CONSTITUTIONAL VALIDITY OF DEATH PENALTY
Author: Samhitha Sharath Reddy
Co-Author: P. Vasishtan*
ISSN: 2581-8465
ABSTRACT
All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. Most systems of religion or ethics teach that bad actions lead to bad consequences. There are two main reasons for inflicting punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. The death penalty also rests on the same proposition as other punishments. Because of its drastic and irrevocable nature, it is even more open to debate over its fairness, appropriateness, and effectiveness than other punishments. The proponents of the death penalty believe that it is an effective way to stop crime. They focus on the death penalty as a deterrent or something that will stop or lessen crime. They believe that the death penalty brings the most justice to the victim of a heinous crime.
The death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crimes, as well as the mode of punishment, correlate to the culture and form of civilization from which they emerge. At this point in time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them. Another issue is regarding the extent of judicial discretion.
This paper will analyse the Constitutional Validity of the death penalty across Jurisdictions, the Abolitionist and Retentionist debate on Capital Punishment and the position in India in the present scenario context.
INTRODUCTION
According to The Oxford Dictionary, Capital Punishment is the “legally authorized killing of someone as punishment for a crime”.[1] Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder, etc. wherein the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment. 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.[2]
There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the fundamental reasons for the punishment of any kind. Since death is considered the harshest punishment available under the law, it seems logical that it must also be the most effective deterrent to crime. The English barrister Sir James Stephen remarked, “No other punishment deters men so effectually from committing crimes as the punishment of death.” “In any secondary punishment, however terrible, there is hope; but death is death; its terror cannot be described more forcibly.”[3]
The federal prisons now have custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three more murderers on three separate occasions- both prison guards and inmates. There is no further punishment that he can receive. In effect, he has a license to murder.[4]
The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of the ancient society imposed it only for the most heinous crimes and some imposed it for minor offences. For example, under Rome’s law in the 5th century B.C., death was the penalty for publishing insulting songs and disturbing the peace of the city at night.[5] Under Greece’s Draconian Legal Code in the 7th century B.C., death was the punishment for every crime. Beginning in ancient times the executions were frequently carried out in public. Public executions provided benefits for everyone. For the surviving victims of the condemned criminals, the execution provided the grim satisfaction of witnessing the final punishment of those who had wronged them. For the authorities, executions served as graphic demonstrations of their determination to protect public safety. Public executions even helped the authorities to do their jobs serving as grisly object lessons for potential wrongdoers.
The extent or the nature of the punishment depended as much on the social standing of the criminal as on the nature of the crime. The commoners were executed much more often than nobles. Minorities and foreigners were treated more harshly than members of the dominant group. The methods of execution were also varied. The common modes of inflicting the death sentence on the offender were drowning, burning, boiling, beheading, hurling the offender from rock, stoning, strangling, impelling, amputating, shooting by gun, or starving him to death. Hanging and beheading were the most common methods of execution in Europe and Great Britain. At present, the common modes of execution of the death sentence are asphyxiation, electrocution, guillotine, shooting, and hanging. The method of execution by electrocution was first used at Auburn State Prison, New York on 1890 and is now being extensively used in USA, UK, USSR, Japan and other European countries. The use of Guillotine for execution was introduced in France in 1792. The method of hanging the condemned prisoner till death has been commonly in use in almost all the countries for ages. In India public hanging is now held to be unconstitutional.[6]
CAPITAL PUNISHMENTS IN VARIOUS COUNTRIES
Now let us have a look at what other countries in the world, have to offer when it comes to the death penalty and some of their famous cases in history, recorded.
CAPITAL PUNISHMENTS IN AMERICA:
In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal government the right to set their own criminal penalties. The very first congress of the United States passed federal laws making the death penalty for rape and murder and other crimes. Although the death penalty was widely accepted in the early United States, its approval was not universal. Some of the people viz. Cesare Beccaria, Thomas Jefferson, Dr. Benjamin Rush expressed serious doubts and objections and advocated that capital punishment might be abolished. And in 1917, the state of Missouri and the territory of Puerto Rico both abolished the death penalty. The opposition to the death penalty gathered strength again in the mid-twentieth century after the controversial executions of Willie Francis, Burton Abbot, Caryl Chessman, and Barbara Graham. Once again, several states either abolished or restricted the use of the death penalty.
