*Published in I DLR (S) (2004), pp. 248-267. (Annual publication of Faculty of Law, University of Delhi)
“Every saint has a past, every sinner has a future.”
: V. R. Krishna Iyer, J.[1]
“… the humanistic approach should not obscure our sense of realities. When a man commits a crime against society by committing a diabolical, cold-blooded, pre-planned murder of one innocent person the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.”
: A. P. Sen, J.[2]
1. Introduction
Whether to retain or to abolish the sentence of capital punishment has been a universal subject of endless debate, countless studies, several researches and plenty of experiments but no conclusion has been reached yet which can socially, morally and legally be accepted. Almost all states have two groups –one who supports the retention of capital punishment and other who argues to abolish it. In India, the debate was revived when all the 26 defendants in the Rajiv Gandhi assassination case were sentenced to death. It also came up in the wake of rather reckless proposals on extending the death penalty to those dealing in spurious drugs and to those convicted for rape.[3] The execution of Dhananjay Chatterjee, a security guard of a housing society in West Bengal who firstly raped then murdered a school going girl of that housing society, had once again revived this debate all over India.[4] Recently, a city court of Kolkata handed out death penalty to Dubai based underworld don Aftab Ansari and six others for the attack outside the American Centre there that left five policemen dead.[5]
2. Punishment: Meaning and Objects
Punishment is the sanction imposed on a person for the infringement of the rules of society. It is primarily used as a method of protecting society by reducing the occurrence of criminal behaviour.[6] The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”[7]
A dispassionate analysis of criminological jurisprudence would reveal that capital punishment is justified only in extreme cases in which a high degree of culpability is involved causing grave danger to society.[8] Society has resorted to many different methods in executing criminals and other allegedly dangerous persons in the past e.g. drowning, stoning to death, burning at the stake and beheading etc. These methods, however, appear barbaric especially in comparison to the seemingly sanitized, quick, and painless procedure of death by lethal injections, the most commonly used method of execution in contemporary America.[9]
3. Capital Punishment in Modern World
For many years there has been a dignified movement on part of thousands of enlightened and humane individuals to eliminate the capital punishment. In England, the movement against capital punishment was carried on by ‘Romilly’ and some other reformers and in recent past by ‘Sydeny Silverman’ whose efforts led to the almost total abolition of capital punishment under the Murder (Abolition of Death Penalty) Act, 1965.[10]
In USA, the trend for abolition of capital punishment commenced in the 19th century when the state of Michigan abolished it, except for treason, in 1847. Since then, many more states have followed the suit.[11] In 1972, the US Supreme Court in a well-known case Furmen v. Georgia[12] declared that the under then existing laws, “the imposition and carrying out of the death penalty …constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments”.
In 1976, the Supreme Court moved away from abolition, holding in Gregg v. Georgia[13] that “the punishment of death does not invariably violate the constitution”. The court ruled that the now death penalty statutes contained “objectives standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death”. Subsequently, 38 state legislatures and the Federal Government have enacted death penalty statues patterned after those the court upheld in Gregg’s case.
4. Capital Punishment in India
A. Pre-independence
The ancient law of crimes in India provided capital punishment for quite a good number of offences. The great Hindu law-giver ‘Manu’ said that ‘…in order to refrain people from sinful murders, death penalty was necessary and in absence of this mode of punishment, state of anarchy will prevail and people would devour each other as the fish do in the water, the stronger eating up the weaker.”[14]
During the reign of Mughal emperors, barbaric methods of putting an offender to death were used. It is interesting to note that the Sikh Emperor Maharaja Ranjit Singh never hanged anyone during his reign. The British, however, used death by hanging as the only legalized mode of inflicting capital punishment.
B. Post-independence
After independence, a bill was introduced in the Lok-Sabha in 1956, to abolish the capital punishment which was rejected by the house. Efforts made in the Rajya-Sabha in 1958 and in 1962 were also fruitless.
The law commission, in its 35th report (1967) observed:
“Having regard to the conditions in India, to the variety of the social upbringings of its people, to the disparity in the level of morality and education in the country, to the vastness of its area and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the abolition of capital punishment.”
