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Capital Punishment: Revisiting the Abolition-Retention Debate

Written by: Shantanu Jugtawat & Hirdesh Singh - National Law Institute University,Bhopal
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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 Punjab 8 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?"
 
Aggravating Circumstances Mitigating circumstances
1. Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
2. Murder- for a motive, which evinces total depravity and meanness.
3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath (not for personal reasons).
4. Bride burning/ Dowry death.
5. Murderer in a dominating position, position of trust or in course of betrayal of the motherland.
6. Where it is enormous in proportion.
7. Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.
1.That the offence was committed under the influence of extreme mental or emotional distribution;
2. If the accused is young or old, he shall not be sentenced to death.
3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
4. The probability that the accused can be reformed and rehabilitated; The state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
6.That the accused acted under the duress of domination of another person.
7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

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

The author can be reached at: ShantanuJugtawat@legalserviceindia.com / Print This Article

More Articles:
Death Sentence
Rights of Victims under Criminal Justice System
Capital Punishment

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