Heemansshi

BA LLB (3^rd Year)

Panjab University Swami Sarvanand Giri Regional Campus, Hoshiarpur.

Introduction

In this world, crime and criminals exist. This exists in countries like: the United States of America and India also. Punishments are given to save the people of the country from crime and criminals. These punishments are mainly penal. Penal punishments are sentenced for two objectives: to make the offender suffer and by the punishment of the offender, to deter society to restrain the commitment of a crime. In both countries, the punishments are given based on the offences. Some examples of these punishments are: imprisonment, death penalty, fine and other forms of capital punishment. The severity of punishments has always been a major concern in India. The word ‘capital punishment’ has been derived from the word ‘capitalism’ which means ‘regarding the head’. 

Capital punishment is defined as the method through which the person is executed as per the offence committed by him.  Capital punishment is to be considered equal to the death penalty with consideration of the commission of a crime and the applicability of the law. As per the Indian Constitution President and Governer have the power to commutate, or remit the death sentence as per the jurisdiction. The death sentence is given in the rarest of the rarest cases in India. It is awarded under the conditions of heinous crimes such as Rape, murder and many other heinous crimes.

History of capital punishment India and USA

• India
• Ancient and Medieval History

1. In Hindu texts like: Manusmriti, the punishment of the death sentence is written for offences such as adultery, violence and defamation of Brahmins and many other such heinous offences. 
2. During the reign of Mauryas, the sentence of death punishment was very common, but it was given in different modes such as: burning alive, throwing the individual under the foot of an elephant and many other methods.
3. After conquering the Indian territory, Mughal rulers continued the execution of the same form of punishment. 

• British Colonial Rule

1. During the reign of the Britishers, the death penalty was codified under the Indian Penal Code, 1860. 
2. Even Public hangings were popular during the rule of Britishers. The most famous example of public hanging is Bhagat Singh and Rajguru in 1931 which led to the mass protest by the public.

• Post – Independence

1. After independence also, the death penalty continued to be executed.
2. The Code of Criminal Procedure (CrPC) restrained the sentencing of death punishment to the rarest of rarest cases. 
3. New laws related to the penal punishments for the offences related to terrorism and drug – trafficking in the 1980s.
4. In 2023, new criminal laws were introduced by the Government and replaced the old criminal laws. Bhartiya Nyaya Sanhita, 2023 was introduced instead of the Indian Penal Code, 1860; Bhartiya Nagarik Suraksha Sanhita, 2023 was introduced instead of the Code of Criminal Procedure, 1973; Bhartiya Sakshya Adhiniyam,2023 was introduced instead of Indian Evidence Act, 1872. 
5. These new criminal laws introduced community services as a form of reformative punishment for minor offences. It is done to accomplish the objective of justice which is to end the crime but not the criminal.

• United States of America
• Colonial Period

1. In 1608, Captain George Kendall in the Virginia Colony was the first recorded execution in the period of the American Colony.
2. During the phase of colonial rule, the death penalty was sentenced for heinous offences such as murder, rape, offences against religion or state.
3. The punishment of public hangings was common during that phase. Even there used to be the construction of their gallons.

• Post – Independence

1. Each state determined its capital punishment laws and methods of execution after the independence.
2. In the 19^th century, there was a transition in the form of execution of punishments such as the adoption of the electric chair, gas chamber, and lethal injection.
3. c. In 1976, the Supreme Court restored capital punishment in Gregg v. Georgia, which led to the development of some new guidelines for a more just application.
4. In 2023, the death penalty was abolished in 27 states, while the same was retained in 23 states.

Theories of Punishment

1. Deterrent Theory of Punishment

Deterrence means “discouraging”. The deterrent theory of punishment means to discourage the wrongdoer from committing the offence in future by sentencing the penalty at a high level. As per this theory, fear is created in the minds of criminals. The critics of the theory of deterrence of punishment believe that it is difficult to balance social interest and inculcate the threat among people to restrain them from committing crimes.

2. Retributive Theory of Punishment

This theory has been prevalent in India since ancient history. This theory has been derived from the attitude of ‘an eye for an eye’. It applies the principle of being reasonable. It is the most effective form of punishment for society to accomplish the principle of justice. It acts as a role model for the offenders to restrain them from committing the crime. This theory implies the harsh punishment of the individual in exchange for the commission of heinous crimes. The objective of this theory is to disappear the feeling of revenge in the minds of the victims and not only the victims but all the individuals who were affected by the offence committed by the wrongdoer.  

3. Preventive Theory of Punishment

As per this theory, the main objective of the punishment that is given to the wrongdoer should be to end the crime and not the criminal. Under this theory, the criminal is sent to jail to remove the threat caused by the criminal in society and restrain him from committing the offence in the future. A criminal can be restricted from committing the same or any other serious offence by imprisonment without remission. However, there have been several criticisms of this theory. The main criticism of this theory is that this theory does not prevent the commission of offence in the future. It is also to be contended by the critics that sending the wrongdoer sometimes leads to a worse impact upon him instead of reformation. It is so because in jails there are more big criminals which can make that person commit a heinous crime. Thus, the main objective of punishment is ignored.

4. Reformative Theory of Punishment

Under the reformative theory of punishment, the entire economic and social backgrounds are analyzed by legal researchers to know the reason for the commission of heinous crimes by the wrongdoer. The main criticism of this theory is that if the criminals are sent to jail for the motive of reformation then there will be no more fear of imprisonment in the minds of the offenders.

Methods of Execution

• India

1. In India, the death sentence is given only in the rarest of the rarest cases. Some of these offences are rape, murder, waging war against the country and many other heinous offences.
2. Burning alive in fire, and throwing the criminal under the foot of an elephant are some forms of capital punishment in the ancient period.
3. At present, the death sentence is executed in the form of hanging and shooting. Mainly, hanging is prevalent in India. 
4. The reformative form of punishment also have been introduced in India through new criminal laws. Community services have also been introduced for minor offences to retain the objective of giving punishment, that is, to end the crime but not the criminal.

