IS CAPITAL PUNISHMENT NECESSARY?

1) ADMINISTRATION OF JUISTICE:-

The most essential functions of the state are primarily two:

war and administratation of justice. If a state is not capable of

performing either or both of these functions, it cannot be called state.

According to salmonad, the administration of justice implies the

maintenance of right within a political community by means of the

physical force of the state. It is a modern and civilized substitute for

the primitive practice of private vengeance and violent self-help.

Salmond point out that if the force of the state is not used in all cases

to secure obedience, it does not mean that the control of the state has

disappeared. It merely indicated the final triumph supremacy of the

control of the state..

Hobbes says that without a common power to keep them all in

awe, it is not possible for individuals to live in society. Without it,

injustice unchecked and triumphant and the life of the people is

solitary, poor, nasty, brutish and short. And the condition observed by

the Hobbs in his era is not different as compare to today’s scenario.

Salmond points out that men do not have one reason in them and each

is moved by his own interests and passions. The only alternative is one

power over men. Man is by nature a fighting animal and force is the

ultimaratio of all mankind. Without a common power to keep them all

in awe, it is impossible for men to cohere in any but the most primitive

form of society. Without it civilization is unattainable. However orderly

a society may be , the element of fore is always present and operative.

It is suggested that force as an instrument for the coercion of mankind

is merely a temporary and provisional incident in the development of a

perfect civilization. To a large extent already, the element of force has

become merely latent and for the most part it is sufficient for the state

to declare the rights and duties of its subjects.

Social sanction is an efficient instrument only if it is associated with

and supplemented by the concentrated and irresistible force of the

community. Force is necessary to coerce the recalcitrant minority and

prevent them from gaining an unfair advantage over the law abiding

majority in a state. The conclusion is that the administration of justice

with the sanction of physical force of the state is unavoidable and

admits of no substitute.1

The origin and growth of administration of justice is identical with

origin and growth of man. The social nature of man demands that he

must live in society. While living so, man must have experienced a

conflict of interest and that created the necessity for providing for the

administration of justice. The second stage in the history of

administration of justice started with the rise of political states.

However, those states were not strong enough to regulate crime and

inflict punishment on the criminals. The law of private vengeance and

violent self-help continued to prevail,. The state merely regulated

private vengeance and violent self-help. The state also prescribed rules

for the regulation of private vengeance. The state enforced the

concept or a tooth for tooth, an eye for an eye.

2) PURPOSE OF CRIMINAL JUSTICE SYSTEM:-

The purpose of criminal justice is to punish the wrongdoer,, he is

punished by the state. The question arises, what is the purpose of

punishment or in other words, what is an end of criminal justice. From

very ancient times, a number of theories have been givn concerning

the purpose of punishment. Those theories may be broadly divided into

two classes. The view of one class of theories is that the end of

criminal justice is to protect and add to the welfare of the state and

1 V. D. Mahajan Jurisprudence and legal theory Fifth Edition Eastern Company 128-129.

society. The view of the other class of theories is that the purpose of

punishment is retribution. The offender must be made to suffer for the

wrong committed by him.

3) Meaning and definition of punishment:-

We can call punishment as an instrument to achieve the goal of

administration of justice. In other words punishment is method for

punishing the wrongdoer for his wrong. Punishing the offenders is a

primary function of all civil states. The drama of wrong doing and its

retribution has indeed been an unending fascination for human mind.

Punishment can be used as a method of reducing the incidence of

criminals behaviour either by deterring the potential offenders of by

incapacitating and preventing them from repeating the offence or by

reforming them into law-abiding citizens.

Punishment involves pain or suffering produced by design

and justified by some value that the sufferer is assumed to have

violated.