In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga[7], the U.S. Supreme Court declared that the death penalty, as it was then carried out, was ‘cruel and unusual’ punishment, therefore it was constitutional. Four years later, the Court ruled in several cases. In Gregg v. Georgia[8], the Supreme Court said that the death penalties imposed in some states under new laws were constitutional. But the murder is a capital offence in all 38 of the U.S. states that have the death penalty.
CAPITAL PUNISHMENT IN BRITAIN:
Hanging was the traditional form of capital punishment in England. However, it was not the only one. In England, beheading was normally reserved for the highborn and it was last used in 1747. Hanging was the most common method of execution in England from Saxon times until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were hanged on the same day in 1964. In Britain, the death penalty for murder was abolished for an experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held on the restoration of capital punishment in 1979 and 1994 but both times it was rejected.[9]
Capital punishment in the People’s Republic of China is usually administered to offenders of serious and violent crimes, such as aggravated murder, but China retains in law, a number of non-violent capital offenses such as drug trafficking. The People’s Republic of China executes the highest number of people annually, though other countries such as Iran or Singapore have higher per-capita execution rates. Watchdog groups believe that actual execution numbers greatly exceed officially recorded executions: in 2009, the Dui Hua Foundation estimated that 5000 people were executed in china – far more than all other nations combined.
In the year 1975 and 1991, about 40 people were executed. The year 1995-2004 when there were no executions. Anti-the death penalty activists dispute those figures, claiming much higher numbers on Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14-year-old schoolgirl in Calcutta. This was the country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death Row. It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the president.[10]
The execution of the death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of the death sentence in India. Once the death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death.
Section 354(5) of Code of Criminal Procedure says, “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” It is also provided under The Air Force Act, 1950, The Army Act, 1950, and The Navy Act, 1952 that the execution has to be carried out either by hanging by next till death or by being shot to death.
CAPITAL PUNISHMENT UNDER VARIOUS LEGISLATIONS IN INDIA
Capital punishment is prescribed as one of the punishments in various provisions of
- The Indian Penal Code 1860,
- The Arms Act 1959,
- The Narcotic Drugs and Psychotropic Substances Act 1985,
- The Scheduled Case and Scheduled Tribes (Prevention of Atrocities) Act,
- The Commission of Sati (Prevention) Act, 1987,
- The Air Force Act, 1950,
- The Army Act 1950 and
- The Navy Act, 1952
In the prevention of Terrorism Act, 2002 also, there was a provision for the death penalty for causing death to persons using bombs, dynamite or other explosive substances in order to threaten the unity and integrity of India or to strike terror in the people. It is also interesting to note that under the Arms Act, NDPS Act and the Scheduled Caste and Scheduled Tribes Act, Capital Punishment is the only punishment for the offence covered by those sections, thus leaving no room for the judiciary to exercise its discretion. It is doubtful whether these provisions can stand the test of the constitutional validity in the light of the decision in Mithu v. State of Punjab.[11]
It is Because in this case Section 303 of the Indian Penal Code was struck down as violative of Article 21[12] and 14[13] of the Constitution of India, as the offence under the section, was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus resulted in an unfair, unjust and unreasonable procedure depriving a person of his life.
ABOLITION OF CAPITAL PUNISHMENT
There are four groups of countries regarding the abolition or retention of capital punishment. These are:[14]
ABOLITIONIST FOR ALL CRIMES
Countries whose laws do not provide for the death penalty for any crime like New Zealand, Germany, Greece, etc.
ABOLITIONIST FOR ORDINARY CRIMES ONLY
Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances: Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia, and Peru.
Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established the practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty like Algeria, Laos, the Russian Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia, etc.
Countries and territories that retain the death penalty for ordinary crimes: Afghanistan, India, Japan, China, Singapore, Syria, Taiwan, Thailand, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe, etc.
THE DEBATE OVER THE ABOLITION AND RETENTION
“An eye for an eye will make the whole world blind.”
— Mohandas Karamchand Gandhi
The United Nations High Commissioner for Human Rights called a meeting in early July to commemorate the fifth anniversary of the General Assembly’s vote in favour of a moratorium on the death penalty. The Secretary-General Ban Ki-Moon delivered some remarks[15] in which he delivered some remarks in which he reminded listeners that more than 150 countries have either abolished capital punishment or restricted its application. Some 32 states retain the death penalty in case of drug-related crimes and last year only 20 countries actually conducted executions. In the United States, 17 states have done away with the death penalty.
