By Archit Rajpal, Chanakya National Law University, Patna
Ever since man started to live in colonies and evolved the theory of society, the concept of ‘sanction’ took birth which ensured control over the behaviour of man and thus protected interest of the society atlarge. Sanction is defined as a ‘consideration operating to enforce obedience to any rule of conduct and as the meaning suggests it has proved to be an effective tool to ensure perfect law and order in the society. In earlier times the ruler or the emperor was the sole authority who exercised judicial powers too. Since that time itself sanctions were awarded in different modes like compensation, imprisonment, whipping of the guilty and even death. However, during that time the process of granting death was cruel and painful and it was awarded only in grave conditions where the accused was found guilty of crimes like murder, treason or any other serious act. Gradually, with time numerous reforms were made in the process of execution of the guilty to ensure less painful and peaceful death. At present different countries have their own way of awarding death and due to the sensitive nature of the act, different processes were adapted which is certainly not the case in India. In India, a person who is awarded death sentence is executed only by hanging, which is considered cruel and inhuman and stands in violation to Article 5 of the Universal Declaration of Human Rights which says, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” However, the Supreme Court of India has brought reforms to ensure that the death penalty is given in cases of ‘rarest of rare nature’and thus it has switched to a completely different path by granting life term to offenders who do not fall under this category. However, in society’s interest it has made sure that the ‘life term’ extends beyond the 14 years term. It was held in the case Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka. In this case the court held that the death penalty ought not to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. The Court dealt with the issue of whether the death penalty can be substituted by life imprisonment with the further direction that the convict would not be released for the rest of his life. This led to hot debates on justification of death penalty and the need for an alternate option. Modes of granted death and its background India is among countries like the U.S., Japan, Pakistan, South Korea and China where the death sentence is awarded. As per the report prepared by Amnesty International, China is on the top in the execution of capital punishment. In some Arab countries, beheading is done in public and stoning to death also prevails. Hanging is a British method and our freedom fighters sacrificed their lives suffering hanging under the British rule. The French Revolution followed the guillotine, but in America, the electrical chair, gas chamber and putting into the death chamber to sleep by less painful lethal drugs are commonly adopted. In olden days, we had crucifixion, throwing to the lion, dropping in boiling water-tanks or being exposed to poisonous snakes. All these had religious sanction. The European countries have done away with capital punishment and the abolition of capital punishment is now a condition for membership of the EU. Compensation is another word complimentary to punishment. Nevertheless the act of taking away someone’s life to compensate the revenge or felony he has committed willfully or otherwise or due to emotional or unbearable mental torture and agony is barbaric, if not inhuman. The laws are to be faulted and not the executors of the dictum of laws. There are cases of court rehearing or reopening cases for landing at fresh evidence and reversing the judgment. It seems that it is just a way of saying that as a justice system, we have the right to end a person’s life. Each society has decided for itself the suitability of execution as a punishment for crime. Even, it is felt sometimes that other countries should not have death as a sentence for certain crimes. There are people who feel only a death sentence can bring closure to the affected families. But all that this achieves is to give the families a sense of revenge. We are actually feeding the very sentiment we did not want when the Mumbai attack actually happened. If we had attacked Pakistan in that emotional moment what would have we achieved except satisfaction to our vengeful nature. As a country we acted with maturity. So how is this different. Isn’t the death sentence an extension of the spectrum of punishments? So how is it different? By putting a person in solitary confinement or life imprisonment, aren’t we taking away some part of his life? This is because here the law wants the society to be safe from such people. Law also gives the person an opportunity to change, to introspect and to realise what wrong has been committed by him. This may or may not happen but we, as a society, remain humane. Isn’t this what we try to find in us all our life? “Why waste the taxpayer’s money keeping ‘this’ man alive?” Many people may ask! Do we