The last time the Lok Sabha specifically discussed the question was in 1983. Then Prime Minister Indira Gandhi had stated that she favoured abolition of death penalty. But her minister of state for home affairs, NR Laskar announced that the government was not considering any concrete proposal to abolish it.[15]
I. Capital Punishment and Legislation
In India, penal provisions have been made in Indian Penal Code, 1860, according to which capital punishment is given in only eight types of offences, which can be classified into three broad categories:
i. Crimes against persons:
(a) murder;[16]
(b) murder by life-convict;[17]
(c) abatement of suicide of child or insane person;[18]
(d) attempt to murder by a life-convict causing hurt;[19]
(e) dacoity with murder.[20]
ii. Giving or fabricating false evidence with intent to procure conviction of capital offence.[21]
iii. Crimes against Government of India:
(a) waging, or attempting to wage war against state of India;[22]
(b) abetment of mutiny.[23]
In addition to Indian Penal Code, 1860 other laws like Narcotic drugs and Psychotropic Substances Act, 1985, Explosive Substances Act, 1908, Prevention of Terrorism Act, 2002, etc. also have the capital punishment that can be awarded as the maximum punishment. The Air Force Act, 1957, The Army Act, 1950 and The Navy Act, 1957 provide for imposition of the capital punishment, either by hanging by neck till death or being shot to death.
Besides this, the Code of Criminal Procedure, 1973 provides some important provisions regarding the procedure of awarding the capital punishment. The Code of Criminal Procedure, before 1973, obliged the court to pass capital punishment for murder as a general proposition and the alternative sentence could be awarded only in exceptional cases for which the court was then required to advance special reasons. After 1973, there was a complete reversal to this approach. Thereafter, life-imprisonment was made the normal sentence for murder and death penalty was allowed to be passed only in exceptionally cases.[24] The criminal courts were required to state special reasons for choosing the latter.[25]
Section 235(2) of Code of Criminal Procedure, 1973, requires that if the accused is convicted the judge shall, unless he proceed in accordance with section 360, hear the accused on the question of sentence, according to law. Thus by virtue of section 235(2) conviction and sentence cannot be passed on the same day.[26]
II. Capital Punishment and Judiciary
In the well-known case of State of Tamil Nadu v. Nalini & others,[27] DP Wadhwa, J. took the following view:
“… Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the cautions and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.
…A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.”
Thus, the above statements show the viewpoint of the Supreme Court of India, when faced with a question whether to award capital punishment or life-imprisonment.
III. Constitutional Validity of Capital Punishment
The constitutional validity of the capital punishment has been challenged from time to time. In Jagmohan Singh v. State of UP,[28] it was argued that the ‘right to live’ was the very basic right to the freedoms guaranteed under Article 19 of the Constitution. The Supreme Court rejected the contention and held that death penalty cannot be regarded unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the Constitution. It is noteworthy that Hon’ble Mr. Justice Krishna Iyer had in Rajendra Prasad v. State of UP[29] empathetically stressed that death penalty is violative of articles 14, 19 and 21 of the Constitution of India. However, he made it clear that where murder is deliberate, premeditated, cold-blooded and gruesome and there are no extenuating circumstances, the offender must be sentenced to death as a measure of social defense. A year later in the landmark case of Bachan Singh v. State of Punjab,[30] by a majority of 4 to 1 (Bhagwati, J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad’s case. 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 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order”.
Then again in Smt. Shashi Nayar v. Union of India,[31] a very desperate and futile attempt was made to get capital punishment declared unconstitutional. The Hon’ble Supreme Court, however, rejected all the arguments and held that ‘ death penalty has a deterrent effect and it does serve a social purpose’ and is hence within the framework of the Constitution.
IV. Cases calling for Capital Sentence: Rarest of Rare Cases
The Apex Court has laid down the following propositions to determine the cases in which the capital punishment can be justified[32]:
i. Death penalty need not be inflicted except in gravest cases of extreme culpability i.e. rarest of rare cases.
ii. Circumstances of the ‘criminal’ to be taken into account along with circumstances of the crime. Due regard must be paid to the crime and to the criminal while examining whether ‘special reasons’[33] exist for award of death penalty[34].
iii. Life-imprisonment is the rule and death penalty is an exception.
iv. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating factors have to be accorded full weightage, and a just balance must be struck between the two before the option is exercised.
v. It would be desirable to indicate the broad guidelines, without formulating rigid standards for categorizing cases in which death penalty could be imposed, because standardization would leave little room for ‘judicial discretion’.
The court concluded that the capital punishment might have some significant deterrent effect. It must be, however, noted that the minority view (Bhagwati, J.) was diametrically opposite- that death penalty does not serve any social purpose or advance any constitutional value and is totally arbitrary and unreasonable.
The Supreme Court in another landmark case of Machhi Singh v. State of Punjab[35] approved the principles laid down in Bachan Singh’s case and held that in order to apply these principles inter alia, the following questions may be asked and answered:
i. Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death penalty?
ii. Are the circumstances of the crime such, that there is no alternative but to impose death penalty even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?