The right to life is the most fundamental of all human rights. It lies at the heart of international human rights law. The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. Where the death penalty persists conditions for those awaiting execution are often horrifying, leading to aggravated suffering. Information concerning the application of the death penalty, including secret trials and executions, is often cloaked in secrecy. And it is beyond dispute that innocent people are still put to death.
The United Nations system has long advocated the abolition of the death penalty. Yet the death penalty is still used for a wide range of crimes that do not meet that threshold.
The top considered arguments are listed below for Retention and Abolition. These arguments have been briefly written based on some landmark cases in India that challenged the constitutional validity of the death penalty in India.
- Capital punishment acts as a deterrent. If the death sentence is removed, the feat that comes in the mind of people committing murders will be removed. “Do we want more of murders in our country or do we want less of them?” All sentences are awarded for security and protection of society, so that every individual may live in peace. Capital punishment is needed to ensure this security.[16]
- Elimination of the Criminals. When public peace is endangered by certain particularly dangerous forms of crime, the death penalty is the only means of eliminating the offender.[17]
- Possibility of repeated murders. The society must be protected from the risk of a second offence by a criminal who is not executed and who may be released, after release may commit murder again.[18]
- Condition in India. In countries where capital punishment has been abolished, the figure of homicide is very low. Four in a million or even less than that.[19]
- Public Opinion. Public opinion is substantially in favour of capital punishment, and it would be unwise to abolish capital punishment contrary to the wishes of the majority of the citizens.
- Prison Administration. Keeping murderers alive in the prison greatly complicates the word of prison administration.[20] If all the convicted murderers were imprisoned, the safety of the prison staff and the general public from the dangerous prisoners would be at risk.[21]
- Saving of Funds. The money of the citizens should not be spent on maintaining people who cause great harm.[22] The taxpayers should not be called upon to pay for the maintenance of anti-social criminals for an indefinite or for a very long period of time.[23]
- Proportionate to Crime. The punishment for a crime should bear a just proportion to the crime. Therefore, capital punishment is the only fit punishment for those who have deliberately violated the sanctity of human life.[24]
- More Humane. Capital punishment in a painless and more humane form is less cruel than imprisonment for life.
- No Miscarriage of Justice. If there is a miscarriage of justice in one or two cases, the higher courts can be approached. The whole machinery of the Government would be there to protect the life of a person who is really innocent.
Capital punishment should be abolished because it is a legalized, revengeful, and cruel destruction of God’s most wonderful creation, the human being.
- Immoral. Capital punishment is morally indefensible. Society has no right to take the life of any person. It is morally wrong for the state in the name of the law to take the life deliberately.[25] In eliminating the criminals, it is stated that the ‘State does not erase the crime, but repeats it’.[26]
- Inhumane. Capital punishment is essentially inhumane. The death penalty is a form of cruelty and inhumanity unworthy of a humane civilization; even the most efficient methods of execution do not result in instantaneous and painless death.[27] Humanity demands that capital punishment comes to an end.[28]
- Non-violence. The Indian ideology is based on non-violence. Indian tradition is based on the reformation of the mind and the spirit. Where it was the opinion that only God could take away life given by him. Therefore, a murderer should be sent to a penitentiary and there given every chance of reforming himself.
- Irrevocable. Capital punishment is irrevocable. If an innocent person is sentenced to death and executed, the greatest injustice results.[29] When as a result of an erroneous conviction, a man is sent to prison, he can be compensated. But death admits of no compensation.[30]
- Unjust. The sentence of death injures the family of the offenders and thus, imposes suffering on persons who have done nothing to deserve the suffering.
- Unequal Application. The death penalty is applied unequally. Some persons who have not sufficient financial means to defend themselves or are morally unable to do so, suffer.[31] The penalty, therefore, which should be the expression of absolute justice, often leads in practice to injustices against the individuals.
- An Eye for an Eye. It will suffice to note that thesystem of individual revengeis no longer recognized. The punishment should not be given to any offender having this principle in the mind. The Court should adopt the retributive approach in these cases.