Jerome Hall has described punishment in the following terms: First,

punishment is inflicting pain. Second, it is coercive. Third, it is inflicted

in the name of the state, i. e., it is authorized. Fourth, it presupposes

rules, their violation and a formal determination of that expressed in a

judgment. Fifth, it is inflicted upon an offender who caused, committed

harm. Sixth, the extent or type of punishment is in some defended way

related to causing commission of the harm, and aggravated or

mitigated by reference to the personally of the offender, his motive

and temptation.2

The deliberate infliction of harm upon somebody, or the withdrawal of

some good from them, by an authority, in response to their being

2 Jerome Hall The Aims of criminal law, 1958.

supposed to have committed some offence. Sometimes punishment

may be inflicted upon an animal, or ritualistically upon an inanimate

thing. The philosophical problem with punishment is that since it

involves the infliction of some kind of harm, or deprivation of some

kind of good, it transgresses normal ethical boundaries, and therefore

requires specific ethical justification. The major elements in such a

justification have been felt to be: (i) retribution: if a person has inflicted

some harm on another, then justice requires retribution (see also

justice, retributive); (ii) reparation: if a person has harmed another,

then he owes a duty of reparation to the victim, which his punishment

provides; (iii) reformation: the harm inflicted teaches the criminal to

behave better in the future; (iv) deterrence: knowledge of the penalties

deters potential offenders; (v) prevention: an offender who is deprived

of opportunity (e.g. by being imprisoned) cannot repeat the offence.

Features (iii) and (iv) are often conjoined with (v), in an indirect

utilitarian approach, in which it is argued that a society with an

institution of punishment in place will enjoy better conditions of life

than any without it. A thought more popular among judges than

philosophers is that punishment simply expresses society's revulsion at

some kind of behaviour, and needs no other defence. The difficulty is

that judges are often revolted by too many things, such as long hair,

youth, and poverty.3

4) CAPITAL PUNISHMENT:-

Capital punishment, also called the death penalty, is the execution of a

convicted criminal by the state as punishment for crimes known as

capital crimes or capital offences. Historically, the execution of

criminals and political opponents was used by nearly all societies—

3 http://www.answers.com/topic/punishment?cat=biz-finsds4

both to punish crime and to suppress political dissent. Among

countries around the world, almost all European and many Pacific Area

states (including Australia, New Zealand and Timor Leste), and Canada

have abolished capital punishment. In Latin America, most states have

completely abolished the use of capital punishment, while some

countries, however, like Brazil, allow for capital punishment only in

exceptional situations, such as treason committed during wartime. The

United States, Guatemala, most of the Caribbean and the majority of

democracies in Asia (e.g. Japan and India) and Africa (e.g. Botswana

and Zambia) retain it.

In most places that practice capital punishment today, the death

penalty is reserved as punishment for premeditated murder,

espionage, treason, or as part of military justice. In some countries

sexual crimes, such as rape, adultery and sodomy, carry the death

penalty, as do religious crimes such as apostasy (the formal

renunciation of one's religion). In many retentionist countries

(countries that use the death penalty), drug trafficking is also a capital

offense. In China human trafficking and serious cases of corruption are

also punished by the death penalty. In militaries around the world

courts-martial have imposed death sentences for offenses such as

cowardice, desertion, insubordination, and mutiny. Capital punishment

is a very contentious issue in some cultures. Supporters of capital

punishment argue that it deters crime, prevents recidivism, and is an

appropriate form of punishment for the crime of murder. Opponents of

capital punishment argue that it does not deter criminals more than

life imprisonment, violates human rights, leads to executions of some

who are wrongfully convicted, and discriminates against minorities and

the poor.4

4 http://en.wikipedia.org/wiki/Capital_punishment

The latest country to abolish the death penalty for all crimes was

Rwanda in mid 2007, until the government of Gabon announced on

September 14, 2007 that it, too, will no longer apply capital

punishment.

5) HISTORY OF CAPITAL PUNISHMENT:-

The use of formal execution extends at least to the beginning of

recorded history. Most historical records as well as various primitive

tribal practices indicate that the death penalty was a part of their

justice system. Communal punishment for wrongdoing generally

included compensation by the wrongdoer, corporal punishment,

shunning, banishment and execution. However, within a small

community, crimes were rare and murder was almost always a crime

of passion. Moreover, most would hesitate to inflict death on a member

of the community. For this reason, execution and even banishment

were extremely rare. Usually, compensation and shunning were

enough as a form of justice However; these are not effective responses

to crimes committed by outsiders. Consequently, even small crimes

committed by outsiders were considered to be an assault on the

community and were severely punished. The methods varied from

beating and enslavement to executions. However, the response to

crime committed by neighbouring tribes or communities included

formal apology, compensation or blood feuds.

A blood feud or vendetta occurs when arbitration between families or

tribes fails or an arbitration system is non-existent. This form of justice

was common before the emergence of an arbitration system based on

state or organized religion. It may result from crime, land disputes or a

code of honour. "Acts of retaliation underscore the ability of the social

collective to defend it and demonstrate to enemies (as well as

potential allies) that injury to property, rights, or the person will not go

unpunished." However, in practice, it is often difficult to distinguish

between a war of vendetta and one of conquest.