The Supreme Court also laid down certain guidelines to ascertain the rarest of rare cases, and according to it the factors that are to be considered are as follows:
i. Manner of commission of murder;
ii. Motive for commission of murder;
iii. Anti-social or socially abhorrent nature of crime;
iv. Magnitude of crime;[36]
v. Personality of the victim of murder.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.
Since then, the Supreme Court has been following the principles laid down in above two cases. Recently, on April 8, 2005, a Division Bench of the Hon’ble Supreme Court in Holiram Bordoloi Vs. State of Assam[37] dismissed the appeal and upheld the Assam High Court’s decision of death penalty to the appellant. The Hon’ble Justice K.G. Balakrishnan analytically applied the above-discussed guidelines on the facts of the present case and observed:
“15. In the present case the aggravating circumstances against the accused are: (a) this is a case of cold-blooded murder; (b) the accused was leading the gang; (c) The victims did not provoke or contribute to the incident; (d) two victims were burnt to death by locking the house from outside; (e) one of the victims was a young boy, aged about 6 years, who, somehow, managed to come out of the burning house, but he was mercilessly thrown back to the fire by the appellant; (f) the dragging of Nagarmoi Bordoloi by the appellant Holiram to his house and then cutting him into pieces in broad daylight in the presence of bystanders; (g) the entire incident took place in the broad daylight and the crime was committed in the most barbaric manner to deter others from challenging the supremacy of the appellant in the village; (h) the entire incident was pre-planned by the accused-appellant Holiram.
16. On the other hand, neither the perusal of the evidence on record nor the statement under Section 313 Criminal Procedure Code, provided for any mitigating circumstance in favour of the appellant. It is nowhere claimed that the deceased had provoked the accused persons or there was any strong motive for the commission of the heinous act.
….
18. … There was no spark of any kindness or compassion and his mind was brutal and the entire incident would have certainly shocked the collective conscience of the community. We are unable to find any mitigating circumstance to refrain from imposing the death penalty on the appellant.
In almost every case, the Apex Court is requested to lay down standards and norms restricting the area of imposition of death penalty, but nothing could be done in this regard for apparently convincing reasons, as advanced by the Hon’ble Court in Mohd. Chaman v. State (NCT of Delhi)[38]:
“Such standardization is well-nigh impossible. Firstly, degree of culpability cannot be measured in each case; secondly, criminal cases cannot be categorized, there being infinite, unpredictable and unforeseeable variations; thirdly, on such categorization, the sentencing process will cease to be judicial; and fourthly, such standardization or sentencing discretion is a policy-matter belonging to the legislature, beyond the court’s function. Only broad guidelines consistent with the policy indicated by the legislature in section 354(3), can be laid down.”
In State of Tamil Nadu v. Nalini & others,[39] DP Wadhwa, J. observed:
“…we cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.”
In Triveniben v. State of Gujarat,[40] a Constitution Bench of 5 judges per majority observed:
“…the circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situations in society and the possibilities in which the offence could be committed and in this context, in ultimate analysis it is not doubted that the legislature was right in leaving it to the judicial decision as to what should be the sentence in particular circumstances of the case…”
Though it is desirable to set crystal clear parameters, it is submitted that while deciding the paramount issue- the very existence of a person, a hint of human discretion may produce better results for all the parties than insensitive mathematical formulas. It is also humbly submitted that if it could be done then there should, logically, be neither any need nor any place for Articles 72 and 161 of the Constitution of India.[41]
5. Arguments in Favour of Abolition of Capital Punishment
Each year, since 1976, three more countries a year have added their names to the list of countries that have abolished the death penalty. A majority of nations have ended capital punishment in law or practice.[42] In India, the provisions for the death penalty have been made in the India Penal Code, 1860, which was given to us by the British colonial masters in the 19th century. Interestingly enough, while the United Kingdom has abolished the death penalty, India chooses to retain it. However, several judges of our Supreme Court have, from time to time, favoured the abolition of death penalty.
A. Judicial view
Law, as administered by courts, transforms into Justice. And, Justice is constant and perpetual will to render to everyone that to which he is entitled. In other words, Justice is the disposition of the human mind to render everyone his due. The Apex Court of India, time and again, has voiced to rub out the provisions of capital punishment from the statutory books for the following raison d'être:
I. Long delay in execution
It is an undisputed fact that litigation in India is a very time consuming affair. Extensive delay in the execution of a sentence of death does not serve any kind of purpose and is sufficient to invoke Article 21 and demand its substitution by the sentence of life-imprisonment.[43] Expressing his compassion for the condemned accused Mr. Justice V.R.Krishna Iyer in Rajendra prasad’s[44] case observed:
“This convict has had the hanging agony hanging over his head since 1973 with near solitary confinement to boot! He must by now is more a ‘vegetable’ than a person and hanging a ‘vegetable’ “is not death penalty”.