Sometimes there may be a mistaken view of the law. Thus, it is argued that a person was sentenced to death in one Madras Full Bench case, on a confession made by him, to an investigating officer. Ten years later, the Privy Council, in a similar case, held that this case was wrongly decided and that the confessions ought not to have been admitted in evidence.[32]
THE CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT
Article 21 of The Constitution of India provides protection of life and personal liberty to every people. And the deprivation of life of anyone is unconstitutional under Article 21. It is also said that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”, it means, if there is a procedure then the state can deprive a person of his life.
In many countries, there has been a demand for the abolition of the death penalty and in some, this demand has been accepted and the death penalty has been abolished. In India, too there are many social workers including lawyers and judges who have voiced this demand. Krishna Iyer J. very recently while addressing a Human Rights organization strongly expressed himself in favour of the abolition of the death penalty.
Justice A.K. Ganguly of the Supreme Court has termed the award of the death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system. The doctrine of the crime falling in the ‘rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges. He cautioned that before giving the death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances.[33]
Through Article 21, the State is given the power to take away the life of a person through a procedure established by law. This means that though there is a procedure established by law, the State can deprive a person of his life. Through judicial pronouncements, this procedure is interpreted to mean, a fair, just, and reasonable one. Though the constitutional validity of the death punishment was challenged as violative of Article 19 and 21 of the Constitution of India, because it didn’t provide any procedure to the Court upheld the validity of the death sentence. Since the procedure by which life is taken is fair, just, and reasonable. The judges are given ample power to exercise their discretion to award the death penalty as against imprisonment for life.
The question of the constitutional validity of the death penalty has been raised before the Supreme Court of India more than once. In the case of Jagmohan Singh v. State of Uttar Pradesh,[34] the constitutional validity of the death penalty was upheld by the Supreme Court by a unanimous decision of the five Judges comprising the Bench.
In the case of Rajendra Prasad v. State of Uttar Pradesh,[35] Krishna J. Iyer said that the death penalty directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has been provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further said that to impose the death penalty, the two things must be required.
- The special reasons should be recorded for imposing the death penalty in a case.
- The death penalty must be imposed only in extraordinary circumstances.
The question was again considered by a five Judge Bench in case of Bachan Singh v. State of Punjab,[36] particularly in view of certain observations of Krishna Iyer. In Bachan Singh case, judges considered the social, ethical, and even the spiritual aspect of the death penalty while upholding the constitutional validity thereof.
But by a majority of four to one, Bhagwati J in Bachan Singh case recorded a dissenting note. Bhagwati J, in his dissenting judgment has given a number of reasons for holding that the death penalty is not only unconstitutional being violative of articles 14 and 21 but also undesirable from several points of view. One of the reasons given by him is that the death penalty is irrevocable because the execution of the sentence of death in such a case makes miscarriage of justice irrevocable.
He referred to the Book The death penalty in America by Hugo A. Bedau which catalogs 74 cases in which it has been responsibly charged and in most of them proved beyond doubt that persons were wrongly convicted and executed though innocent. It is no doubt true that conviction and execution of an innocent man for murder shock the human conscience and it is also true that human judgment is not infallible but I may respectfully point out that the criminal law in our country is heavily loaded in favour of the accused and an erroneous conviction is not at all possible. In England and America, the trial is by jury and it may with utmost honesty more readily records an erroneous verdict of guilty than a judge. A jury is very much influenced by the consideration that the interests of the society demand that no offender who perpetrates a shocking crime should escape the clutches of law and the punishment he deserves. A judge’s approach in our country is more cautious. He is guided by the principle that a hundred guilty persons may escape but not one innocent person should be convicted.
It is on the basis of this principle that in India benefit of reasonable doubt is given to the accused even in cases of murder. A defense counsel uses all his skills and ingenuity to create a doubt in the mind of the judge and he gets repeated opportunities to do so. If he fails in the trial court, he makes a second attempt in the High Court and a third one before the Supreme Court. Thus, the possibility of an erroneous conviction is wholly excluded.
Apart from this the power of pardon, remission, and commutation of sentence vested in the Governor and the President furnish another safeguard against a judicial error in the matter of punishment. The whole matter is examined with great care and caution while exercising the said power, keeping in view the interests of the individual on the one hand, and interests of the society on the other. The President is the elected head of the State and is expected to give effect to the will of the people. Thus, a convict cannot be executed unless the extreme penalty in a particular case is not only considered proper in a judicial verdict but is also in consonance with the wishes of the people in general. I need not refer to other aspects of the matter which have been dealt with at length by Sarkaria J, in his elaborate majority judgment but I would like to stress one aspect of the matter. I fail to see why too much importance should be attached to the life of an individual who has been found guilty of a heinous offence when the interests of the society demand that the death penalty should be awarded to him.
