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"A society which felt
neither anger nor indignation at outrageous conduct would hardly
enjoy an effective system of law" - Salmond.
The clemency petition filed by
convicted terrorist Mohammed Afzal Guru has obtained a large
amount of attention in the media. Mercy plea advocated by the
Jammu and Kashmir Chief Minister and the coalition partner of his
government, not to talk of the violent public protests in the
Kashmir valley has polarized the whole country into Kasmiris on
one side and rest of India on the other side.
All this has given rise to a debate over issues
1. Whether death penalty be abolished?
2. Whether Afzal Guru’s case satisfies the relevant legal tests
incorporated under law and laid down in various judicial
decisions?
3. Whether the provision of death penalty as an alternative
punishment for murder, in sec. 302, Penal Code is not in the
public interest?
4. Whether the provisions of section 302 of I.P.C. are against the
ethos of Article 19 as well as 14?
From the time immemorial this has for long remained a
controversial question both at national and international level.
The issue has been tirelessly debated on national as well as
international level but nothing conclusive has come out till now.
No doubt the problem is of serious nature but the difficulty
involved should not deter us from venturing into the pros and cons
involve in the question. The opinion of intellectuals such as
Legal Philosophers, Jurists, Judges, and other social scientists
stands divided. In many countries capital punishment is an
integral part of criminal justice system and it has remained to be
accepted form of justice through the ages though its form may have
been different because of reasons of geography, culture, and the
passing of time.
The Indian jurisprudence is a blend of reformative and deterrent
theories. While the punishments are to be imposed to deter the
offenders, it is also inalienable part of Indian penal
jurisprudence that the offenders should be given opportunity for
reformation. Bearing in mind these fundamental tenets, the
legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection
basically lays down that special reasons are to be recorded by the
Court for imposing death punishment in capital offences. Thus, the
position of law after Cr.P.C. 1973 became that
the general rule
was life imprisonment while the death sentence was to be imposed
only in special cases.
Crime has rightly been described as an act of warfare against the
community touching new depths of lawlessness. The object of
imposing deterrent sentences is threefold:
(1) To protect the community against callous criminals for a long
time.
(2) To administer as clearly as possible to others tempted to
follow them into lawlessness on a war scale if they are brought to
and convicted, deterrent punishment will follow, and
(3) To deter criminals who are forced to undergo long-term
imprisonment from repeating their criminal acts in future. Even
from the point of view of reformative form of punishment
"prolonged and indefinite detention is justified not only in the
name of prevention but cure. The offender has been regarded in one
sense as a patient to be discharged only when he responds to the
treatment and can be regarded as safe"1for the society.
Hobbes asserted that every man had under the natural order has the
right of repraisal for wrongs done to himself or anyone else. Then
he said that social contract had left this right to the sovereign
while taking it away from everyone else. Kant viewed that every
political society had a duty to enforce retributive justice.
Rousseau felt that the subject ought not to complain if the
sovereign demanded the subject’s life. He considered death as a
proper punishment, if the criminal was beyond redemption. "A
society which felt neither anger nor indignation at outrageous
conduct would hardly enjoy an effective system of law" (Salmond).
England abolished death penalty by murder 2. In spite of the Murder
(Abolition of Death Penalty) Act, 1965 in England death sentence
can be lawfully imposed in cases of high treason, setting fire to
Queen’s ships, arsenals etc and in piracy with violence. In the
Soviet Union Death Penalty was abolished in May 1947 and in May
1950 it was reintroduced for Treason, espionage and sabotage and
in 1954 for intentional homicide under aggravating circumstances.
French Penal Code of 1810 as amended in 1959 retained Death
Penalty 3. Death Penalty has been retained by the prepatory draft
for the revised Penal Code of Japan4, though it should be invoked
with great caution5. This points out towards the fact that most of
the nations are reluctant to do away with the Death Penalty.
