar crimes cases
in crime against social order
For eliminating dangerous killer.

THE INTERNATIONAL ASPECTS OF CAPITAL PUNISHMENT

ARTICLE 6 OF ICCPR ( international covenant on civil and political rights) permits the death penalty in certain limited circumstances as”nothing in this article shall be invoked to delay or prove to prevent the abolition of capital punishment by any state party to the present covenant”.

Also in 1984 UN economic and social council provides safeguards for the right of those person who faces that penalty and second of optional protocol to ICCPR prohibits or abolition of death penalty.

Also there are various reports in UN General assembly which restrict or minimize the use of death penalty in cases accordingly number of cases punishable with that penalty has been reduces.

CONCLUSION

There was a steep rising of death penalty 21% from 2020 and more in UP upto 86% . Even the one of the purpose of tetrain theories to create fear in the mind of offender but it still practically if you could find out that this data increasing more death penalty means the country has more grave of offender there is no reformative changes in the behaviour however there could be various circumstances under which an individual commits a crime there might be necessity or some other motive The court must truly examine the root cause and why such act is committing . also should make such policies which could have the nation to deter at basic stage by treating the element of crime through reformative measure from their mind. There must focus on reformative approach and taught them about importance of life and personal liberty of the individual.

” True justice is restorative , it heals wounds ,death penalty only creates new wounds.”

(SHANE CA AIBORANE)