Capital punishment by DR FAIZ AHMAD
Transcript of Capital punishment by DR FAIZ AHMAD
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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