II. Reformative approach
In Narotam Singh v. State of Punjab[45] the Supreme Court has taken the following view:
“ Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
B. Legal arguments
Arguments based on International and municipal laws may be advanced as under:
i. Death penalty violates the constitutional guarantee of equal protection because inherently all murders are same, but only a few offenders are sent to gallows. While some are not given capital punishment, others even after judicial pronouncement escape the noose by getting the pardon, commutation, etc. by the President or Governors.
ii. Section 354(3) of Code of Criminal Procedure, 1973, gives too wide a discretion to the judges without proper and adequate legislative guidelines.
iii. India being a party to the Stockholm Declaration of 1977 was committed to abolish the death penalty.
C. Arguments based on theories of punishments
A theory of punishment can be best defined as the approach or reaction of the penologists towards a perpetrator of crime while deciding the question of sentence to him. Though opinions have differed as regards punishment to offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail, out of which, ‘reformative approach’ advanced by the Apex Court, has been put forth under the sub-heading “Judicial View” as above. Arguments based on the other three theories are as under:
I. Deterrent theory – not effective
Under this theory, it is an assumption that one, who contemplates felony, will be deterred because he knows if he is convicted, he can be sentenced to death. For the following reasons, it is, however, proven an assumption only:
i. The deterrent theory is right away cancelled, if the criminal can convince himself, as he typically does, that he will not be caught or convicted.
ii. While considering the deterrent theory what is important is not whether the penalty of death has deterrent effect on potential murderers but whether it deters more effectively than other penalties say, a life-imprisonment for a long term. But all studies made on the subject appear to conclude that the death penalty is inconsequential as a deterrent. Its efficacy as a deterrent is unproven.[46]
iii. Most acts of violence are crimes of passion, committed in the heat of the moment when all rational thought is suspended. Thus, they are not likely to be deterred at all. For those, who commit pre-meditated crimes, such as professional killers or ‘hit men’, they are even less likely to be deterred by the thought of death. For the simple reason that for them, any penalty, including capital punishment, is a risk already taken into account.[47]
iv. It is submitted that the death penalty is a futile threat for political terrorists because they usually act in the name of an ideology that honours its martyrs.[48]
v. It is submitted that deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. Thus, it can produce the desired results also when less severe punishments are awarded but consistently and promptly.
III. Retributive theory - not desirable
The retributive theory says that the severity of punishment must be proportional to the gravity of the crime. And, since, murder is the gravest crime, it deserves the severest punishment-death penalty. If this rule means punishments are unjust unless they are like the crime itself, then the theory is unacceptable: it would require us to rape rapists, torture torturers, betray traitors and kill multiple murderers again and again-punishments that are impossible to inflict in the contemporary civilized world.
IV. Preventive theory - death penalty not necessary
Devotees of preventive theory advocate the infliction of capital punishment, to prevent further crimes by the same criminal. Their apprehension, however, shall wither away if a culprit is imprisoned for life without the provisions of parole.
D. Economic arguments
The argument that money would be saved should be challenged with the question, “ How much money?” the number of persons who would be executed under present capital punishment laws is not a very large number.[49] So the economy argument does not seem to be very strong.
E. Logical arguments
Law, which awards capital punishment, is said to be nothing but codification of common sense. Potency of sentinels of the capital punishment can be questioned in light of following bare logics:
i. How can be a case ‘rarest of rare’ when many times even the whole bench is not having same opinion to award the death sentence?[50]
ii. The only justification for killing a person is direct self-defense. When a criminal is confined in prison, he does not threaten society; so killing him is not justified by self- defense.
iii. The notion that punishment reduces crime is based on the hedonistic assumption that people regulate their behaviour by calculation of pleasure and pain.[51]
iv. Excessive harshness of punishment tends to defeat its own purpose by arousing sympathy of the public towards those who are given cruel and inhuman punishment.
F. Religious arguments
Religion, the oldest institution fantasized and fashioned by man, cannot be marginalized while deciding about its member’s very existence. It mandates:
i. God gives the life and he alone can take it.
ii. The persons, who are unnaturally killed before the their time, do go to Hell for eternal punishment and do not get salvation (MUKTI).
G. Moral arguments
Morality plays second fiddle to none, when it comes to design the society. Following moral aspects are to be kept in perspectives before wrapping up the issue at hand:
i. By allowing the death penalty in our country we are achieving nothing but more death, suffering, and pain.
ii. Why should let a person die a quick, almost painless death if he murdered another person violently? Let him languish in prison up to his natural death!
iii. By it we accomplish nothing. We cannot undo the culprit’s evil deeds by killing him. It only causes pain to those who love him. Capital punishment adds to a never-ending cycle of pain and should be abolished.
iv. If we truly believe that killing is wrong, we must abolish the death penalty.