Often in the event of a riot, the police are required to open fire in the interests of society to disperse an unruly mob indulging in arson and violence to restore order if other methods fail. In such a firing even, innocent persons are killed. Shall we say that the police should never resort to firing to quell a riot or to disperse a riotous mob merely because there is a risk of innocent persons being killed? No one will ever say that. If so, why should we have qualms of conscience in awarding the death penalty to an offender in extreme cases where the interest of the society demands it? The reformative aspect of justice is no doubt very important. But we do come across criminals who are beyond redemption.
Even Krishna Iyer, who strongly advocated the social and human aspect of law conceded in Rajendra Prasad’s case that the death penalty may be legally permissible when he can never be reformed.
Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of the Code of Criminal Procedure, the Court has to give special reasons for awarding the death penalty. Section 235(2) provides a hearing after conviction on the question of sentence. “Hanging of a murderer gives no pleasure to a judge. He merely discharges a painful duty while awarding the death sentence in the interests of the society”. We can, therefore, repose trust in the judges that they would discharge this onerous function with scrupulous care and human concern bearing in mind that imprisonment for life is the normal penalty for murder while the death penalty is to be awarded only where the offender appears to be extremely depraved and a potential menace to society. So far as the constitutional aspect is concerned very cogent reasons are given in the majority judgment for upholding the constitutional validity of the death penalty
To sum up, there can be no doubt about the constitutionality of the death penalty in our country. As regards its propriety in a particular case the matter has to be left to the discretion of the judge who has to bear in mind that normally imprisonment for life is the appropriate sentence for murder under section 302 IPC, particularly in the case of a woman. In the case of adult males, the death sentence may be awarded in cases where the murder and the entire circumstance of the case show that he is a potential menace to society. The question of the propriety of the death penalty in a particular case has to be judged not merely from the point of view of the accused; the interests of the community as a whole must also be taken into consideration.
Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v. State of Punjab[37] held that the death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat[38] and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.
SECTION 303 OF INDIAN PENAL CODE
In the case of Mithu v. State of Punjab,[39] it was contended that mandatory sentence of death for a murder committed by life-convicts under section 303 of IPC is violative of rights guaranteed under Article 14 and 21. Therefore, section 303 of IPC is unconstitutional not only for the reason that it is unreasonable and arbitrary but also because it authorizes deprivation of life by an unjust and unfair procedure. Section 303 of IPC provides punishment for murder by life convict-Whoever, being under sentence of imprisonment for life commits murder, shall be punished with death.” In this case, the Supreme Court struck down section 303 of Penal Code as unconstitutional and declare it void.
DELAY IN EXECUTION OF THE DEATH SENTENCE
Delay in the execution of the death sentence is a factor that may be taken into consideration for commuting the sentence of death to life imprisonment. In the case of Triveniben v. State of Gujarat,[40] the Supreme Court held that “….undue long delay in execution of the death sentence will entitle the condemned person to approach this court will under Article 32, but this court will only examine the nature of delay caused and circumstances ensued after the sentence was finally confirmed by the judicial process…. No fixed period of delay could be held to make the sentence of death in executable. If the Supreme Court finds the delay to be undue in the foregoing sense, the court would quash the sentence of death and substitute for it the sentence of imprisonment of life to that accused. The procedure established by law in Article 21 means a procedure which is just, fair and reasonable. Hence, any circumstance which renders the sentence harsh, unjust, or unfair, offends Article 21.[41] An undue long delay in execution of the death sentence after its confirmation (ss 413-415, CrPC), for which the accused himself is not responsible, renders the sentence harsh and unjust as it causes additional torture and inhuman treatment.[42]
The question arose before the Supreme Court in Deena v. Union of India,[43] whether the execution of the death penalty by hanging by rope is constitutional or not? Supreme Court held that the method prescribed by s. 354(5), Cr. P.C. for executing the death sentence does not violate the provision contained in Article 21 of the Constitution. The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of the scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence.