One of the arguments of abolitionists is that death penalty is
against Hindu Philosophy but this will not stand the scrutiny of
mythological texts. The imposition of death penalty in India:
appears to go back to ancient times according to the country’s
epics and mythology: stories abound in our mythology of the
destruction of demons who, became a deadly menace to the life,
property and authority of mortals and the divine race alike; tales
of Hiranyakashyapu, Bali and Mahishasura etc. No doubt religion
preaches against killing of human being but that presupposes an
ideal society and if we cannot provide ideal conditions then we
cannot of particular aspect in isolation. The statistics, which
talks of absence of any relationship between death penalty and
occurrence of crime, cannot be straightway trusted for such an
important policy decision as that of death penalty. The statistics
derived from a quantitative method may not be an appropriate
method to judge the basic truth about the qualitative aspects of
those results
Retributive character: - The punishment is retributive in
character. The object of sentencing should be to see that the
crime does not go unpunished and the victim of crime as also the
society has the satisfaction that justice has been done to it lest
it may lead to Lynch Law. There have been instances where
victim’s relative killed the accused. Criminal Law has its origin
in vengeance. Punishment mechanism revolves around the
satisfaction of law-abiding person’s anger. Anger is not always
bad but it is the indifference of community towards the
circumstances, which is more harmful. One of the purposes of law
is to calm the community’s anger by punishing the criminal. Anger
which is not selfish like greed or jealously is socially
constructive and when it erupts for right cause it should be
rewarded. Punishment is primarily satisfaction of private revenge
and at the same time an emphatic denunciation of the crime by the
society. Any civilized society which shies away from showing
righteous indignation has nothing to distinguish it from maim soul
The Criminal Law stands
to the passion of revenge in much the same relation as marriage to
sexual appetite6. Retributive punishment tends to control
recidivism.
The theory of deterrent punishment draws its inspiration from the
hedonistic philosophy of Beccaria’s classical school of
criminology. A rigorous and maximum punishment as against a
moderate and lesser punishment helps to prevent the commission of
a crime. For the incorrigibles and habitual and hardened criminals
death penalty is best suited and it is the only method teaching
hardened criminals. The incorrigible and hardened criminal as a
rotten limb of the society must be eliminated. The prevalence of
recidivism offers a serious stumbling block to a too ready
acceptance of the idea of readily achieved reformation. The
recidivist becomes the criminal who after having experienced
rehabilitation treatment returns to crime and ultimately to prison
again to be rehabilitated further. Making murder a safer
proposition, a less deadly proposition for the killer will have a
hostile effect on society. The capital punishment is an effective
tool to curve the grave wrong act such as of killing and it can
also be instrumental in preventing society from becoming ever more
imperfect than it need be.
Previous efforts to abolish the Death Penalty
Legislative attempts to abolish the death penalty in India have
failed. Before Independence a private Bill was introduced in the
1931 Legislative Assembly to abolish the death penalty for penal
code offences. The British Home Secretary at the time however
rejected the motion.
The Government of independent India rejected a similar Bill
introduced in the first Lok Sabha . Efforts were also made in
Rajya Sabha to move resolution for abolition of death sentence in
1958 and 1962 but were withdrawn after some debate.
The Law Commission in its Report presented to the Government in
1967 and to the Lok Sabha in 1971 concluded that the death penalty
should be retained and that the executive (President) should
continue to possess powers of mercy.
The issue of constitutional validity of Sec. 302, the SC in
Jagmohan V/s State of U.P. Apart thrashed out I.P.C. in detail
from the constitutional validity, the SC also discussed position
in other countries, the structure of Indian Criminal law, the
extent of Judicial discretion etc.
It was held in
Jagmohan Singh v. State of U.P.7 that death
sentence act as deterrence but as token of emphatic disapproval of
the crime by the society, where the murder is diabolical in
conception and cruel in execution and that such murderers cannot
be simply wished away by finding alibis in the social
maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and
so also the general intellectual levels are different.
The court
referred to the 25th Report of the Law Commission of India, in
which it was stated that India cannot risk the experiment of
abolition of capital punishment. The fact that the possibility of
an error being committed in the matter of sentence can be
corrected by appeals and revisions to higher courts was relied
upon.
