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Capital Punishment

A Critical Analysis of Capital Punishment in India and EU

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Capital punishment is an execution practise as punishment for a serious crime after a proper legal trial. Capital punishment is provided when the offence is proved by a court of law. It is generally provided for grievous crimes such as murder, dacoity with murder, abetment of mutiny and other serious offences against humanity.

In India, the death penalty is awarded in rarest of rare cases; recently, capital punishment was awarded for Delhi gangrape offenders. The Human Rights organisation argues capital punishment should be abolished as it affects the individual’s right. In the European Union, except Belarus and Russia, all other countries have completely abolished the death penalty.

Capital punishment in India:

In India, capital punishment is provided for serious offences. The basic aim of imposing punishment is to ensure the offender would not do the same offences again and to make people fear of punishment. Capital punishment is legally enforced in India (Example- Delhi gang Rape case). If the court finds life imprisonment is insufficient for the offence done, it would impose the death penalty as punishment.

In India, different kinds of punishments are provided on the basis of intention, intensity, and circumstances of the offence. According to Section- 53 of Indian Penal Code, 1860, Punishments such as death penalty, imprisonment for life, Rigorous imprisonment, simple imprisonment with or without fine, forfeit of property and fine are imposed for offences. 

In India, capital punishments are awarded for most grievous and serious offences such as murder, Dacoity with murder, abetting mutiny, Anti-terrorism, Antiterrorism and criminal conspiracy The death sentence can be stopped from the execution or be pardon by the honourable president and governor. In order to commute the imposed punishment, a mercy petition can be presented by the offender to the president, but it is up to the president to accept or reject it.

In India the life and liberty of every individual is protected under Article -21 of the Indian constitution.

Case laws:

Jagmohan V. State of U.P

In the Jagmohan V. State of U.P, where the Allahabad High court pronounced death sentence under section 302 of Indian penal code, 1860. The appellants made an appeal in the Honourable Supreme court where by analysing the motive and circumstances of offence it dismissed the appeal. The Supreme court in this judgement upheld capital punishment as it does not violate Article- 14, Article -19 and Article- 21 of the Indian constitution.

Bachan Singh V. State of Punjab:

Bachan Singh V. State of Punjab was handled by 5 judge constitutional bench where the Honourable supreme court declared that capital punishment would be provided in rare cases and retained death penalty.

Mithu V. State of Punjab:

Mithu V. State of Punjab is one of the landmark cases where the Honourable Supreme court declared section- 303 of Indian Penal Code as ‘unconstitutional’ which is against the judgement provided in Bachan Singh V. State of Punjab.

Section – 303 of Indian Penal Code, 1860 states that, a death sentence to persons who commit murder on a sentence of life imprisonment already.

Method of execution in India:

In India capital punishment is executed in two(2) ways, they are,

  1. By hanging and
  2. By shooting

  1. Hanging:

All capital punishments in India are mostly constituted by hanging. Hanging is a method of execution in the civilian court system. After Independence, the first death sentence was pronounced in the Mahatma Gandhi case. The Supreme court of India has stated that capital punishment can be imposed in rare cases only. ( Bachan Singh V. State of Punjab)

   2. Shooting

The Army Act and Air Force Act provides the implementation of capital punishment. As per the Army Act, 1950, capital punishment is executed by both hanging and shooting methods.

As per reports, a study was conducted in Delhi by national law university where it recorded 755 individuals have been harmed since independence India.

Is death penalty constitutional?

In India, the death penalty is constitutional. The death penalty is imposed when imprisonments for life as a punishment is found to be insufficient for the offence done. In India, the death penalty is not a mandatory punishment for all serious offences. In the Mithu V. State of Punjab, the honourable Supreme Court held that death penalty is not a mandatory punishment which should be imposed for all serious offences. In addition, it declared that mandatory death penalty is ‘unconstitutional’.

Capital Punishment in European Union:

In the European Union, except countries like Belarus and Russia, all other countries have completely abolished the execution of death penalty. They are bound by the European Convention on Human Rights (ECHR), particularly its article 2, which states that “Everyone’s right to life is protected by law”, and by its protocols No 6 and No 13. 