really discuss how the taxpayer’s money is being wasted on other things about which we never ask a single question? Why can’t we use the taxpayer’s money to keep the convict in jail all his life and remain as a mature, balanced and progressive society? Why should such a criminal even have the right to live, many ask? Who gives the right to take the convict’s life? If law does the same, then how is it different from a murderer? We have every right to defend our society, country and life from the dangers of terrorism. But how does that extend to ending his life. Some argue that the death sentence will work as a deterrent to others like Kasab. But there are no statistics to prove that countries that have banned the death sentence have a higher rate of murder or rape. Similarly, the rate of crime in countries like the U.S. or India is not lower because of the existence of the death penalty. Over hundred countries have removed the death sentence including some African countries that have seen the worst kind of genocide. There is no doubt that people like Kasab need to be removed from society, as we have every right to safeguard ourselves. But is execution the only way? And will that add to our security or strength? Moreover, would keeping such people in jail and incurring heavy expenditure upon their maintenance really help the country and its people in anyway. We know the death sentence is law but we also know that we need to think very wisely and deep in ourselves on whether we need it or not. In the meantime we need to realise that death for anyone is not an issue which can be dealt carelessly rather it needs to be examined with utmost carefulness and diligence. Law stands for During that time the process of granting death was cruel and painful and it was awarded only in grave conditions where the accused was found guilty of crimes like murder, treason or any other serious act. Gradually, with time numerous reforms were made in the process of execution of the guilty to ensure less painful and peaceful death
justice, which it ensures through judiciary but on the other hand we shouldn’t celebrate execution. Scope in India In India, after all legal deliberations are over with due care, there is still an option for the convict to escape under mercy petition that is sought from the President or the Governor. Is it a random decision, will and pleasure or political? There are no constitutional obligations or guidelines for the power sources to act upon. The accused, rather the punished, is inching to death with all the agony when the mercy petition is kept aside for long in the table drawers, cold storage act, indeed! It is Taking the extreme step to maintain Rule of Law a nightmare not in sleep but immediately after waking up. In fact the condemned and several of his family die several times over, during this prolonged span of time. Capital punishment under Section 302 of the Indian Penal Code is to be debated and done away with, as early as possible. Being one of the most controversial provisions in the Indian Constitutions, there have been many controversial cases against death penalty throughout At present different countries have their own way of awarding death and due to the sensitive nature of the act, different processes were adapted which is certainly not the case in India. In India, a person who is awarded death sentence is executed only by hanging, which is considered cruel and inhuman and stands in violation to Article 5 of the Universal Declaration of Human Rights which says, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” However, the Supreme Court of India has brought reforms to ensure that the death penalty is given in cases of ‘rarest of rare nature’ and thus it has switched to a completely different path by granting life term to offenders who do not fall under this category the entire course of time. The three landmark cases in the history of the Supreme Court of India are following: The Jagmohan Singh Vs. State of Uttar Pradesh case was important in the light that it challenged the constitutionality of the death penalty. However, this was rejected by the Supreme Court, saying “…in the face of these (Art. 21 & 72) indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest”. But fortunately, a new Cr.PC in the same year had changed the death penalty from being the norm to an exception. In 1980, the Supreme Court again upheld the constitutionality of the death penalty in the key case of Bachan Singh v. State of Punjab, although the bench was not unanimous. The Court said, “.for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” It was in this case that the phrase “rarest of rare” was introduced and which continues to be cited and used even till the present day. The Machchi Singh and ors. Vs. State of Punjab case was of importance as the Supreme Court laid down what made cases ‘“the rarest of rare” and thus could invite the death penalty.
The following were what came up: * Manner of commission of murder * Motive for murder * Anti-social or socially abhorrent nature of the crime * Magnitude of the crime, and; Personality of the victim of murder.