For most of recorded history, capital punishments were often cruel and

inhuman. Severe historical penalties include breaking wheel, boiling to

death, flaying, slow slicing, disembowelment, crucifixion, impalement,

crushing, stoning, execution by burning, dismemberment, sawing,

scaphism, or neck lacing.

Elaborations of tribal arbitration of feuds included peace settlements

often done in a religious context and compensation system.

Compensation was based on the principle of substitution which might

include material (e.g. cattle, slave) compensation, exchange of brides

or grooms, or payment of the blood debt. Settlement rules could allow

for animal blood to replace human blood, or transfers of property or

blood money or in some case an offer of a person for execution. The

person offered for execution did not have to be an original perpetrator

of the crime because the system was based on tribes, not individuals.

Blood feuds could be regulated at meetings, such as the Viking things.

Systems deriving from blood feuds may survive alongside more

advanced legal systems or be given recognition by courts (e.g. trial by

combat). One of the more modern refinements of the blood feud is the

duel.

In certain parts of the world, nations in the form of ancient republics,

monarchies or tribal oligarchies emerged. These nations were often

united by common linguistic, religious or family ties. Moreover,

expansion of these nations often occurred by conquest of neighbouring

tribes or nations. Consequently, various classes of royalty, nobility,

various commoners and slave emerged. Accordingly, the systems of

tribal arbitration were submerged into a more unified system of justice

which formalised the relation between the different "classes" rather

than "tribes". The earliest and most famous example is Code of

Hammurabi which set the different punishment and compensation

according to the different class/group of victims and perpetrators. The

Torah (Jewish Law), also known as the Pentateuch (the first five books

of the Christian Old Testament), lays down the death penalty for

murder, kidnapping, magic, violation of the Sabbath, blasphemy, and a

wide range of sexual crimes, although evidence suggests that actual

executions were rare. A further example comes from Ancient Greece,

where the Athenian legal system was first written down by Draco in

about 621 BC: the death penalty was applied for a particularly wide

range of crimes. The word draconian derives from Draco's laws.

Similarly, 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. For example, in 1700s

Britain, there were 222 crimes which were punishable by death,

including crimes such as cutting down a tree or stealing an animal.

Thanks to the notorious Bloody Code, life in 18th century (and early

19th century) Britain was a hazardous place. For example, Michael

Hammond and his sister, Ann, whose ages were given as 7 and 11,

were reportedly hanged at King's Lynn on Wednesday, the 28th of

September 1708 for theft. The local press did not, however, consider

the executions of two children newsworthy.

Although many are executed in China each year in the modern age,

there was a time in Tang Dynasty China when the death penalty was

actually abolished altogether.[31] This was in the year 747, enacted by

Emperor Taizong of Tang (r. 712-756), who before was the only person

in China with the authority to sentence criminals to execution. Even

then capital punishment was relatively infrequent, with only 24

executions in the year 730 and 58 executions in the year 736.[31] Two

hundred years later there was a form of execution called Ling Chi, slow

slicing, or death by/of a thousand cuts, used in China from roughly 900

CE to its abolition in 1905.

Despite its wide use, calls for reform were not unknown. The 12th

Century Sephardic 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." He argued that executing an accused

criminal on anything less than absolute certainty would lead to a

slippery slope of decreasing burdens of proof, until we would be

convicting merely "according to the judge's caprice." His concern was

maintaining popular respect for law, and he saw errors of commission

as much more threatening than errors of omission.

The last several centuries have seen the emergence of modern nation-

states. Almost 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. Another important aspect is that emergence

of standing police forces and permanent penitential institutions. The

death penalty becomes an increasingly unnecessary deterrent in

prevention of minor crimes such as theft. Additionally, in countries like

Britain, law enforcement officials became alarmed when juries tended

to acquit non-violent felons rather than risk a conviction that could

result in execution the 20th century was one of the bloodiest of the

human history. Massive killing occurred as the resolution of war

between nation-states. A large part of execution was summary

execution of enemy combatants. Also, modern military organizations

employed capital punishment as a means of maintaining military

discipline. In the past, cowardice, absence without leave, desertion,

insubordination, looting, shirking under enemy fire and disobeying

orders were often crimes punishable by death. One method of

execution since firearms came into common use has almost invariably

been firing squad. Moreover, various authoritarian states—for example

those with fascist or communist governments—employed the death

penalty as a potent means of political oppression. Partly as a response

to such excessive punishment, civil organizations have started to place

increasing emphasis on the concept of human rights and abolition of

the death penalty.