Of all the European countries, the first countries to abolish capital punishment was San Marino, Portugal, and the Netherlands. As of now, Belarus is the only country that still practices the execution of death penalty and the rest of them have abolished the death penalty. Russia has not abolished the death penalty yet, but have stopped the execution of the death penalty since 1996.

The European Union and the council of Europe firmly oppose the death penalty at all times and in all circumstances. They consider the death penalty means revenge, not justice, is a crucial, inhuman and degrading punishment contrary to the rights to life. 

142 countries, representing 74% of the UN member states, have already stopped providing death penalty either by not carrying out for a long time or by removing it from the penal code.

The council of Europe and the EU urges Belarus to abolish the death penalty. Because it is the only state to have the death penalty in penal code.

Legal instruments in Europe:

The European council has two protocols that are enforced to ensure people’s rights and are against the death penalty. They are, protocol no.6 and protocol no.13.

Protocol no.6- As per this protocol, the death penalty is prohibited. This has been ratified by all members of the European council except Russia. Still now, Russia has not ratified it but signed it.

Protocol no.13- As per this protocol, death penalty is prohibited in all circumstances. Except for countries like Azerbaijan and Russia, all other member states of the Council of Europe have signed protocol no.13. Armenia has signed but not yet ratified. Recently, Poland has signed this protocol 13 which prohibits the execution of the death penalty.

The 21st century:

In this 21st century, the only country that executed the death penalty in Europe is Belarus. Except for Belarus, no other member of European council has carried out executions in the 21st century.

Capital punishment is a controversial and debatable one. Many opponents of the death penalty considered the death penalty as an inhuman thing and argue it lacks in deterrent effect. At present, it is believed that nearly 170 countries have either abolished the death sentence or stopped executing it.

As per reports of Amnesty international, in 2019, there were at least 675 executions in 20 countries worldwide. And China is the country which imposed the highest number of death sentences worldwide.

EU and Human rights:

The main objective of European Union is to defend human rights. European Union  is an active participant in fighting against execution of death penalty worldwide. The EU fights to get rid of the death penalty in an exceedingly variety of ways:

  • It prohibits trade in goods that can be used for torture and execution
  • To encourage compliance with human rights the EU uses trade policy
  • It supports civil society organisations that raises awareness and monitor death penalty.
  • As a permanent observer in the UN, it supports every measure to end the death penalty.

In addition to this, the European parliament hosts debates condemning the actions of countries that use capital punishment. 

Recently, the European Union (EU) condemned the hanging of 4 convicts of Delhi gang rape case by calling it as a “crucial and inhumane punishment”.

Meanwhile, the International commission of Jurists (ICJ) also denounced the executions and urged the Indian government to introduce “systematic changes to the legal system that would prevent violence and improve access to justice for women”.

The UN Human Rights Committee said, the execution can’t be reconciled with full respect for the right to life, the abolition of the execution is both desirable and necessary for the enhancement of human dignity and development of human rights.

Every democratic constitution recognises Human rights. In India, the concept of human right is recognised in its preamble of the constitution. Human rights are implied as Fundamental rights and democratic rights. Human rights are essential for development of an individual and development of society. The Human rights law tries to abolish and limit the use of death penalty worldwide. 

The EU have abolished the death penalty and strives hard to abolish in worldwide. In country like India, the death penalty is provided in rarest of rare cases.

Endnotes:

  1. https://www.legalbites.in/law-of-capital-punishment-in-india/#_ftnref1
  2. https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/187
  3. https://theprint.in/theprint-essential/rarest-of-rare-history-of-death-penalty-in-india-and-crimes-that-call-for-hanging/383658/?amp
  4. https://www.indianbarassociation.org/constitutionality-of-death-penalty/
  5. https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world
  6. https://acadpubl.eu/hub/2018-120-5/1/98.pdf
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Karthikeyan P

Student, Central Law College

Karthikeyan is a 3rd-year law student of The Central Law College. His areas of interest are IPR, contract law and constitutional law. He is an enthusiastic knowledge seeker and a hard worker. For any clarifications, suggestion and feedback you can reach him at spkarthikeyansuvi@gmail.com

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