A RATIONALE OF DEATH PENALTY

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INTRODUCTION – A RATIONALE OF DEATH PENALTY

Punishment is given to the offenders with the aim to check them from committing crimes again. It deters not only the actual offenders but also others from doing the same kinds of acts in the future. On the one hand, it is some solace to the victim or this relative if the offender is punished and on the other hand, it serves a social purpose to prevent the people from indulging in criminal acts. The persons in authority or the members of the society may think of the punishment as a device to induce conformity with social and legal norms. In every society, the law violators have to bear the penalties.

The tribal have their own laws. With the advancement of civilization, the changes in the punishments and their forms have come on the scene. So that the punishment may be a reasonable means to check the crime, the three things are essential for it. The first is the speedy and inescapable detection and prosecution, the second is a fair chance for a fresh start after the punishment and the third is that the State which claims the right to punish must uphold superior values to be reasonably expected from the prisoner for being acknowledged. 

CONCEPT OF PUNISHMENT

Punishment etymologically derives its origin from Greek ‘Pu’ meaning ‘to cleanse’. In the same way Sanskrit term ‘Dam’ means ‘to check’ and the term ‘Danda’ means a stick; an r symbol of authority and punishment. Punishment has had great social significance since the Vedic period as it was thought that punishment washed away the guilt of misdeed and he was freed from the wrongdoing.

All through the ages, society always reacted to the crimes and the reactions have been different at different stages of human civilization and differed among various societies. All such reactions were fructified in the form of punishment which was inflicted on the wrong-doer.

Punishment is a designed social reaction to crime. It is a human act and involves the deliberate infliction of suffering on the wrong-doer. It is institutionalized suffering. The attitude of the society towards the criminals has been governed by the emotions and traditions, prevalent in a given society. The infliction of suffering on the criminal provided a sense of relief or gratification to the members of the society. The impulses of the human mind get a sense of satisfaction by inflicting punishment on the wrong-doer.

CAPITAL PUNISHMENT

Capital Punishment, also referred to as the death penalty, is the judicially ordered execution of the prisoner as a punishment for a serious crime, often called a capital offense or a capital crime. Some jurisdictions that practice capital punishment restrict its use to a small number of criminal offenses, principally treason and murder. Although most of the developed nations of the world have done away with Capital Punishment in India Capital Punishment is legal.

According to the Supreme Court of India death penalty has to be used in the “rarest of rare cases”, although the meaning of this phrase is not clearly defined. Capital Punishment or death sentence is inflicted on the offenders for murder or dacoity. Death Sentence has been inflicted on the offenders for various crimes in different countries depending upon the social setup. The infliction of death sentence for heinous crimes like murder has been in vogue since times immemorial and perhaps shall continue for all times to come because the criminals disturb the peace and tranquility of the society and such criminals ought to be banished. Garofalo, a well-known criminologist, favored the death penalty as the most efficient means of eliminating criminals.

POSITION IN INDIA

Under section 367 (5) of the Code of Criminal Procedure, 1898, the normal rule was to impose the death sentence on a person convicted of an offense of murder, and in case of a lesser sentence, the

court was required to give the reasons. By the amendment of the Code in 1955, the court could award a death sentence or life imprisonment or death sentence and death sentence did not remain the rule. After the enactment of the Code of Criminal Procedure, 1973, life imprisonment or lesser imprisonment is a rule and the court has to state the special reasons in the judgment for awarding a death sentence. The Law Commission of India also favored retention of the death penalty, but in very limited cases. All the State Governments in 1956 in India opposed the abolition of the death penalty, on a move by the Central Government to have the views of the States.

Law Commission

The Law Commission in its 35^th report said that the risks involved in the abolition of Capital Punishment could not be undertaken in the present state of the country. No single arrangement for abolition or retention can decide the issue. In arriving at any conclusion, the need for protecting society in general and individual human beings must be borne in mind. On a consideration of all the issues involved, the Commission is of the opinion that capital punishment should be retained in the present state of the country.

Jagmohan Singh v. the State of U.P.

In 1973, in Jagmohan Singh v. the State of U.P., the death sentence was held constitutional. It was contended that the right to live was the basic right to the freedom guaranteed under Article 19 of the Constitution. The Supreme Court rejected the contention and held that capital punishment cannot be regarded as unreasonable.