H. Irreversible
The death penalty legitimizes an irreversible act of violence by the state and has inevitably claimed innocent victims. As human justice remains fallible, the risk of executing the innocent will never be eliminated.
I. Effect on society
Death penalty “violates our belief in the human capacity for change…(it) powerfully reinforces the idea that killing can be a proper way of responding to those who have wronged us.
J. Unfairness
Most of the convicted persons are poor and illiterate, who cannot afford a competent lawyer. The defense lawyers provided by the State are often incompetent or/and do not take serious interest in the case. To quote Mr. Justice O Chinnappa Reddy,
“Experience shows that the burden of capital punishment falls more upon the ignorant, the impoverished and the underprivileged.”[52]
6. Arguments in Favour of Retention of Capital Punishment
India is currently one of only 83 countries in the world, which retains the capital punishment[53]. Till today, not many substantive changes have been made in the old Indian Penal Code that was enacted in 1860, which shows its efficiency and relevancy even in the 21st century. Those who advocate the abolition of the death penalty may be well nailed up from head to foot with the following counter arguments:
A. Judicial view
Judiciary, as expected and acknowledged, answers the cries of common men of the society. Society’s need and approval to the retention of the death penalty has, from time to time, been voiced by the Apex Court through several judgements which may be set forth under following headings:
I. Necessity
In Triveniben v. State of Gujrat,[54] the Supreme Court reinforced the need for retention of capital punishment in the following words:
“In our country, although there is a shift from ‘sentence to death’ to ‘lesser sentence’ yet there is a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases."
In R v. Howells[55] Court of Appeal, Criminal Division said:
“Court should always bear in mind that sentences were in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of those things.”
II. Delay in executions
A considerable time between imposition of the capital punishment and the actual execution is unavoidable, given the procedural safeguards required by the courts in such cases. It is, in fact, in favour of the convict.
In Sher Singh & others v. State of Punjab,[56] the Supreme Court refused to follow the ratio of TV Vatheeswaran’s case, and held that delay in execution of death penalty exceeding two years by itself does not violate Article 21 of the constitution to enable a person under sentence of death to demand quashing of sentence and converging it into sentence of the life-imprisonment.
III. Security in Society
In Mahesh v. State of M.P.,[57] the Apex Court expressing a fear observed:
“… to give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will loose faith in courts. In such a case, he understands and appreciates the language of deterrence more than the reformative jargon.”
IV. Appropriate punishment must be given
Justice demands that courts should impose punishment befitting the crime, so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminals but also the rights of the victims of the crime and also the society at large while considering imposition of appropriate punishment.[58] In this connection, it is pertinent to note the observation of the Supreme Court in Ravji v. State of Rajasthan,[59] which is as follows:
“ The court would be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society, to which the criminal and victim belong.”
B. Chances of mistake by the judiciary
One of the arguments, fervently offered against the retention of death penalty is that, with the present judicial system, the chances of error being committed by the judges and sending an innocent person to gallows cannot be reeled out. However, after having a look on the following facts and legal provisions, the above argument lasts no longer than a rainbow:
i. First of all, the apex court has confined the imposition of capital punishment to rarest of rare cases[60] so few people, after long careful proceedings, are awarded death penalty.
ii. The processes of ascertaining guilt and awarding sentence are separated by distinct hearings.[61]
iii. The sentence awarded by the session courts is subject to automatic confirmation by the High Court of the concerned state.[62]
iv. If a woman sentenced to death is found to be pregnant, the High court shall order the execution of the sentenced to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.[63]
v. In every case in which sentence of death is passed, the appropriate government may, without the consent of the offender, commute the punishment for any other punishment provided by the Indian Penal Code, 1860.[64] Similar provisions are provided in the Code of Criminal Procedure, 1973[65] also.
vi. 95% cases go to the Apex court.[66]
vii. Even thereafter, these cases are subject to an endless procession of clemency appeals, reprieves and pardons, etc. under Articles 72 and 161 of the Constitution of India. This eliminates even single atom of judicial error, which might have remained after such a long purification process.
viii. The Supreme Court has also struck down mandatory death sentence for an offender already undergoing life sentence. Virtually no category of offence now involves automatic or mandatory death penalty, as it does in several other countries. Thus, the chance of an innocent person being sent to the gallows is statistically infinitesimal.