6) CAPITAL PUNISHMENT IN UNITED STATES:-

Capital Punishment in the United States is officially sanctioned by 38 of

the 50 states, as well as by the federal government and the military.

The overwhelming majority of executions are performed by the states;

the federal government maintains the legal power to use capital

punishment but does so relatively infrequently. Each state practicing

capital punishment has different laws with huge diversities regarding

its methods and crimes which qualify; no state may execute someone

for a crime committed before the age of 18. The state of Texas has

performed more executions than any other states since the resumption

of the death penalty in 1976; prior to that date, Virginia had led the

nation. Capital punishment is a controversial issue in the U.S. with

many prominent organizations and individuals participating in the

debate. Arguments for and against it are based on moral, practical,

religious, and emotional grounds. Advocates of the death penalty

argue that it deters crime, improves the community by making sure

that convicted criminals do not find their way out onto the streets to

offend again, and is cheaper than keeping convicted criminals in high

security prison for the rest of their natural lives. Some opponents of

the death penalty claim that "capital punishment cheapens human life

and puts government on the same low moral level as criminals who

have taken life." Since the reinstatement of the death penalty in 1976

there have been 1098 executions in the United States (as of

September 24, 2007).[3] There were 53 executions in 2006. 67% of

capital convictions are eventually overturned, mainly on procedural

grounds of incompetent legal counsel, police or prosecutors who

suppressed evidence and judges who gave jurors the wrong

instructions.[5][6] Seven percent of those whose sentences were

overturned between 1973 and 1995 have been acquitted. Ten percent

were retried and re-sentenced to death.

7) CAPITAL PUNISHMENT IN INDIA

Capital punishment is legal in India although rarely used. Between

1975 and 1991, about 40 people were executed, though there was a

period between 1995 and 2004 when there were no executions. Anti-

death penalty activists dispute those figures, claiming much higher

numbers on Death Row and actual executions.

In August 2004, a 41-year-old former security man, Dhananjoy

Chatterjee, was executed for raping and killing a 14-year-old schoolgirl

in Calcutta. This was the country's first execution since 1995[1] and the

first execution in West Bengal since 1993 when Kartik Sil and Sukumar

Burman were hanged.[2]

In 2005, about a dozen people were on the country's Death Row. Many

levels of appeals are available through different courts and India allows

state governors and the president to grant clemency.

The death penalty is to be used in the "rarest of rare" cases according

to the Supreme Court of India, although the meaning of this phrase is

not clearly defined. Capital punishment can be imposed for murder,

instigating a child's suicide, treason, acts of terrorism, or a second

conviction for drug trafficking.

The death penalty is usually carried out by hanging. After a 1983

challenge to this method, the Supreme Court ruled that hanging did

not involve torture, barbarity, humiliation or degradation.

It was reported in 2006 that the number of mercy petitions pending

with President Abdul Kalam from convicts on death row stands at 20,

including 12 were submitted when K. R. Narayanan was the president.

In May 2004, Kalam referred several of these petitions to the home

ministry for a possible review. The legal department of the ministry

reiterated the advice given to him by the previous government that

those cases did not deserve the president’s mercy

A major controversy exists as to whether or not to execute Mohammad

Afzal, a Kashmiri militant who attacked the Indian parliament building.

8) INTERNATIONAL USE OF DEATH PENALTY:-

For millennia, the death penalty has been used around the world as a

means of preventing and punishing crime. Some anthropologists attest

to finding prehistoric cave drawings which depict executions. Legal

references to capital punishment can be traced back to 1750 B.C. with

the Code of Hammurabi. Both the Old and New Testaments of the Bible

are replete with references to the use of death as the penalty for

various crimes. Perhaps one of the most notorious executions by a

state of a perceived criminal was the crucifixion of Jesus Christ.

Subhash Gupta, Deputy Secretary of the Indian Red Cross Society,

speculated that "here is practically no country in the world where the

death penalty has never existed."