The Supreme Court observed that: “In India, the subject of capital punishment has come before Parliament earlier, although our social scientists have not made any sociological or statistical study in-depth0 yet. On the statutory side, there has been a significant change since India became free”. 

Before 1955, under section 367 (5) of the Cr. P.C, as it stood before its amendment by Act 26 of 1955, the normal rule was sentence to death to a person convicted for murder and to impose a lesser sentence for reasons to be recorded in writing.

After 1955, by amendment, this provision was deleted with the result that the court is now free to award either death sentence or life imprisonment, unlike formerly when death was the rule and life term the exception for recorded reasons.

After 1973, in the new Criminal Procedure Code 1973, a great change has overtaken the law.

S. 354(3)- When the conviction is for an offense punishable with death, or in the alternative, with imprisonment for a term of years the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence.

The use of capital Punishment has been made sparingly for the rarest and there is a tendency to restrict its use to grave offenses committed under aggravating circumstances.

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CONSTITUTIONAL VALIDITY OF DEATH PENALTY

At independence in 1947, India retained the 1861 Penal Code which provided for the death penalty for murder, requiring judges to state the reasons if a death sentence was not imposed.⁷ During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution.

Private members’ bills to abolish the death penalty were introduced in both houses of parliament over the next two decades, but none of them was adopted. In 1973, the Supreme Court of India upheld the constitutionality of the death penalty for the first time in the case of Jagmohan Singh v. the State of U.P. (AIR 1973 SC 947). In the same year, a new Code of Criminal Procedure was adopted. The new Code required judges to note ‘special reasons’ when imposing death sentences and required a mandatory pre-sentencing hearing to be held in the trial court. The requirement of such a hearing was obvious, as it would assist the judge in concluding whether the facts indicated any ‘special reasons’ to impose for the death penalty.

OFFENCES PUNISHABLE WITH DEATH SENTENCE

Capital Punishment is prescribed in India for various offenses under the Indian Penal Code and also other acts. The offenses for which capital punishment is prescribed under IPC are as follows-

1. Waging War against the Government of India (S.121)
2. Mutiny and its abetment ( S.132)
3. Giving or fabricating false evidence upon which an innocent person suffers death (S.194)
4. Murder (S. 302)
5. Abetment of a suicide of woman or an insane person (S. 305)
6. Dacoity accompanied with murder (S. 396)
7. Attempt to murder under section of imprisonment if hurt is caused in such attempt (S. 307)
8. Kidnapping for ransom (S. 364 A)
9. Rape when the victim is under 10 years or rape by a relative when the victim is under 18 years of age.

INDIAN LAW ON A RATIONALE OF DEATH PENALTY

The receptionists justify capital punishment as a social necessity having a unique deterrent type of punishment provided from time to time.

Under ordinary criminal law, all trials involving possible death sentences are initially held before a District and Sessions Court at the State level. Death Sentence imposed in such trials must be reviewed by the High Court, which has the power to direct further inquiry to be made or additional evidence to be taken upon any point bearing on the guilt or innocence of the defendant. In the High Court, a bench comprising a minimum of two judges must, on appreciation of the facts, come to its own conclusion on guilt and award sentence as deemed fit in the circumstances of the case. Based on its assessment of the evidence on record, the High Court may

1. confirm the death sentence or impose another sentence in its place;
2. annul the conviction and convict for any other offence of which the Sessions Court might have convicted the defendant, or order a new trial on the basis of the amended charge; or
3. Acquit the defendant.

The High Court serves as the first court of appeal for a person sentenced to death, except under some anti-terrorist legislation where the Supreme Court of India is the first appellate court. Where a death sentence has not been imposed by a trial court, the State can appeal to the High Court to enhance the sentence to one of death.

Automatic right of appeal

There is no automatic right of appeal to the Supreme Court, except in cases where a High Court has imposed a death sentence while quashing a trial court acquittal. Even where a High Court enhances a trial court’s sentence to that of death, there is no automatic right of appeal to the Supreme Court. ‘Special leave’ to file an appeal with the Supreme Court has to be granted by the High Court or by the Supreme Court itself.