C. Arguments based on the theories of punishment
I. Deterrence theory
Deterrence is the threat of punishment or some other harm that will result from a particular action. The function of this theory can be understood from the statement of a judge:
“ I do not punish you for stealing the ship, but so that the ship may not be stolen.”
i. Regarding the deterrent effect of capital punishment, Edward J. Allen gives a very convincing argument by raising a pertinent question:
“If this be true, then why do criminals, even the braggadocios chessman type, fear it most? Why does every criminal sentenced to death seek commutation to life imprisonment?”
ii. If someone is imprisoned for life, there is no deterrence for him to kill off other inmates and prison personnel’s, since there is no harsher punishment than life-imprisonment, which already has been given to him.
iii. Even if we assume that death penalty will not operate as deterrence on some criminals, then, no other lesser punishment can, logically, deter them too. Then, it would lead to the conclusion that they should not be given any kind of punishment because it is of no effect.
iv. It is impossible to find out as to in how many cases it actually deterred the potential offenders. Royal Commission on death penalty of England remarked:
“ We can number its failures but we cannot number its successes.”
II. Retributive theory
It is said that unless the criminal gets the punishment he deserves, one or both of the following effects will be produced:
i. The victim will seek individual revenge;
ii. The victim shall refuse to make a complaint or offer testimony, and the state will, therefore, be handicapped in dealing with criminals.
The object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.[67]
III. Preventive theory
Another aspect of punishment is to disable the offenders from repeating the crime by punishment like death, exile etc. If terrorists, gangsters, etc. are given imprisonment for life instead of death penalty, it is evident from day to day incidents that they, by hook or by crook, break away from the prisons very soon and again become threat to society.
IV. Reformative theory
Though on papers and in discussions it seems good as well as possible to reform the criminals, in practical reality it may not be possible to do so. Professional and hardheaded criminals can never be reformed by any therapy or theory. Another logical apprehension is that if criminals are sent to prison to be transformed into good citizens, the prisons will no more remain prison, but will become dwelling houses.
D. Legal arguments
Further worries and apprehensions of the abolitionists, may be well countered in light of following statutory provisions and judicial precedents:
i Crimes under grave and sudden provocation
For the crimes in the heat of moment, death penalty is either not possible or is not awarded.[68]
II. Self-defense
If we see in the broader and liberal context, death penalty is nothing but the exercise of ‘right to private defense.’
III. Fundamental right to life
In this regard Article 21 of our Constitution, clearly provides:
“A person can be deprived of his life and liberty according to the procedure established by law.”
Moreover, the Supreme Court in a catena of decisions has held it to be constitutional.
If death penalty is infringement of fundamental right to life, then, logically, why should a convicted person also be given life sentence since they also have right to freedom along with right to life?[69]
IV. Stockholm Declaration, 1977
The above declaration did not stand for the abolition of death penalty but required that the penalty ought not to be awarded arbitrarily and must be confined to the extremely heinous crimes only. Thus, Indian position is identical to the covenant by virtue of Article 20 and 21 of the Constitution and Section 354(3) of the Code of Criminal Procedure, 1973.[70]
E. Moral arguments
i. It is humbly submitted that it itself is a greatest debate whether God exist or not.
ii. It is submitted that laws are enacted when morality becomes impotent in regulating the society; therefore, morality should not obscure our minds while discussing legal issues.
iii. It’s a misconception that death penalty undermines the value of human life. In fact, it is by exacting the highest penalty for taking of human life that we affirm the highest value of human life.
F. Economic arguments
Death penalty saves hard-earned money of taxpayers as once a convicted murderer is executed and buried, there is no further maintenance cost to the state.
G. Social arguments
i. The argument that even the worst criminal deserves our humanity- and, by implication, protection against premature death- naively assumes that the right to belong to a society is absolute and unconditional. The community, in turn, cannot make any demand- moral or otherwise – on the individual member. This is mistaken.[71]
ii. Not giving capital punishment is not the first and only criteria of becoming civilized nation.
H. Law commission’s observations
The Law Commission in its 35th report concluded:
i. Basically, every human being dreads death;
ii. Death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is of quality and merely a degree.
iii. Whether any other punishment can possess all the advantages of death penalty is a matter of doubt.
iv. Statistics of other countries are inconclusive on the subject, if they are not regarded as proving the deterrent effect; neither can they be regarded as conclusively disproving it.
I. Murder versus Capital Punishment
Murder and execution are morally equivalent because they both kill people. But this does not make sense. If that were so, it could be logically said that wrongful confinement[72]of an innocent person by a civilian and imprisonment of an offender by the state are morally equivalent, because they both confine a person. ‘Murder’ term is used for unlawful killings only and capital punishment by the judiciary is not unlawful.[73] Moreover every type of killing even by civilians is not murder.[74] Thus there is a fundamental legal difference between killing innocent people (murder) and capital punishment for murder.