• United States

1. The modes of execution vary from state to state.
2. Capital punishment is prevalent in 27 states, whereas it is not prevalent in 23 states.
3. Lethal injection is the most famous method of execution of the death sentence, whereas there are some other methods also that are gas chambers, fire squads etc.
4. In the United States of America, laws can vary from state to state, but the death sentence is given mainly under brutal murder.  

Comparative Analysis

• Similarities:

Both the countries, India and USA are democratic. Thus, there are some similarities between these countries in the matter of legal justice systems. Some of them are enlisted as follows:

1. In both countries, retributive forms of punishment have been prevalent since ancient times.
2. The capital punishment has been prevalent in both countries from the beginning in itself.
3. It is evident that, in both countries, the death sentence is given only in the case of heinous offences committed by the wrongdoer.
4. In both countries, there is a debate over capital punishment that if still, death penalty should still prevail in these countries or not. 
5. In both countries, there is a Supreme Court that has given many judicial precedents regarding the execution of punishments.

• Differences

There is a difference in the federation and historical background of the legal justice system in both countries. Thus, there are some differences in the mode of punishment in the legal justice system. Some of these differences are mentioned as follows:

1. In India, the death penalty is given in the form of either a shooting or death sentence. Whereas, in the United States of America, the death penalty is given in the form of lethal injection, gas chambers, fire squads etc.
2. In India, the death sentence is mainly prevalent in the form of hanging. In contra, the death sentence is mainly prevalent in the form of lethal injection.
3. There is a difference in federation between both countries. In India, there is a holding together federation whereas in the United States of America, there is a coming together federation. Due to these reasons, the mode of execution of punishment is one in India. Whereas, in the United States, some countries allow death punishment and some countries do not allow death punishment.
4. The offences in which death punishment is given vary in these countries.
5. In India, community services have been brought as a form of reformative punishment. Whereas, in a country like the USA, there is still no existence of reformative punishments.
6. Since the Independence, new criminal laws have been introduced through which new modes of punishments have been brought. Whereas no such changes have been introduced in the United States of America.

Implications of Differences

Where there are several similarities between both countries related to punishments, there are differences too as mentioned above. The reasons for these differences are: differences in federations, historical background, and social perspective. Due to different historical backgrounds, there are differences in the mode of execution of capital punishment. Differences in the type of federation are one of the main reasons for the implementation of the death penalty in these countries. There is a huge difference in the social perspective of both countries. It is evident from the introduction of reformative punishments in India. Many amendments have been brought in the punishments by bringing new criminal laws but there have not been any such amendments in the United States of America. There are many suggestions regarding the provisions of punishments. In the country like: the USA, new provisions of punishments should be introduced such as punishment of community service as a form of reformative punishment for minor offences. The USA should focus on the actual objective of the punishment that is given to the criminal, which is, to end the crime but not the criminal. 

Conclusion

The system of punishments comes into existence only because of the existence of the crime. It is so to maintain the social order and discourage the offences in the future in society. Though there are complexities in the criminal justice system of both India and the USA, still there are differences in the approaches to punishment because of differences in historical, constitutional and cultural background. 

There has been a great transformation in the approach of punishments in India with its ancient legal traditions and a more centralised federal structure. There has been more emphasis on retributive punishments for heinous crimes in the law but at the same time, some initiatives regarding the reformative punishments have been taken in the form of new criminal laws. The introduction of community services as a punishment for minor offences has led to the focus on a reformative approach towards punishment. It aims not only to punish the wrongdoer but also to extract the actual reason for the commission of the crime by the criminal. The evolution of the approach to punishment corresponds to a changing perspective of justice and identifies the potential for rehabilitation and reinstatement of criminals into society. 

In contrast, there is decentralization among the states. All the states are independent and the approach to the punishments varies from state to state. Some states have abolished the death penalty while there are some states in which the death penalty still prevails. Since, the ancient period there has been reliance on retributive punishments and the theory of deterrence and not that much on reformative. One of the clearest pieces of evidence can be seen using lethal injections, fire squads and many other traditional methods.

There are many differences in both countries’ methods of executing capital punishment. India has more strict guidelines and judicial interference than the USA in the context of sentencing punishments. This can be seen from the ‘rarest of the rarest case’ condition while sentencing capital punishment. In the USA, capital punishments vary from state to state and have different forms or methods.

The differences in the evolution of punishments are to be tracked by the footprints of historical background. India’s methods of punishment are deeply impacted by the ancient period. Colonial rule influences the USA’s sentencing methods, punishments, and variations in the execution of justice.

The implications of differences between these countries are significant. India’s adoption of a reformative theory of punishment has led to the feeling of reformation in the USA. India has now adopted the system of knowing the root cause of the commission of the offence by the offender which has led to the break in the law of recidivism and this shift has been followed by a just and fair society.

In conclusion, both countries, India and the USA have tackled the scenario of crimes and punishment. They have different approaches to deal with that scenario. But India has gradually shifted to reformative punishment which is absolutely different from the United States of America. Hereby, it is to be concluded that both countries should be more inclined towards the reformative theory of punishment to create a more just and fair society.

Endnotes

1. Jayraj Mahadev Kakade, Comparative Study on Capital Punishment India and USA, 3 IJRPR 7643, 7643 – 7646 (2024), https://ijrpr.com/uploads/V5ISSUE3/IJRPR24424.pdf.
2. Bare Act of Bhartiya Nyaya Sanhita,2023.
3. Bare Act of Bhartiya Nagarik Suraksha Sanhita,2023.