Comparative Law Paper on India and China’s Stance on Capital Punishment
Introduction:
This opinion piece presents a comparative between India and China, and after exploring the socio economic and cultural similarities and differences between the two nations, will venture to juxtapose the Indian and Chinese laws on capital punishment. The goal of this piece, like any other literature based on comparative law review, is to draw explicit connections between the similarities of the laws in both the countries and examine the differences and the social implications of those as well. This section particularly deals with the analysis of the distinctive characteristics of the individual legal systems and each jurisdictions’ approach to capital punishment.
Globally, in 2021, Amnesty International records 2,052 deaths by capital punishment and 18 by state executions. Even though there currently exists a drive to abolish capital punishment globally, “only 104 countries have completely abolished it while 29 have abolished it to de-facto”. In today’s world, there is a heated discussion prevalent on the nature of capital punishment; inspired by the exploration into the nature of punishments related to crimes; the discrepancy between deterrence and rehabilitation gives rise to multiple human rights debates on international levels. This thereby incites various jurisdictions to amend their legal policies in order to fit the global moral standard at any given point in time. Keeping India as a control group, China was chosen as a comparative because, according to multiple surveys, not only has China historically always had the highest number of state-sanctioned death penalties, even under the recent global scrutiny regarding their lack of human rights protection and activism, the nation still remains as the one with the highest rates of capital punishment.
Legal Context:
In India, capital punishment is a recourse reserved for the ‘rarest of the rare’ case and reserved for ‘special reasons’, although the exact criteria that a case would have to constitute to be considered in these categories are unclear and have not been made explicit by the government. The trials that plead for death penalty are decided on a case-by-case basis, and hence are based on precedent and additionally influenced by the moral standing of that time. Under the banner of ‘retributive justice’, the stance supporting capital punishment essentially promotes the idea of a justice system based on deterrence rather than reformation. In India, awarding the death penalty as punishment has been mostly reduced to the terms set out by the Doctrine of the Rarest of the Rare, which, in a given case, depends on the severity and intensity of the crime committed. While provisions for punishments are mostly detailed in Chapter III, Section 53 of the Indian Penal Code (IPC), the majority of the Indian criminal law is codified under the Code of Criminal Procedure (CRPC) as well at the IPC, which outline ultra-vires circumstances with punishments that result in death penalty. However, there are no set criteria or guidelines for when a death penalty may or may not be the suitable means to provide the claimant or the aggrieved with justice; it is all decided on a case-to-case basis, and the degree of heinousness, while not being explicitly subject to the degree of a reasonable man’s standard, does depend on the judge’s discretion and the social moral standard.
In China, Article 48 of the Criminal Code of the People’s Republic of China (PRC) requires that “the death penalty only be applied to criminal elements who commit the most heinous crimes.” There are other considerations to this rule as well, which are further detailed in the succeeding Articles 49 to 51. However, similar to the IPC, PRC’s criminal law also does not explicitly define the standards for what can be considered as a “heinous crime”, and opts instead to describe the various types of crimes that can be considered severe enough to the extent of resulting in death penalty. However, an element that is exclusive to the nature of the executive in China is that the number of deaths reported by the Amnesty International survey are, more often than not, unreliable. Because of China’s taciturn approach to revealing state secrets on a global platform, the number quoted by Amnesty International is only an estimate–that too one which is a lower estimate–and the actual number of state-sanctioned killings, while being speculative in nature, are much higher.
Essentially, these actions call into question the nature of such punishments and the type of social justice they enforce. In each country, it can be seen that the death penalties, and the ambiguity in the terms that they operate, are generally used to establish and exert power rather than achieve social justice.
Non-Legal Comparability:
Currently, India and China are among the top five economies of the world–with their total Gross Domestic Product (GDP) at $3.17 trillion USD and $17.37 trillion USD respectively, and are projected to be the fastest-growing economies globally by the World Bank and the International Monetary Fund (IMF). These countries will be a unique case study in the implementation of any form of governance and their legislation because the nature of challenges posed would be extremely distinctive, and catered only to their circumstances. There are very few nations globally that are in a similar stage of development, face the same issues with population control and managing population densities, are in there same political section, which still have completely sovereignty and autonomy to govern their countries as they see fit. Both these countries have populations that pass 1 billion citizens, and are located in the Global East, away from the direct influence of the Western hegemonies like the US and the UK. The point of difference between the two nations are their distinctly polar economic and political routes towards growth.
