DEATH PENALTY: CONTEMPORARY ISSUES

SHRUTI SHARMA::             Untitled

Death sentence has always been a question of controversy, while on one hand it becomes a matter of human rights with respect to the accused; on the other hand it is one weighing the gravity of the crime and its impact on the society. The issue of death penalty has been debated and discussed from a prolonged time but till now no conclusion can be drawn about the retention or abolition of the provision. Death penalty has been a mode of punishment from time immemorial for the elimination of criminals and is used as the punishment for the heinous crimes. We have discussed the constitutional validity of death penalty by way of various landmark cases, the juristic views regarding capital punishment, the international scenario, the changing trends of various nations in this aspect. Also, we have discussed about the social, political, legal and psychological aspects of capital punishment. Finally, considering all the above factors we have drawn a conclusion that, as a deterrent punishment life imprisonment is enough so that Human Rights of an individual to live is retained and the Human Rights of the other members of the society to have protection from incorrigible offenders is also protected.

Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a deathsentence, while the actual process of killing the person is an execution. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally “regarding the head”. Various countries have different outlook towards crime in different ways. For eg.  Arab countries work on the principle of retributive way of punishment whereas many other countries including India have a deterrent way of punishment. Though of late there has been a shift towards restorative and reformist approaches to punishment including India. India is a retentionist country and has retained death penalty on the ground that it is awarded only in the “rarest of rare” cases and for “special reasons”. Though “rarest of rare” and “special reasons” has not been defined.

In India there are two broad categories of laws that provide for death penalty. They are, Indian Penal code, 1860 and special[1] legislation. Section 53 of Indian Penal Code, 1860 is the source of power to award a death sentence.[2] The author of the Indian Penal Code, 1860 quoted the following sentences about death as a punishment , “We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the state has been committed”. In Criminal Procedure Code, Section-354 describe the contents of judgment for death sentence.

If we talk about penologoical aspects, there are several theories of punishment such as deterrent theory, preventive theory, retributive theory, reformative theory, rehabilitative theory and so forth. Deterrent theory has been more focused as it emphasizes on protection of society from offenders.It sets an example for the society so that it deters the future criminals. In this way it creates a sense of fear among people and prevents them from breaking the law. Hence, it reduces the crime rate in the society.

Juristic View:

The view of Lord Denning is that,” capital punishment is the way in which society expresses its denunciation of the wrongdoer. It is necessary to maintain respect for the law. Some crimes are so outrageous that society insists on adequate punishment for the wrongdoer.”[3] According to Dr.Ernest Van Den Haaq, “a very strong symbolic value attaches to execution. The motives for death penalty may include vengeance, but legal vengeance solidifies social solidarity against law- breakers and probably is the only alternative to the disruptive private revenge of those who feel harmed.”[4]Beccaria writes,” the more cruel punishment becomes, the more human minds hardened, adjusting themselves, like fluids, to the level of objects around them; and the ever living force of the passions bring it about that after a hundred years of cruel punishments, the wheel frightens men only just as much as at first did the punishment of prisons.”[5]Hobhouse expresses himself in these words, “people are not deterred from murder by the sight of the murderers dangling from a gibbet. On the contrary, what there is in them of lust for blood is tickled and excited, there sensuality or ferocity is aroused and the counteracting impulses the version to bloodshed, the compunction for suffering are arrested.” [6]

Constitutional validity of death penalty challenged :

The constitutional validity of death penalty in India has been challenged in the following rulings. Jagmohan Singh v. State of U.P (AIR 1973 SC 264) -In this case Supreme Court rejected the argument that, the death penalty is the violation of the “right to life” which is guaranteed under Article 19 of the constitution. Rajendra Prasad v. State of U.P (AIR 1979 SC 917)-In this case Justice Krishna Iyer has empathetically stressed that death penalty is voilative of Articles 14, 19 and 21 of the constitution of India.Bachan Singh v. State of Punjab (AIR 1980 SC 898)-This case overruled the decision of Rajendra Prasad’s case and it expressed the view that death penalty as an alternative punishment for murder is not unreasonable and hence, not violative of Articles 14, 19 and 21 because the public order contemplated by clauses(2) to (4) of Article 19 is different from law and order and also enunciated the principle of awarding the death penalty only in rarest of rare cases. Macchi Singh Vs State of Punjab (AIR 1983 SC 957)- In this case broad outlines of the circumstances when death penalty can be imposed was laid down by the Supreme court. Similarly in various other cases the Supreme Court has given its views on death penalty and on its constitutional validity. But the punishment of death penalty is still used in India, some time back the death penalty was given to Mohammad Ajmal Kasab. The Pakistani terrorist convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate was finally hanged on 21 November 2012. Next in the row was  Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013.The next convict in the death row is Devendra Pal Singh Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy petition was rejected by the Supreme Court by holding that in terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.