The judicial process in capital cases comes to an end once the higher courts have confirmed the death sentence. At this stage, the defendant can file a mercy petition with the state or national executive. Under Articles 72 and 161 of the Constitution of India, the state governor and the President of India have the power to grant a pardon or commutation of sentence. These constitutional provisions implicitly allow for a two-tier process of seeking commutation, first from the state governor and then from the President. The executive also has the power under the Indian Penal Code to commute a death sentence without the consent of the offender.

Prior 1955

Prior to 1955, judicial discretion in awarding a death sentence was circumscribed by requiring the judge to record his reasons for the discretion of the judge awarding a lesser punishment. This, in other words, meant that the discretion of the judge was open to further judicial review. However, it was subsequently realized that this restriction on the power of the court was unnecessary because at times it nullified the achievements of the judge if his reasons for awarding life imprisonment instead of death sentence, did not argue well even though he might be ultimately correct in his final judgment.

The Code of Criminal Procedure, 1973, also contains a provision regarding death sentence.

S.354 (3) defines the reasons for awarding a death sentence.

S. 354(5) When any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead.

S.366 to 371 defines the Submission of death sentences for confirmation.

The Code of Criminal procedure, 1973 further requires that the sentence of death imposed by the Sessions judge can be executed only after it is confirmed by the High Court. That apart section 235 (2) of the Code further casts a statutory duty upon the court to hear the accused on the point of the sentence. The Court should also call upon the state i.e., the Public prosecutor to mention with reasons whether or not that extreme penalty prescribed by law is called for in view of the facts and circumstances of the case. When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such steps as may be necessary.

Death Sentence

In case the death sentence is confirmed the Court of Session would issue a warrant in the prescribed form to the Officer in charge of the Jail for the proper execution of the sentence.

When a sentence of death is passed by the High Court in appeal or in revision the Court of Session shall on receiving the order of the High Court cause the sentence to be carried into effect by issuing a warrant( S. 414 Cr.P.C.).

Section 414 is applicable only in cases in which capital punishment is passed by the High Court itself either in an appeal against acquittal or for enhancement of sentence or in revision proceeding for the first time.

Execution of death sentence by public hanging is a barbaric practice. According to section 416 of the Code of Criminal Procedure if a woman sentenced to death is found to be pregnant the High Court shall order the execution of the sentence to be postponed, and may if it thinks fit, commute the sentence of imprisonment for life.

Now the code of Criminal Procedure has provided for the hearing of the accused on the question of sentence. This provision occurs in Sections 235 and 248.

S.235 (1) – After hearing arguments and points of law, the judge shall give a judgment in the case.

           (2)- If the accused is convicted, the judge, shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law.

The new provision of section 235(2) is in consonance with the modern trends in penology and sentencing procedures. There was no such provision in the old code.

Under the old code whatever the accused wished to submit in regard to the sentence and the judgment was delivered.  There was no separate stage for being heard in regard to sentences. The accused had to produce material and make his submissions in regard to the sentence on the assumption that he was ultimately going to be convicted. This was most unsatisfactory.

The legislature, therefore, decided that it is only when the accused is convicted that the question of the sentence should come up for consideration, and at any stage; an opportunity should be given to the accused to be heard in regard to the sentence.

Important stage in the process of administration of criminal justice

It was realized that sentencing is an important stage in the process of administration of criminal justice- as important as the adjudication of guilt. And it should not be consigned to a subsidiary position as if it were a matter of not much consequence. Moreover, It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the Court.

It is thus evidently clear that a heavy-duty cast by section 302 of the Indian Penal Code on the Judge, of choosing between death and imprisonment for life for the person found guilty of murder, is now expected to be discharged in a highly responsible manner by complying with the provisions contained in section 354(3) and 235(2) of the Code of Criminal Procedure, 1973 so that the principle of natural justice and fair play holds its sway in the sphere of sentencing. These make provisions also help the Judge to individualize sentencing justice and make it befitting to the crime and the criminal.

ARGUMENTS IN FAVOUR OF RETENTION OF DEATH PENALTY

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 the future. Even from the point of view of the reformative form of punishment “prolonged and indefinite detention is justified not only in the name of prevention but a 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” for the society.

The Punishment

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 a 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 the victim’s relative killed the accused. Criminal Law has its origin in vengeance.

The punishment mechanism revolves around the satisfaction of a law-abiding person’s anger. Anger is not always bad but it is the indifference of the community towards the circumstances, which is more harmful. One of the purposes of the 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 because 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 maiming soul The Criminal Law stands to the passion of revenge in much the same relation as marriage to sexual appetite. Retributive punishment tends to control recidivism.