Although both countries’ economic prowess was notable and highly celebrated in the histories, no consolidated form of economy emerged until India had to rebuild the nation after British colonisation, and China had to re-evaluate their socio-economic model because of the famine and the subsequent farmers’ riots. These societies, which were considered to be the poorest countries in the 20th century, then opened up their economy to allow for international trade and, with their separate economic and governance methods, were able to become competitive markets. India is a mixed economy, which, by combining the ideals of capitalism and socialism, in which private enterprises work for profit maximisation and the government works towards the welfare of the state”. China as a socialist market economy, with the coexistence of state owned and privatised businesses. The development of these markets happened in a similar timeline and, with an overlapping requirement for an economic change, the system in which that impetus was recognised and applied in society was quite different. In particular, the current economic systems of these countries can be seen as a result of the “two hundred years of colonial rule in India and on the extreme heterogeneity of its population in contrast to the Maoist heritage and the relative ethnic, linguistic and religious homogeneity of China”.
To explore the application of this impetus on the society, one would have to examine the history of governance in both these countries. Post independence, India was in a position where the easiest method to homogenise the diverse populous in support of a singular cause was with the application of democracy. Thus, inspired by the English governance, India too created a parliamentary democracy and propagated the utopian notion that such a form of governance will be effective in making everyone’s voices heard in the judicial system—at attempt at preventing the suppression of the weaker and poorer factions of society. China, on the other hand, had no such pre-existing social order they needed to counter. However, after the famine of 1959 and the succeeding social unrest caused by the farmers’ protests, there needed to be a singular method under which the society could be united. Under Mao’s communist regime, it was easy to unify the socio-economic goals of the rich, as well as the poor, and motivate them to work in a consolidated manner for the betterment of the state as a whole, with the idea of a unified reward as well. Under this regime, “public order improved and many saw a stronger China taking form. The march to socialism seemed to go along reasonably well with the dictates of industrial development”. Furthermore, this break from uniformity in the Indian society created a government that catered to the needs of the masses, rather than one that acted only in the benefit of the state—like China—and ensured the execution of political strategies that were scattered in its international relations and promoted a protective economy. Through this, “India voluntarily opted out of the world mass market in traditional labour-intensive goods, the conquest of which propelled China’s stratospheric boom of the nineties”.
Upon further evaluation, it can be see that many of the conflicts that arise in both these nations are a by-product of the challenges of resource management. Due to their high populations, and a high population density as well (specifically in the case of India), there are challenges to the economy and governance that no other country has the scope to understand and solve. While the only distinction between the countries are in terms of the diversity of religion (seen in this paper as a method that breaks homogeneity and creates conflict in society), and their modes of governance, with one being a parliamentary democracy and the other, a one-party communist dictatorship. What this essentially shows is that the role of the law in these two jurisdictions would be the same (population management while resources are stressed) but, because of the difference in the nature of the governments, and the de-facto emotion that they create in the civilians, the law will be interpreted in two very different ways in these countries.
Legal Comparability:
This section will be an analysis and comparison of the legal systems in India and China. Conducting a review on the way that the law functions in these countries will aid in gaining a greater insight into the process behind reaching a verdict on the conviction or acquittal of a death penalty case. This analysis will be done based on the following factors: Fundamental Concepts of each country’s constitution, Rule of Law, and the Indian and Chinese Legislative systems.
(I) Fundamental Aspects of their Constitutions:
The Indian Constitution was adopted on 26th November 1949, and describes the fundamental rights and duties of each citizen. This essentially makes the Constitution a contract between the state and the citizen—each citizen is awarded rights and protections in exchange for certain assurances in terms of the
citizen’s behaviour and duty towards the state. “The founders of the constitution provided a tripartite system (legislature, executive and judiciary) of governance with a fairly strict separation of powers. This
incorporated a detailed bill of fundamental rights with an independent judiciary armed with the power of
judicial review.”
The constitution of the People’s Republic of China was adopted on 4th December 1982, and is has a ‘down-up’ perspective, with the goal of controlling the individual’s relationship with the state. In an attempt to control the citizens’ behaviour, the Constitution “explicitly forbids secession and creates a unitary multi national state.” Post the first amendment, the Constitution further emphasised the triviality of the class struggle, choosing instead to stress on the importance of on development and modernisation, and “strengthen the state’s role in directing the private economy, and calls for implementing the rule of law and accountable governance.”
(II) Rule of Law
For India, the laws laid down by the Constitution are sacrosanct; they arm the judiciary with the power of judicial review, which ensures that no branch in the tripartite separation of the state are above the law—including the lawmakers. Furthermore, the enforceability of the people’s fundamental rights are ensured by the presence of writ remedies, which citizens can apply by directly approaching the Supreme Court of India. Furthermore, in order to protect the sanctity of the rights awarded by the Constitution, there are legal measures that safeguard the constitution from the “constituent power of the Parliament to amend the constitution.”