Another question arose before the Supreme Court in Lachma Devi v. State of Rajasthan[44] whether for the execution of the death penalty public hanging is constitutional or not? For answering this question, the Supreme Court adopted a liberal view and held that public hanging is not prescribed in the prison rules therefore it is unconstitutional.
THE PRINCIPLE OF RAREST OF RARE CASES
Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be considered as fit ones for awarding capital punishment. Thus, capital punishment is awarded only in rarest of rare cases. The determination of this is very difficult. There are various decisions in which the determination of rarest of the rare was in question. The Court could not follow any uniform guideline to reach a conclusion, and the subjectivity of the judges also play a vital role in this determination. The death sentence should be imposed in the rarest of rare cases. The Supreme Court in Machhi Singh v. State of Punjab[45] (1983) The Apex Court laid down a few principles which were to be kept in mind while deciding the question of the sentence:
- Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for the death sentence?
- Are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according to maximum weightage to the mitigating circumstances which speak in favour of the offenders?
RECENT RAREST OF RARE CASES OF CAPITAL PUNISHMENT
The below-mentioned cases are some of the recent cases regarding the death penalty that were also considered as rarest of rare ones.
- [46]:
The appellant, Dhananjoy Chatterjee was found guilty of offences punishable under Sections 376, 302, and 380 of the Indian Penal Code by judgment and was awarded the death sentence by the session judge, confirmed by the High Court. A special leave petition was filed by the appellant. Leave was granted but the appeal was dismissed by the Supreme Court.
- [47] :
A young child of 9 years was sacrificed before Goddess Kali by the appellant for his own prosperity is what the prosecution alleges. The Supreme Court awarded the death penalty to the accused.
- [48]:
Stressing that leniency in punishing grave crimes would have serious consequences the supreme court has awarded the death penalty to a man for the rape and murder of a six-year-old girl.
- [49]:
Mumbai Special Court convicted Ajmal Kasab for murder, waging war on India, possessing explosives and other charges, and later, sentenced him to death. He was found guilty of 80 offences and was held accountable for killing 166 people mercilessly and injuring thousands of people while bringing loss to the state and private properties of over 1000 crores.
The death penalty has faced much opposition as of late. Can the death penalty possibly be a morally acceptable punishment? A popular quote across the internet by Anonymous says, “We kill people to show people that killing people is wrong.” The slogan is short, simple, and to the point. But is there really such irony in capital punishment as the slogan implies?
First of all, the slogan misses an important point. The death penalty does not punish people for killing, but for murder. Killing is justified when it is done in self-defense. Killing means to cause death. Murder, on the other hand, is defined as, “the unlawful and malicious or premeditated killing of one human being by another” (for the less observant, this definition cannot be applied to the death penalty, because the death penalty is lawful, non-malicious, and is not carried out by an individual but by the government). “Kill,” “murder,” and “execute” are not interchangeable terms. The death penalty opponents would like us to believe otherwise. Just because two actions result in the same end does not make them morally equivalent. If it were so, legal incarceration would be equated with kidnapping, lovemaking with rape, self-defense with battery, etc. Therefore, the slogan is better stated, “We execute people to show people that murder is wrong.”
Morality is defined as “the principles of right and wrong.” As moral creatures, humans deserve praise for good deeds and punishment for bad ones. Punishment may range from a slap on the wrist to death, but the punishment must fit the crime. This is known as lex talionis, or in common jargon, “an eye for an eye.” Certainly, this is the case if we take the lex talion literally, and the criminals deserve those punishments, but we needn’t take it literally. The ancient Jews did not.[50]They allowed for monetary compensation for physical or property damage.
Why then, if it is not morally okay to rape rapists, is it acceptable to execute murderers? The answer is simple. There is no redeeming value to carrying out the former punishment. Raping the rapist will only cause someone else to degrade themselves by doing it. It will not prevent the rapist from raping again. Executing murderers, however, prevents them from committing their crime again, and thus protects innocent victims. The good, therefore, outweighs the bad, and the executioner is morally justified in taking the murderer’s life. On the other hand, if the abolitionist argues that killing is always wrong, then he must also concede that killing in self-defense is unacceptable and should be punished. Few, if any, however, are willing to do so. The abolitionist may choose to argue that the state should never kill. But consider also the scenario of protecting someone else’s life. Are police officers (the state) justified in killing attempted murderers to save a victim’s life? If the answer to this question is yes, then the question is no longer if the state is justified in taking the life of criminals but when.