The approach of our Supreme Court in the matter of death sentence
is cautious as well as restrictive which is in consonance with the
modern and liberal trends in criminal jurisprudence. The doctrine
of Rarest of Rare evolved by the apex
Court reflects the humanist Jurisprudence. There have been ample
instances where the Supreme Court has restricted the use and
imposition of death penalty only to cases coming with in the
category of rarest of
rare. Under sec 354(3) of the Criminal Procedure Code, 1973 a new
provision has been introduced to say that when the conviction is
for an offence punishable with death or, in the alternative with
imprisonment for life or imprisonment for a term of years, the
judgment shall state the reason for the sentence awarded and in
the case of sentence of death, the special reason for such
sentence.
Rarest of rare cases
Whether a case falls under the category of rarest of rare case or
not, for that matter the Apex court laid down a few principles for
deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances.
Court opined that while deciding the question of sentence, a
balance sheet of aggravating and mitigating circumstances in that
particular case has to be drawn. Full weightage should be given to
the mitigating circumstances and even after that if the court
feels that justice will not be done if any punishment less than
the death sentence is awarded, then and then only death sentence
should be imposed.
In Machhi singh vs. State of Punjab8 the court laid down: -
"In
order to apply these guidelines inter-alia the following questions
maybe asked and answered:
(a). Is there something uncommon about the crime, which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b). Are there circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favor of the offenders?"
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Where two members of an
unlawful assembly went forward to deal with their target by
disposing him of and, on being not able to get him, gunned down
his two young girls whom they chanced to spot on way back, the
Supreme Court held that it was not one of those
"rarest of rare" cases in which death penalty would be warranted 9.
Supreme Court in
Dhananjoy Chatterjee v. State of W.B.10 held
that
the measure of punishment in a given case must depend upon the
atrocity of the crime; the conduct of the criminal and the
defenseless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond
to the society's cry for justice against the criminals. Justice
demands that courts should impose punishment fitting to the crime
so that the courts reflect public abhorrence of the crime. The
courts must not only keep in view the rights of the criminal but
also the rights of the victim of crime and the society at large
while considering imposition of appropriate punishment.
As already stated that opinion on Capital Punishment stands
divided and large segment of population including notable
penologists, judges, jurists, legislators and other enlightened
people still believe that death penalty for murder and certain
other capital offences does serve as a deterrent and a greater
deterrent than life imprisonment. Courts must administer shock
therapy to deter certain crimes, as threat of death to the
offender may still be a promising strategy in some frightful areas
of murderous crime. Death penalty serves as a deterrent as well as
retributive. Only penalty of death, will provide maximum
deterrence. No other punishment deters men so effectually from
committing crimes, as the punishment of death. Death is death, its
terrors cannot be described more forcibly. Prima Facie, the
penalty of death is likely to have a stronger effect as a
deterrent to normal human behaviour than any other form of
punishment, though it is difficult to unravel the innermost
recesses of the minds of potential murderers. The truth is that
some crimes are so outrageous that society insists on adequate
punishment, because the wrongdoer deserves it, irrespective of
whether it is a deterrent or not. If accepted that death penalty
have no deterrent effect then it will be most illogical and
irrational to ask for continuances of a scheme of penalties for
lesser offences against society. How can lesser punishment have a
deterrent effect when the severest in the scheme of penalties have
no such effect?
Some of the observations made by the apex court in
Bachan Singh's
case are worth mentioning. On the question of reasonableness of
death penalty, the SC observed- "...if not withstanding the view
of the abolitionists to the contrary , a very large segment of
people, the world over, including sociologists , legislature ,
Jurists , judges and administrators still firmly believe in the
worth and necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime conditions in
India, contemporary public opinion canalized through the peoples
representatives in parliament, has repeatedly including the one
made recently to abolish or specifically restrict the area of
death penalty, if death penalty is still a recognized legal
sanction for murder or some types of murder in most of the
civilized countries in the world , if the farmers of the Indian
constitution were fully aware of the existence of death penalty as
punishment for murder, under the Indian Penal Code, if the 35th
report and subsequent reports of law commission suggesting
retention of death penalty, and recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354 (3)
were before the Parliament when it took up revision of the Cr.P.C.