J. Poor’s conviction
Though there may be some substance in the arguments of poor’s and innocent’s convictions but on careful scrutiny, it is clear that they point out defects in the administration of justice and not anything against capital punishment as such.
K. Voice of People
On an Internet poll[75] only 19% participants voted in favour of the question “ Should death sentence be banned in India?” and rest of 81% wanted to retain the capital punishment.
7. Conclusion
Acting under severe constraints imposed by our own Constitutional provisions, the legislature and the judiciary, we execute some people here and there, episodically confessing worry and even shame that we are not quite sure about what we are doing. Then we nervously try it all again. As above discussion reveals that legally, we cannot live without capital punishment. Morally, we have trouble in living with it.
Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminals and in the ultimate making justice suffer by weakening the system’s credibility.[76]
It is, hereby, humbly submitted that following reforms may be made to improve the efficiency and expediency of justice and to uplift the faith of common man in the judicial process:
i. The cases in which the whole bench is not ad idem, should be charted out from the category of ‘rarest of rare’ cases.
ii. The time between imposition of death penalty and actual execution should be considerably reduced by taking following measures:
(a) The maximum number of mercy petitions, which can be filed to the President, should be specified.
(b) Locus standi to file the mercy petitions should also be specified.
iii. It should be made mandatory that death penalty cases be heard by benches of a minimum of three Judges in the High Court and five in the Supreme Court. This would considerably reduce the cases of judicial inconsistency.
iv. The State must ensure that police, investigating agencies, procedural laws and judiciary act in such a way that the culprit shall be arrested and awarded appropriate sentence promptly.
In view of the present deteriorating law and order situation in India, total abolition of death penalty would mean giving a long rope to dangerous offenders to commit murderers and heinous crimes with impunity.[77] When a clemency petition is rejected by the President, it is submitted, it shows that the whole nation and its all institutions are, though indirectly, in favour of executing that particular offender as President acts on the aid and advice of Council of Ministers[78] and this Council of Ministers represents all Indian citizens’ voice.[79] Moreover, the present direct consensus of the public is also in favour of retention of death penalty as evident from the raising demands of awarding death penalty for rapists and spurious drugs sellers by several feministic and social activists, legal luminaries and parliamentarians. Therefore, keeping in mind the maxim ‘Salus populi est suprema lex’ proper approach to issue, perhaps, will be that death penalty must be retained for incorrigibles and hardened criminals but its use should be limited to ‘rarest of rare’ cases. The courts may make use of death penalty sparingly but its retention on the statute book seems necessary as a penological expediency. May it be concluded that capital punishment should not be given capital punishment!
: V. R. Krishna Iyer, J.[1]
“… the humanistic approach should not obscure our sense of realities. When a man commits a crime against society by committing a diabolical, cold-blooded, pre-planned murder of one innocent person the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.”
: A. P. Sen, J.[2]
1. Introduction
Whether to retain or to abolish the sentence of capital punishment has been a universal subject of endless debate, countless studies, several researches and plenty of experiments but no conclusion has been reached yet which can socially, morally and legally be accepted. Almost all states have two groups –one who supports the retention of capital punishment and other who argues to abolish it. In India, the debate was revived when all the 26 defendants in the Rajiv Gandhi assassination case were sentenced to death. It also came up in the wake of rather reckless proposals on extending the death penalty to those dealing in spurious drugs and to those convicted for rape.[3] The execution of Dhananjay Chatterjee, a security guard of a housing society in West Bengal who firstly raped then murdered a school going girl of that housing society, had once again revived this debate all over India.[4] Recently, a city court of Kolkata handed out death penalty to Dubai based underworld don Aftab Ansari and six others for the attack outside the American Centre there that left five policemen dead.[5]
2. Punishment: Meaning and Objects
Punishment is the sanction imposed on a person for the infringement of the rules of society. It is primarily used as a method of protecting society by reducing the occurrence of criminal behaviour.[6] The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”[7]
A dispassionate analysis of criminological jurisprudence would reveal that capital punishment is justified only in extreme cases in which a high degree of culpability is involved causing grave danger to society.[8] Society has resorted to many different methods in executing criminals and other allegedly dangerous persons in the past e.g. drowning, stoning to death, burning at the stake and beheading etc. These methods, however, appear barbaric especially in comparison to the seemingly sanitized, quick, and painless procedure of death by lethal injections, the most commonly used method of execution in contemporary America.[9]
3. Capital Punishment in Modern World
For many years there has been a dignified movement on part of thousands of enlightened and humane individuals to eliminate the capital punishment. In England, the movement against capital punishment was carried on by ‘Romilly’ and some other reformers and in recent past by ‘Sydeny Silverman’ whose efforts led to the almost total abolition of capital punishment under the Murder (Abolition of Death Penalty) Act, 1965.[10]
In USA, the trend for abolition of capital punishment commenced in the 19th century when the state of Michigan abolished it, except for treason, in 1847. Since then, many more states have followed the suit.[11] In 1972, the US Supreme Court in a well-known case Furmen v. Georgia[12] declared that the under then existing laws, “the imposition and carrying out of the death penalty …constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments”.