Even though the arguable historical trend has been towards the

abolition of capital punishment, ninety-three nations and territories still

use it as a punishment for ordinary crimes with some degree of

regularity. Although the methods of execution, the crimes subject to

the punishment, and the rationales supporting its use differ

substantially, the governments, and perhaps even the citizens, of each

of these nations have concluded that the death penalty is a legitimate

method of criminal punishment. Despite the many differences, one

common factor is that most executions performed by the state, under

the designation of capital punishment, are not carried out in secret In

fact, executions often are announced in advance, reported by the

press after they have occurred, and in many cases, witnessed. Fifteen

countries have abolished the use of the death penalty for ordinary

crimes, yet retain it for exceptional crimes, such as crimes under

military law or crimes committed under exceptional circumstances

such as during wartime Antonio Marchesi noted that many countries

reach total abolition in two stages, where the first stage is abolition for

ordinary crimes. On the side of total abolition, fifty-six countries have

abolished entirely the use of the death penalty for any crime by

repealing all laws that had authorized such punishment. An additional

thirty countries and territories are considered to be de facto

abolitionist since they have not executed anyone for over ten years,

although they still have laws providing for the death penalty for

ordinary crimes. Although most of the latter groups of countries have

not executed anyone in the last twenty years, they should not yet be

viewed collectively as truly abolitionist in spirit. So long as the death

penalty is still technically legal, the governments may attempt to

activate it.

For example, in late 1993 the Philippine Congress passed legislation

reinstating the death penalty for thirteen heinous crimes. While there

had not been an execution in the Philippines since 1976, death

sentences were still imposed until late 1986. In 1986, the Constitution

of the Philippines was redrafted and the death penalty was abolished

for all crimes except those which were considered to be heinous. In

April 1987, President Corazon Aquino announced that she would

commute all of the existing death sentences to life imprisonment. But

after this notable trend towards abolition, the Philippines is expected to

resume executions at any time. This case study illustrates that one

must be careful not to generalize about de facto abolitionist countries

and must consider the particular history of both the legality and the

application of the death penalty in each country when assessing the

status of capital punishment in that country.

Many countries have limited application of the death penalty to only

those convicted of murder. According to Amnesty International,

twenty-five of the sixty-three nations known to have executed

criminals from the middle of 1985 to the middle of 1988 executed only

convicted murderers. The United States falls into this category.

However, a majority of the retentionist nations continue to execute

people for offenses not resulting in the loss of life or even involving

violence. For example, Amnesty International reports that during the

last decade prisoners have been executed for

adultery (Iran, Saudi Arabia), prostitution (Iran), running a brothel and

showing pornographic films (China), taking bribes (USSR),

embezzlement (China, Ghana, Somalia) . . . economic corruption

(Iraq) . . . kidnapping (China, Malaysia), rape (China, Egypt, South

Africa, Syria, Thailand, Tunisia, United Arab Emirates), robbery or

armed robbery (China, Ghana, Iran, Kenya, Republic of Korea, Nigeria,

Saudi Arabia, Syria, Taiwan, Tunisia, Uganda, United Arab Emirates,

Zaire, Zambia) and drug-trafficking (China, Iran, Malaysia, Saudi

Arabia, Singapore, Syria, Thailand). While this data may surprise most

Americans, recent American debate over the death penalty has raised

questions of whether the death penalty should be extended to crimes

other than murder. International experience with the use of capital

punishment for other crimes can serve as a source of information for

the justification and effect of applying the death penalty to crimes

other than murder.

9) IS CAPITAL PUNISHMENT NECESSARY?-

Perhaps the most common defenses of capital punishment are on

utilitarian grounds. For utilitarians, punishment in general is justified

only insofar as it creates a greater balance of happiness vs.

unhappiness. From the utilitarian perspective, then, capital punishment

is justified if it (1) prevents the criminal from repeating his crime; or (2)

deters crime by discouraging would-be offenders. For, both of these

contribute to a greater balance of happiness in society. There are

several immediate problems with this line of reasoning. First, the

burden of proof is on the defender of capital punishment to show that

the same effects could not be accomplished with less severe

punishment, such as life imprisonment. This is especially pertinent

since the goal of utilitarianism is to reduce as much unhappiness as

possible and this entails imposing the least severe of two possible

punishments when everything else is equal. Italian political theorist

Cesare Beccaria (1738-1794) argues this point in On Crimes and

Punishment (1764), one of the first systematic critiques of capital

punishment from the utilitarian point of view. According to Beccaria,

capital punishment is not necessary to deter, and long term

imprisonment is a more powerful deterrent since execution is

transient.