Further the opinion of Sir James Fitziames Stephen, a great
Jurist, who was concerned with the drafting of I.P.C. is very
important to mention- " No other punishment deters man so
effectually from committing crimes as the punishment of death.
This is one of those propositions which is difficult to prove
simply because they are in themselves more obvious than any proof
can make them. In any secondary punishment, however terrible,
there is hope, but death is death, it's terrors cannot be
described more forcibly. " These views are very strong answers to
the people who oppose death punishment with the arguments that it
does not serve penological purpose.
Constitutional validity of death sentence
In the case of Jagmohan V/s State of U.P . the question of
constitutional validity of death punishment was challenged before
the SC, it was argued that the right to live was basic to freedom
guaranteed under Article 19 of the constitution .
The S.C. rejected
the contention and held that death sentence cannot be regarded as
unreasonable per se or not in the public interest and hence could
not be said to be violative of Article 19 of the constitution.
In Bachan singh’s case it was categorically opined by the Apex
court ..it is not possible to held that the provision of death
penalty as an alternative punishment for murder, in sec. 302,
Penal Code is unreasonable and not in the public interest. The
impugned provision in Sec. 302 , violates neither the letter nor
the ethos of Article 19" . [ Para 132]. Sarkaria J. delivered the
judgment for majority discussed all these issues at length, and
the SC, with the majority of 4:1 rejected the challenges to the
constitutionality of sec.302 I.P.C.
Indispensability of Capital Punishment in India
Life imprisonment in our country is not of much significance as it
can be substantially reduced (limitation is that it cannot be
reduced below 14 years). Life imprisonment under no circumstances
should be reduced as it is in most heinous crimes that the
sentence life imprisonment is awarded. Even if this is accepted
still there are other valid objections. Death penalty cannot be
removed or abolished on humanitarian grounds or on the grounds of
other alternative mode of punishment are available. A killer who
is a perpetrator of other’s right to live can’t claim to have an
inviolable right to live. The focus should be on the mischief
flowing from what the criminal has done to his victim and those
near and dear to him and greater attention be paid to victimlogy
and therefore to the retributive aspect of punishment.
The
abolitionist needs to shift their focus from criminal to victim,
as a killer is a proven enemy of society. Even if option to decide
on death penalty or life imprisonment is to be given it should be
left to the victim’s family who have suffered due to the killer
and know more about cruelty than the abolitionists. The demand of
abolition of death penalty is a demand in wrong direction and
represents a trend reversal when society is considering the issue
whether mercy killing be accepted or not. Death penalty to a
killer is a sort of mercy to an ailing society, which wants to get
rid of its enemy. The process of reformation of criminals with an
unascertained record would entail a great risk as a sizable number
of criminals instead of being reformed may be encouraged to commit
offences after offences and become a serious and horrendous hazard
to the society. The question, therefore, is--should the country
take the risk of innocent lives being lost at the hands of
criminals committing heinous crimes in the holy hope or wishful
thinking that one day or the other, a criminal, however dangerous
or callous he may be, will reform himself, Valmikis are not born
everyday and to expect that our present generation, with the
prevailing social and economic environment, would produce Valmikis
day after day is to hope for the impossible.
Even for the sake of argument if it is accepted that capital
punishment has no deterrence then it means that criminal is not
afraid of death and it will be difficult for the state to
keep
such a person in prison after all it is the fear of death that
keeps a criminal in jail. After all criminal facing life
imprisonment need a single chance to set himself free for taking a
revenge from adverse witnesses and the prosecution who according
to him were responsible for sending him to jail. Judge may also
become the victim of his anger. As there is a saying so long as
there is life, there is scope for irrepressible hope and hope for
a break for freedom. A prisoner serving life imprisonment can go
on a killing spree and there can be no further punishment from the
punishment he is already facing. One important question that
arises is shall we sacrifice the lives of future victims in order
to spare the life of a murderer. Argument that goes against death
penalty is that the societies do not have the right to take
anyone’s life since it cannot give life then why to kill soldiers
of enemy, terrorist. One may say what is the need of providing
arms to security forces if no human being can be deprived of
his/her life whatever may be the circumstances. Prima Facie, the
penalty of death is likely to have a stronger effect as a
deterrent to normal human behavior than any other form of
punishment, though it is difficult to unravel the innermost
recesses of the minds of potential murderers.