Global Move:

By various mechanisms the international communities have taken a global move in rejection of death penalty. In 1966 nations adopted an international convention to regulate the use of death penalty as per Article 6 of the International Covenant on Civil & Political Rights (ICCPR). [7] In Article 6 of the ICCPR UN Human Rights committee states that, the abolition of death penalty is desirable. It further states that all measures that are taken for the abolition of death penalty must be considered as progress in the enjoyment of right to life. In the past three decades great strides have been made. In 1980 the figure of countries abolishing death penalty was 25 but now it is 90 and also 32 countries are considered to be the abolitionist in practice. This means that total of 135 nations of the world have turned their back to the capital punishment. The vast majority of death penalty is seen in china. In 2006, it was believed that around 7000-8000 death penalties were awarded. Though now, even in China progress has been made for the abolishment of death penalty. By way of an amendment in the year 2007 all the death sentences were required to be approved by the Supreme People’s Court. Also one of the Chinese delegate La Yifan in UN Human Rights Council in March 2007 quoted, “ I am confident that with the development and progress in my country, the application of death penalty will further be reduced and it will be finally abolished. Under European Union by way of various protocols the death penalty has been regarded as cruel, degrading, inhuman punishment. Following the resolutions of European union and United Nations many countries have abolished capital punishment. For eg. Germany is free from such kind of a punishment, England abolished it from The Murder (Abolition of Death Penalty) Act,1965. If we talk about India, it keeps a balance between the global trend i.e away from death penalty and those who continue to execute it. Despite taking pride in being a country which runs on a rule of law it is retaining the punishment of death sentence. Using the 1980 majority ruling of Bachan Singh Vs State of Punjab as final word on the subject, Indian state had a moralistic and conservative tone arguing that such kind of a punishment instills a sense of fear and deters future criminals.

Implications:

Socio-political:  Delay in execution is not infrequent which is a violation of accused’s basic human rights including right to live with dignity which is enshrined under article 21 of the Indian Constitution and the Universal Declaration of Human Rights. The accused in death sentence who is waiting for execution of punishment is living with terror of death every moment he is waiting for. Delay in execution is another punishment on him which is inhuman, degrading and must not be allowed in any civilised society.

Social: It creates fear in the entire society, if somebody will commit such a crime which is of the “rarest of rare” nature, he will be hanged till death. Sometimes death penalty is awarded to such a person who is the sole support of the family, the only person who is earning. So, this is not just on the part of the family.

Psychological: It effects the psychology of the people. It creates a sense of fear among them. However, a person may be psychologically so incurably sick such that awarding of death sentence to him may be felt necessary in order to save his potential victims.

Legal: There are various theories of punishment out of which the deterrent theory is the base as it sets an example for the society so that it deters the future criminals.

Conclusion :

Death as a penalty has troubled human mind persistently. Death sentencemust fulfill the conditions for protection of human rights in Criminal Justice Administrationin India.  In India the issue of death sentence is hotly debated and has attracted the attention of general public as well as government and non-governmental organisations. Though India is an active member of the United Nations and has signed and ratified most of the International Instruments on human rights, capital punishment still remains in our statute book. According to our judiciary it must be imposed in exceptional cases   i.e. in rarest of rare cases with special reasons.

Due to arbitrary and discriminatory decisions and unjust procedures, basic rights of accused are violated in relentless and barbarous manner which are not only contrary to the National Human Rights principles enshrined in the Constitution but also contrary to the Universal Human Rights ethos. In order to serve as a just and effective mechanism for administration of justice to all sections of society, law should be fostered by and sustained in human rights. There is nothing to prove the fact that extreme measure of death sentence reduces crime rates in contemporary society; rather death sentence has failed as a deterrent. Life imprisonment is enough for deterrence as well as for mental and moral transmogrification of a human being.

Footnotes 

[1] TADA, The Armed Forces Act,1958

[2]  Offences Punishable with capital punishment in India – Waging war against the Government of India (Section 121), Abetting mutiny actually committed ( Section 132), Giving or fabricating false evidence upon which an innocent  person suffers death ( Section 194) , Murder (Section 302), Murder by the life convict (Section 303) (unconstitutional after 1983, Mithu’s case), Abetment of suicide of a minor or an insane or an intoxicated person (Section 305), Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused. (Section 307), Kidnapping for ransom, etc (Section 364-A), Dacoity accompanied with murder (Section 396), Abettor or conspirator of any of the offences punishable with death and actually committed in that consequence. (Section 120B and Section 109).

[3]V.D. Mahajan, Jurisprudence and Legal Theory

[4]V.D. Mahajan, Jurisprudence and Legal Theory

[5]G.W. Paton, A text book on Jurisprudence

[6]G.W. Paton, A text book on Jurisprudence

[7]http://www.amnesty.org/en/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf

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