The retributive notion of punishment in general is that (a) as a

foundational matter of justice, criminals deserve punishment, and (b)

punishment should be equal to the harm done. In determining what

counts as "punishment equal to harm," theorists further distinguish

between two types of retributive punishment. First, lex talionis

retribution involves punishment in kind and is commonly expressed in

the expression "an eye for an eye." Second, lex salica retribution

involves punishment through compensation, and the harm inflicted can

be repaired by payment or atonement. Historically, capital punishment

is most often associated lex talionis retribution. One of the earliest

written statements of capital punishment from the lex talionis or "eye

for an eye" perspective is from the 18th century BCE Babylonian Law

of Hammurabi:

Immanual Kant offered an alternative retributive justification of capital

punishment which is not rooted in vengeance. Instead, for Kant, capital

punishment is based on the idea that every person is a valuable and

worthy of respect because of their ability to make rational and free

choices. The murder, too, is worthy of respect; we, thus, show him

respect by treating him the same way he declares that people are to

be treated. Accordingly, we execute the murderer. A key problem with

Kant's justification of capital punishment is that it tells us what to do

with only ideally rational killers, although many killers are not rational.

Some standard arguments for capital punishment do not fall neatly

into either the retributive or utilitarian categories. For example, John

Locke's famous defense of capital punishment has both a retributive

and utilitarian component. Locke argued that a person forfeits his

rights when committing even minor crimes. Once rights are forfeited,

Locke justifies punishment for two reasons: (1) from the retributive

side, criminals deserve punishment, and, (2) from the utilitarian side,

punishment is needed to protect our society by deterring crime

through example. Thus, society may punish the criminal any way it

deems necessary so to set an example for other would-be criminals.

This includes taking away his life. Under the influence of Locke's theory

of the forfeiture of rights, English law had some 200 capital offenses by

1800. Critics of Locke argue that there are alternatives to his

assumption that criminals forfeit their right to life. It may be, instead,

that criminals forfeit other rights (such as freedom to travel), yet the

right to life is simply not forfeitable. Beccaria, for example, argued that

people did not sacrifice their rights to life when entering into the social

contract.

Another defense of capital punishment is based on an analogy that

capital punishment is to the political body just as self-defense is to the

individual. The reasoning is that, in dangerous circumstances, the

individual is justified in protecting himself by self-defense with deadly

force. Since society (or the political body) is like a large person,

society, too, is justified in using deadly force through capital

punishment. However, for this analogy to be a successful, it must

parallel the accepted principle that self-defense with deadly force is

justified only when there is no alternative open to us (such as fleeing).

This means we must see whether any alternative to capital punishment

is open (such as long term imprisonment). Further, the self-defense

with deadly force is grounded in the moral right of self-preservation.

However, only people, properly speaking, have moral rights; abstract

entities and institutions such as governing bodies do not.

Consequently, the analogy between capital punishment and self-

defense fails it a basic level.

J. J. Maclean of Canada defends the right of the state to award capital

punishment for murder. According to him, if the state has the right and

duty to defend the community against outside aggression such as in

time of war and within the country, for instance, I case of treason etc.

and that to the extent of taking the life of the aggressors and guilty

parties, if the citizen wants to protect his own life by killing whoever

attacks without any reason, the state can do the same when a criminal

attacks and endangers the life of the community by deciding to

eliminate summarily another human being. Capital punishment must

be retained to prove the sanctity of that most precious thing which is

the gift of life. If embodies the revulsion and horror that we feel for the

greatest of crimes. As a deterrent, death penalty is playing its part for

which there is no substitute. `

10) CONCLUSION AND OPINION:-

Capital punishment is therefore necessary but there are opponents

who think that it is barbaric. Hugo Adam Bedau, a professor of

philosophy at Tufts University, says this about capital punishment “the

death penalty is uncivilized in theory and has no place in a civilized

society." This is true but we do not live in a civilized society if we did

there would be no crime thus the death penalty would be out of date.

But in this uncivilized society that we live in I say let the punishment fit

the crime, an eye for an eye. Bedau also said that “Criminals no doubt

deserve to be punished, and punished with severity appropriate to

their culpability and the harm they have caused to the innocent." This I

strongly agree with and feel that Bedau is beginning to see the need

for capital punishment.