The conditions prevailing in some western countries that have
abolished death penalty are incomparable with India. In
abolitionist States even the most notorious criminals are
effectively segregated from civil society for the rest of their
natural life.
Contrastingly, in India life sentence can be reduced to 14 years.
Our prison system is inadequate and unable to hold capital
offenders for longer periods as in most western countries. How
many times we have read the reports in newspaper about recovery of
cell phones from prisons and many criminals find it suitable to
operate from jails as they are protected from their rival
criminals.
Conclusion:-
"Each extreme is a vice; virtue lies in the
middle" - Aristotle
The death penalty is a part of Indian law, and unless it is
altered by legal or constitutional amendment, it is a given which
every judge of every Indian court is bound to apply, whenever the
relevant legal test are fulfilled.
The Indian jurisprudence is a blend of reformative and deterrent
theories. While the punishments are to be imposed to deter the
offenders, it is also inalienable part of Indian penal
jurisprudence that the offenders should be given opportunity for
reformation. Bearing in mind these fundamental tenets, the
legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection
basically lays down that special reasons are to be recorded by the
Court for imposing death punishment in capital offences. Thus, the
position of law after Cr.P.C. 1973 became that the general rule
was life imprisonment while the death sentence was to be imposed
only in special cases.
Prima facie, the penalty of death is likely to have a stronger
effect as a deterrent to normal human being than any other form of
punishment, though it is difficult to unravel the innermost
recesses of the mind of the potential murderers. The truth is that
some crimes are so outrageous that society insists on adequate
punishment, because the culprit deserves it, irrespective of
weather it is a deterrent or not. Retribution is still a socially
acceptable function of punishment. The instinct for retribution is
part of the nature of man. Retribution and deterrence are not two
divergent ends of capital punishment. They are convergent goals,
which ultimately merge into one. Death penalty to a killer is a
sort of mercy to an ailing society, which wants to get rid of its
enemy. Anger which is not selfish like greed or jealously is
socially constructive and when it erupts for right cause it should
be rewarded.
Even for the sake of argument if it is accepted that capital
punishment has no deterrence then it means that criminal is not
afraid of death and it will be difficult for the state to keep
such a person in prison after all it is the fear of death that
keeps a criminal in jail. The abolitionist needs to shift their
focus from criminal to victim, as a killer is a proven enemy of
society.
If the law is not enforced then cure is enforcement, not repeal.
If death penalty is an evil it is a necessary evil and a criminal
chooses this voluntarily.
***
References:-
# The Death Penalty: Morally Defensible - by Casey Carmical
# Information on Death Penalty - by Bikram Jeet Batra
# Capital punishment: revisiting the abolition-retention debate”
by British Council India –Legal news
# Death Penalty- Case for Its Abolition - by Monica Sakhrani,
Maharukh Adenwalla
# Consultation Paper on Modes of Execution of Death Sentence and
Incidental Matters” Published by 35th Law Commission of India
# Death Penalty Useless - by Patrick Murphy U.S.A. Today, 23 Feb.
(1995)
# Two Dozen Mercy Petitions Pending - The Hindu, Oct. 9, 2006,
# Doing Away with the death Penalty - By Promod Nair
# Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
# Universal Declaration of Human Rights.
# International Covenant on Civil and Political Rights.
#
www.unitedhumanrights.com
#
www.webster.com
#
http://www.hindu.com/2006/10/09/stories/2006100916471400.htm
#
http://www.carmical.net/articles/deathpenalty.html |
Capital
Punishment: Revisiting the Abolition-Retention Debate
More
Articles:
The
author can be reached at:
ShantanuJugtawat@legalserviceindia.com /