On the other hand, China’s constitution is also designed in a way to ensure that all Chinese organisations, including the Communist Party of China, are subordinate to the implemented legislation. However, based on secondary oberservation and analysis, and the fact that the Chinese citizens have no legal recourse to protect and enforce their constitutional rights, it can be said that the Chinese constitution is malleable to the needs of the CPC. This comparison provides the singular stark contrast that shows how the Chinese citizens, while being given rights to protect themselves, are unable to speak out or seek legal remedies if they are not followed correctly. However, the bare factor of India having a system in place for legal recourse is not a reassurance for an established judicial system whose verdicts are always justiciable.
(III) Legislative Systems
In the legal system established for India, the President is the head of the state—awarded the same position and power over the legal system as a Constitutional Head, like the one under the Crown in the British Parliamentary system. “The bicameral Parliamentary system consists of the Rajya Sabha (Upper House) and the Lok Sabha (Lower House or House of the people). The Council of Ministers is responsible to the Lok Sabha. The President exercises ordinance-making powers in specified situations.” Apart from these mechanisms, there also exist certain independent regulatory bodies that have parallel legislation of their own, but no specific individual sovereignty, and are therefore answerable to the laws imposed by the national constitution.
In China, the legislation performs a much more “administrative” function than “legislative”, an assertion based on the observation that China’s legislative power is divided into multiple bodies of the Chinese central government, including the National Peoples Congress, State Council and the ministries under the State Council. Furthermore, the legislation is often inconsistent with each other, as the various branches have evolved separately, and all have their sovereign internal policy directives. Furthermore, the prominent (sole) body of governance, the National People’s Congress, has an immense sway in the legal system. “Although the NPC Standing Committee is more limited in the types of laws it can draft, because it controls the legislative agenda for a longer period each year, it has produced a larger body of law than the NPC itself… and have the formal power to enforce the Constitution and invalidate conflicting laws and regulations”
Analysis:
To compare the way death penalties are dealt in the two countries, one would have to examine their criminal laws that sanction capital punishment (as would be prescribed in their respective criminal codes), as well as the constitutional laws that call for this grave punishment. To create a just comparison, the rules regarding the pardoning of a death sentence, or the reduction or acquittal of the defendant’s charges, would also have to be analysed thoroughly. This would aid in creating a trend across both counties: showing the types of crimes that citizens are usually convicted for, the motives behind this conviction, and whether or not the system is being used to reiterate state power in a society.
As per Section 53 of the IPC, there are five types of punishments that may be provided to a convict, and death penalty is the harshest, as it is generally reserved as a method of justice against the most heinous crimes. Under the IPC, various kinds of offences are punishable by death penalty. For example, waging or attempting to wage war or abetting waging of war against the Government of India (under Section 121), murder (under Section 302), abetment of suicide of a minor, or insane, or an intoxicated person (under Section 305), rape and injury that results in death or the permanent vegetative state of the victim (Under Section 376A) and certain repeat offences in the context of rape (under Section 376E). Other laws that provide for a death penalty are as follows:
A. The Indian Air Force Act, 1950
B. The Army Act, 1950
C. The Navy Act, 1950
D. The National Security Guards Act, 1986
E. Indo-Tibetan Border Police Act, 1992
F. Commission of Sati Prevention Act, 1987
G. The Narcotic Drugs and Psychotropic Substances Act, 1985
H. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 89
Chapter III of the IPC concerns itself with the various punishments that may be levied against crimes. While Section fifty-three describes the several penalties that may be commuted, Section fifty-four is specifically about the commutation of death sentence, saying “In every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code”. Section 55A further attempts to clarify this legislation by stating the definition for “appropriate government”, and says “Government’. In sections fifty four and fifty-five the expression “appropriate Government” means: “(a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced”. The commutation of a death penalty, on a literal note, goes against the right to life and liberty as promised in Article 21 of the Indian Constitution. However, based on the case-law precedent as put forth by Bachan Singh v the State of Punjab, 1980, the Supreme Court held that owing to the constitutional validity of the laws present in the IPC, specifically Section 302 (the section that concerned the case), the death penalty awarded as punishment will not amount to murder. As further justification, the judges also established a “rarest of the rare” doctrine that laid a criteria for when justice should be retributive in nature and capital punishment should be commuted. Among these, the judgement contained a set of aggravating factors that would increase the chances of being awarded death penalty, which are:
A. Pre-planned murder
B. Calculated and cold-blooded murder
C. Helpless state of the victim
D. Horrendous details of the crime
E. Shocking nature of the crime
Along with these aggravating factors, the court also published a list of mitigating factors, that help the bench of judges to look upon the defendant more favourably and reduce their punishment from a death penalty. However, the conflict arises here; the presence of mitigating and aggravating factors both help create an illusion of a balance between the laws, when it reality, the grounds for measuring the criteria listed above are quite arbitrary and subjective in nature. Because the nature of such crimes are extremely distinct and difficult to predict, there cannot be any concrete terms that codify the exact nature of the crime for which death is a valid punishment.