The entire system of justice is based on the foundation which aims to provide a suitable punishment for the crimes either against a person or the state at large. So why can’t death be a suitable punishment? But what does the judiciary mean when it convicts someone? It means that he or she is not suitable to live in the society as they may hamper the peace of the society and they pose as a threat to the society and its people and thus they deserve to be executed. Law also points out that by convicting the accused, it sets an example in the society so that any person doing such act in future or thinking to do such act, would think thrice about the consequences he would likely be facing and this, at times, stops the person from committing such heinous crimes. The question involving death penalty is a complex issue In Europe the death sentence is abolished as it is thought to be ‘inhuman’. But the question that must be answered is whether death sentence is a deterrent to crime. Death sentence per se by all accounts is not a deterrent in crimes that are aroused by passion or temporary loss of reason. In such cases the death sentence may have little effect. The question is not whether crime will go down or up if a death sentence is abolished. The question is whether a society at large can allow a man who has committed heinous crimes like child rape and murder should be allowed to be a burden on society for the next period of his natural life. Also there is a need to set an example that extreme crime will not pay. Thus preplanned and motivated crimes can go down. There is no doubt that one thing man fears the most is death. It is the be all and end all of all existence. It is the time of reckoning and people involved in ghastly crimes do buckle down when they face the gallows. The death sentence has a value and needs to be implemented. Though it does not affect crime, it sets an example to others and above all, it reassures the people at large that crime is not an effective way of life. Granted, the death sentence will not abolish crime. It is not possible, as crimes of passion and temporary insanity will always remain. But preplanned heinous crimes may go down. The important point is that in case a death penalty is on the statute books, then it must be implemented. Procrastination at that point of time is bad and can demoralize society. The opposition to abolition of the death penalty stems from the myth that it will lead an increase in the number In India death for such person is a must to create an example for the society and to bring in a sense of fear in the minds of people who are involved in mala fide and ill practices. Leniency in dealing with offenders of such case is currently not a matter of appraisal in India. Even after grave steps taken by the Human Rights Commission, the Indian courts are of the opinion to keep the provision for death sentence intact but with a narrow purview. It is mandatory because of the low literacy rate in the country and less value for moral ethics which drives ill intent people to end up committing such crime Deterrent to acts against soverign of murders. The fact is that in the state of Travancore there were 162 murders between 1946 and 1950 when the death penalty was not in force, But in the five years from 1950 when it was re-imposed. There were 967 murderers. It has been argued that it is not possible to fight such crimes by framing law. What we need is to target the root of it. Discontent in a society is one of the reasons for such crimes. Those who do not support capital punishment often quite ignore incidents like Mumbai or attack on Andhra Pradesh Chief Minister’s convoy in Tirupati. But we should remember that terrorist and suicidal maniacs responsible for the blasts and other such crimes also do not care about the extremely of punishment. They are already beyond the pale of humanity and have to be fought using innovative ideas and methods of counter terrorists. It cannot be disputed that the outcome of any trial depends to a large extent on the quality of legal advice that the accused receive. This loads the scales in favour of the rich the arbitrariness of the sentencing mechanism in India persuades one to argue strongly against releasing the death penalty but it is the Parliament who has the right to take capital punishment. Thus, we conclude that in India, the law is not incorrect in granting death to the person guilty of rarest of rare crime. In India death for such person is a must to create an example for the society and to bring in a sense of fear in the minds of people who are involved in mala fide and ill practices. Leniency in dealing with offenders of such case is currently not a matter of appraisal in India. Even after grave steps taken by the Human Rights Commission, the Indian courts are of the opinion to keep the provision for death sentence intact but with a narrow purview. It is mandatory because of the low literacy rate in the country and less value for moral ethics which drives ill intent people to end up committing such crime. Therefore, in India, with recent amendments in the penal laws, purview of death sentence has been narrowed and it can thus be held justified and effective. The just, fair, effective and reasonable nature of the amended death sentence clause is evident from the recently decided Dhananjay Chatterjee Case, wherein the crime committed by the accused was found to fall within the purview of the death sentence provision and was thus awarded death. Even the President of India failed to acknowledge his appeal to lessen his punishment and the punishment was finally awarded.