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.

Since the 20th century, the issue of Capital Punishment has aroused heated value conflicts between those who advocate the death penalty as the supreme protection of society and those who see it as making the State a calculated violator of the sanctity of human life. Following are some of the arguments advanced for the retention of Capital Punishment.

1. Justice– Many people feel that killing convicted murderers will satisfy their need for justice and /or vengeance. They feel that certain crimes are so heinous that executing the criminal is the only reasonable response.
2. Deterrence– Many people feel that the death penalty will deter criminals from killing.
3. Retribution- The main argument is that retribution is the chief basis for capital Punishment, and murderers, traitors, and rapists deserve to die for committing terrible crimes. Only death will satisfy the public and keep it from taking the law into its own hands.
4. Protection– It protects society from dangerous and ravaging criminals who would otherwise prey upon people. 
5. Value of Human Life– It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life.
6. Social Solidarity– Execution unifies society against crime. It also avoids private vengeance.
7. Safety– Once a convicted murderer is executed, there is no chance that he will break out of jail and kill or injure someone.
8. Cost- Capital Punishment is less expensive than keeping a man in prison for life.

According to some of the receptionists who are moderate in their thinking and have a reasonable or reconciling approach, it is appropriate to retain the death sentence and grant discretion to courts to provide for hard cases. It is felt that the trend is clearly towards the lesser sentence and a review of judicial decisions reveals that the death penalty is being awarded only in cases where there is not the slightest trace of any extenuating circumstances. The author has selected some cases in order to meet their point. In a number of cases, the death penalty is awarded by the Sessions Court and confirmed by the High Court, and the accused are acquitted. In such cases, the state has gone in appeal to the Supreme Court.

NEED FOR DEATH PENALTY IN INDIA

Crime, a universal phenomenon, is omnipotent and omnipresent and the criminal behavior of man is influenced by geographical, social, economic, psychological traits. For the gradual reduction of this criminal behavior affected by the abovementioned factors, the state had devised and introduced the sentencing system.

Arguments for retention of Capital Punishment-

1. On an ideological plane the capital punishment is considered to be a better deterrent than life imprisonment or other similar punishment. Probably it is the only instrument to permanently incapacitate the offender and secure the respect of law.
2. Since the principle is that the one who has caused suffering must suffer in equal measure to do justice, nothing but death penalty is desirable.
3. If life imprisonment is handed down instead of death penalty, there is every chance that by virtue of the pardoning power the offender may escape conviction leading to injustice.
4. Death Penalty is safer way for preventing the relatives of the victims from being lynched at the hands of the perpetrator.
5. Death Penalty would save the state from great economic burden as a life convict has to be fed and clothed during the term of the sentence. Where has death penalty will see the end of the convict once and for all.
6. Since society will have to leave in the fear of criminals it is always better to put an end to them.

In the light of the foregoing analysis, the need for the death penalty is felt in the minds of all the right-thinking citizens. Especially in the Indian context where the crime rate is on the rise and the vulnerable groups like women, children, and old are being targeted resulting in heinous crimes on them, the death penalty must be retained in order to maintain law and order in the society. Not only that but there is an urgent need to make the death sentence applicable in respect of many more crimes like rape, dacoity, etc. It was only expected that the government would take necessary measures in this regard.

CONCLUSION

It may be reiterated that capital punishment is undoubtedly against the notions of modern rehabilitative processes of treating offenders. It does not offer an opportunity to the offender to reform himself. That apart on account of its irreversible nature, many innocent persons may suffer irredeemable harm if they are wrongly hanged. As a matter, of policy, the act of taking another’s life should never be justified by the State except in extreme cases of dire necessity and self-preservation in war. Therefore, it may be concluded that though capital punishment is devoid of any practical utility yet its retention in the penal law seems expedient keeping in view the present circumstances when the incidence of crime is on a constant increase.

MIES R M Law College is one of the “A” grade private law colleges of West Bengal, situated at Sonarpur, South Kolkata introduce a write up on A Rationale of Death Penalty which is a very informative article written by on the top faculty Ms. Anupa Dey of this Topmost law college at West Bengal.     MIES R M Law College is one of the best private law colleges of West Bengal, situated at Sonarpur, South Kolkata