In conclusion, murder is a crime that involves taking the life of another

human, and that act needs to be punished justly--not with a shortened

sentence in an overly luxurious prison, but in an effective manner that

gives society the message that it is living in a just world. Moreover, the

death penalty is not racially biased; it's just that more minorities are

being executed than Caucasians, because more minorities are

committing more crimes. If capital punishment is taken away, we will

not have an effective justice system and crimes against innocent

citizens will continue. This is why capital punishment is necessary and

needed in America.

It is really desirable in the context of the Indian

society. Because the contagion of lawlessness would

undermine social order and lay it in ruins. Protection of

society and stamping out the criminal productivity must be

the object of law which must be achieved by imposing

appropriate sentence. Undue sympathy to impose

inadequate sentence would do more harm to the justice

system to undermine the public confidence in the efficacy of

the law, and society could not long endure under such

serious threats. It is, therefore, the duty of every court to

award proper sentence having regard to the nature of the

offence and the manner in which it was executed or

committed. It does not mean that death penalty is the need

of each and every crime. But before imposing such harse

punishment precaution should be taken so as to avoid the

miscarriage of justice.

In today’s world terrorism as well as the growing

activities of the anti-social element requires such

punishment. In Indian society the increasing rate of terrorism

is a serious threat to the ‘Sovereignty and Integrity of India’,

so from this angle also the provision of death penalty should

not be eliminated from our law books. The annals of the

Indian history show that certain Eras were called the Golden

Age because people enjoyed a secure and peaceful life, as

punishment was very severe even for small crime in those

days.

According to the abolitionist the most of the person

condemned to the death penalty are the poorest of the poor

and those who cannot afford the good lawyer. In my opinion

proper attention should be given in this direction and good

lawyers should be given to those needy people who are no

capable of having this opportunity.

If we see the death penalty from human rights

perspective, and say that it should not be given to an

accused. Don’t you think that we are not justified in

considering the right of victim? Because he is also a human

being having the right to life. In such situation we are

punishing a person who has taken an innocent person’s life,

but what about the victim who did not commit any crime and

lost his life. What about his family?

So in my opinion if we talk about human right

definitely we should not forget the right of the victim also. I

would like to conclude my paper saying that the time is not

yet ripen to abolish the death sentence. It should be there

for the most serious and heinous crime.

BIBLIOGRAPHY

TEXT BOOKS

1. The Death Penalty – A World Wide Perspective Roger Hood

2. Criminal Law and Criminology K.D. Gaur

3. Criminal Justice BY: - Dr. K. I. Vibhute First Edition, 2004, EasternBook Company.

4. Criminology and Penology Punishment BY: - N. V. Paranjape 12th

Edition, Central law publications.

5. Criminology By: - Ram Ahuja Reprinted 2005 , Rawat publication ,jaipur New Delhi

6. V. D. Mahajan Jurispudence and legal theory Fifth Edition Eastern Company

JOURNALS

5. Journal- Stanford Law Review Dec.2005 – Ethics and Empirics of CapitalPunishment

6. International Review of Law and Economics, March 1993- the Demand

8. Journal of the Indian Legal thoughts ,Volume 2 2004 , School of Indian Legal thought , Mahatma Gandhi University , Kottayam.

WEBLIOGRAPHY

1. http://www.answers.com/topic/punishment?cat=biz-finsds4

2. http://en.wikipedia.org/wiki/Capital_punishment

CONTENTS

1) ADMINISTRATION OF JUISTICE

2) PURPOSE OF CRIMINAL JUSTICE SYSTEM

3) MEANING AND DEFINITION OF PUNISHMENT

4) CAPITAL PUNISHMENT

5) HISTORY OF CAPITAL PUNISHMENT

6) CAPITAL PUNISHMENT IN UNITED STATES

7) CAPITAL PUNISHMENT IN INDIA

8) INTERNATIONAL USE OF DEATH PENALTY

9) IS CAPITAL PUNISHMENT NECESSARY?

10) CONCLUSION AND OPINION

SYMBIOSIS SOCIETY’S LAW SCHOOL,

PUNE

SUBJECT: - CRIMINOLOGY AND PENOLOGY.

SEMINAR TOPIC:- IS CAPITAL PUNISHMENT

NECESSARY?

GUIDED BY: - PROF. CHOPRA SIR

PRESENTED BY

KALE DILIPKUMAR

LL.M. IIIrd SEMISTER.

ROLL NO. 42.