Morally, it is wrong to simply incarcerate someone for murder. A sentence of life in an air-conditioned, cable-equipped prison where a person gets free meals three times a day, personal recreation time, and regular visits with friends and family is a slap in the face of morality. This betrays an ignorance, however, of current trends. Eventually, criminal rights activists will see to it that all prisons are nice places to go. This is so, simply because a loss of freedom does not and cannot compare to a loss of life. If the punishment for theft is imprisonment, then the punishment for murder must be exponentially more severe, because human life is infinitely more valuable than any material item.
Killing someone for killing other people is both hypocritical and unjust. Maybe seeing the person who killed someone you know and love would give you peace, but it won’t bring them back. Not to mention, maybe the prosecuted has a family as well. Does anyone think about them? Offer comfort and condolences? No. They throw them from society, saying they were close to a murderer and are just as bad. Plus, crimes are acts of revenge. Revenge isn’t without reason. And no one ever asks what that reason is before it’s too late. Therefore, the constitutional validity of the death penalty should not be constitutional and should be taken down as soon as possible from the Constitution of India.
In view of the above discussions, we can see that India’s thinking on capital punishment is still quite muddled up. It is not just a debate of legality and constitutionality of the death penalty but also the moral and social aspects that are related to this controversial topic that has led to extensive confusion in this respect. Keeping away the question of law, the question of the death penalty has to take into consideration factors such as public sentiments on one hand and tussle with the moral issue of the “eye for an eye” principle on the other. Also, it is known to us that error in making judgments is only humane and sometimes giving someone a second chance is like giving them a bullet again because they missed you the first time.
In the end I would like to end with a suitable quote by Bernard Shaw.
“Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society…..Murder and capital punishment are not opposites that cancel one another but similar that breed their kind.”
Maybe there is no real right or wrong answer to the issue of capital punishment, or maybe if there is the society in our country needs to develop to a level where the answer becomes clear to us. Until then what is required is a careful examination of facts and evidence by the judiciary in every such sensitive case to avoid any possibility of error. Also, India lacks an authentic statistical database of the number of convicts being sentenced to death and executed in relation to various other factors which would give us a clearer picture of what needs to be done ahead.
* V Year, B.A., LL.B. (Hons.), Tamil Nadu National Law University, Tiruchirappalli.
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[3] Leonard A Stevens, Death Penalty: The Case of Life vs. Death in the United States. Pp.74
[4] Bring back death Penalty, THE HINDU, Chennai Edition, dated 12th October, 2005
[5] George S. Blumer, Capital Punishment: A Reference Book, pp.552
[6] Lachuma Devi v. State of Rajastan, (1986) Cri L.J. 364
[7] 408 US 238 (1982)
[8] 428 US 153 (1976)
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[11] AIR 1983 SC 47
[12] Right to Life and Dignity
[13] Right to Equality before Law.
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[16] U.N. Publication, Rex. K. Singer, Death Validity? Pp 57
[17] Ceylon Report, summary of arguments, pp 223 under Prison administration.
[18] Supra note 14
[19] Id. At 93
[20] Id. At 99
[21] Supra note 17
[22] Supra note 18
[23] Id. At 97
[24] Law Commission of India, 35th Report Volume I-III (Capital Punishment) September 1967, Ministry of Law, Government of India.
[25] Supra note 19 pp. 105
[26] Id. At 109
[27] Id. At 103
[28] Supra note 22
[29] Id. At Volume III
[30] Id. At Volume II
[31] Id. At Volume II
[32] The Ongoing Rajiv Gandhi murder case.
[33] Athappa Goundan v. Emp. (AIR 1937 Mad. 618, 629)
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[36] AIR 1973 SC 947
[37] AIR 1980 SC 989
[38] AIR 1980 SC 546
[39] AIR 1983 SC 465
[40] AIR 1989 SC 1335
[41] AIR 1983 SC 473
[42] Supra note 38
[43] Supra note 36
[44] AIR 1983 SC 1155
[45] AIR 1983 SC 947
[46] [2004] 9 SCC 759
[47] AIR 2004 SC 394
[48] Appeal (cri.) 256-257 of 2005
[49] CRIMINAL APPEAL NOS. 1899-1900 of 2011.
[50] Rodriguez, Angel Manuel. Eye for an Eye. Last accessed on 21-10-2016