The factors mentioned above allow for extreme variations in judge’s interpretation; as judges’ duty falls at the intersection of protecting the larger civil society while also punishing the criminal for the crime, they are often reluctant to give extremely harsh punishments. This instinct of the judges is one of the reasons why it is difficult to strike a balance between the deterrent and retributive nature that is attributed to this punishment. The lack of an absolute definition for the ‘aggravating circumstances’ puts the matter unto the opinion of the court of public opinion, which skews the ultimate legal judgement. Furthermore, because the standards of the factors can be extremely subjective, there is no set standard for when clemency should be awarded and when the sentence should be commuted; the entire process is extremely discretionary to the personal beliefs of the judge. This form of lack of objectivity creates an inequality in the law: risking the conviction of innocents and the acquittal of criminals.
Chapter III of the Chinese Criminal Code describes the punishments for the various crimes, in which Section 5 concerns itself with the circumstances under which the death penalty should be commuted. Section forty-eight presents the primary legislation for the commutation of a death sentence, and states that “The death penalty is only to be applied to criminal elements who commit the most heinous crimes. In the case of a criminal element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of execution may be announced at the same time the sentence of death is imposed. Except for judgments made by the Supreme People's Court according to law, all sentences of death shall be submitted to the Supreme People's Court for approval. Sentences of death with suspension of execution may be decided or approved by a high people's court”. The following articles in this section, forty-nine to fifty-one, describe the various procedural requirements that legitimise the conviction of a criminal under the death penalty. Some of the crimes that are eligible for death penalty are betrayal of the country (under article 102), armed rebellion and rioting (article 104), collaborating with the enemy and betrayal (article 108), spreading hazardous substances (under article 115), destruction of transportation facilities and electrical equipment (article 119), intentional homicide (under article 232) and refusal and false transmission of military order (under article 422). Most of the laws regarding death penalty in the Chinese Criminal Code are written in vague and generalised terms, with little to no attempt made at clarifying or defining the terms that were used in an article. Most laws are also for the protection of state power, and are created, keeping in mind that the citizens’ rights are secondary, and that maintaining the state’s right to exerting power is the primary concern of the law. As has been already established in the section of legal comparability, the maintenance of state power is priority to the Chinese legislation, and this is done by making the rights laid out in the Constitution subordinate to the requirements of the CPC. In the context of this ultimate motive, the vague generality with which the legislation for criminal cases for which capital punishment punishment has been awarded as a remedy are a logical tool to manipulate the legislation for private benefit. Furthermore, based on the Chinese government’s approach to their economy—the command and control approach that they’ve opted for decades to ensure positive economic development—shows how the state is not averse to taking whatever measures necessary to maintain a positive image of the state party in national and international forums (which also explains why the Chinese government would hide the actual number of state-sanctioned deaths).
Conclusion:
The exploration of the socio-legal systems of India and China shows how capital punishment in these countries is used as a method of maintaining state power and influence. By comparing the countries social, economic and historical statuses, it has been established that their legal systems are viable for comparison as these are two countries who have endured similar circumstances and have created and implemented legislation for state control in similar methods, and, furthermore, for similar motives. In a time where death penalty has been outlawed and renounced by most states across the globe, why do India and China still continue to implement them with such dedication? Based on the socio-economic
comparison of the countries, it can be fairly deduced that economic progress while keeping the stated in a united governance are both the countries’ primary prerogatives at this moment. To achieve this, while maintaining the control of the governments in power, capital punishment is one of the most effective methods—it objectively prevents state dissent and creates a united cause in the nation to promote a single minded economic development. However, the difference between the countries arises in the discretion with which this penalty has been awarded; India, in it’s attempt to maintain the ‘rarest of the rare doctrine’ only awards capital punishment in extremely severe cases (which coincidentally also garner the most public attention), and make it seem like a fair and just judicial process. China’s reputation for being indiscriminate with their punishments make it seem like a dictatorial government whose dedication to protecting their power comes above all. This not only creates a legal system where there is no scope for judicial review, or an unbiased legal proceeding, it oppresses the civil society at large and creates an undercurrent of fear and instability in society.
This article under Legal Eye is written by Inspire Law's Writer, Ishani Chatterjee.
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