In 1976, the Supreme Court moved away from abolition, holding in Gregg v. Georgia[13] that “the punishment of death does not invariably violate the constitution”. The court ruled that the now death penalty statutes contained “objectives standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death”. Subsequently, 38 state legislatures and the Federal Government have enacted death penalty statues patterned after those the court upheld in Gregg’s case.
4. Capital Punishment in India
A. Pre-independence
The ancient law of crimes in India provided capital punishment for quite a good number of offences. The great Hindu law-giver ‘Manu’ said that ‘…in order to refrain people from sinful murders, death penalty was necessary and in absence of this mode of punishment, state of anarchy will prevail and people would devour each other as the fish do in the water, the stronger eating up the weaker.”[14]
During the reign of Mughal emperors, barbaric methods of putting an offender to death were used. It is interesting to note that the Sikh Emperor Maharaja Ranjit Singh never hanged anyone during his reign. The British, however, used death by hanging as the only legalized mode of inflicting capital punishment.
B. Post-independence
After independence, a bill was introduced in the Lok-Sabha in 1956, to abolish the capital punishment which was rejected by the house. Efforts made in the Rajya-Sabha in 1958 and in 1962 were also fruitless.
The law commission, in its 35th report (1967) observed:
“Having regard to the conditions in India, to the variety of the social upbringings of its people, to the disparity in the level of morality and education in the country, to the vastness of its area and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the abolition of capital punishment.”
The last time the Lok Sabha specifically discussed the question was in 1983. Then Prime Minister Indira Gandhi had stated that she favoured abolition of death penalty. But her minister of state for home affairs, NR Laskar announced that the government was not considering any concrete proposal to abolish it.[15]
I. Capital Punishment and Legislation
In India, penal provisions have been made in Indian Penal Code, 1860, according to which capital punishment is given in only eight types of offences, which can be classified into three broad categories:
i. Crimes against persons:
(a) murder;[16]
(b) murder by life-convict;[17]
(c) abatement of suicide of child or insane person;[18]
(d) attempt to murder by a life-convict causing hurt;[19]
(e) dacoity with murder.[20]
ii. Giving or fabricating false evidence with intent to procure conviction of capital offence.[21]
iii. Crimes against Government of India:
(a) waging, or attempting to wage war against state of India;[22]
(b) abetment of mutiny.[23]
In addition to Indian Penal Code, 1860 other laws like Narcotic drugs and Psychotropic Substances Act, 1985, Explosive Substances Act, 1908, Prevention of Terrorism Act, 2002, etc. also have the capital punishment that can be awarded as the maximum punishment. The Air Force Act, 1957, The Army Act, 1950 and The Navy Act, 1957 provide for imposition of the capital punishment, either by hanging by neck till death or being shot to death.
Besides this, the Code of Criminal Procedure, 1973 provides some important provisions regarding the procedure of awarding the capital punishment. The Code of Criminal Procedure, before 1973, obliged the court to pass capital punishment for murder as a general proposition and the alternative sentence could be awarded only in exceptional cases for which the court was then required to advance special reasons. After 1973, there was a complete reversal to this approach. Thereafter, life-imprisonment was made the normal sentence for murder and death penalty was allowed to be passed only in exceptionally cases.[24] The criminal courts were required to state special reasons for choosing the latter.[25]
Section 235(2) of Code of Criminal Procedure, 1973, requires that if the accused is convicted the judge shall, unless he proceed in accordance with section 360, hear the accused on the question of sentence, according to law. Thus by virtue of section 235(2) conviction and sentence cannot be passed on the same day.[26]
II. Capital Punishment and Judiciary
In the well-known case of State of Tamil Nadu v. Nalini & others,[27] DP Wadhwa, J. took the following view:
“… Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the cautions and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.
…A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.”
Thus, the above statements show the viewpoint of the Supreme Court of India, when faced with a question whether to award capital punishment or life-imprisonment.
III. Constitutional Validity of Capital Punishment
The constitutional validity of the capital punishment has been challenged from time to time. In Jagmohan Singh v. State of UP,[28] it was argued that the ‘right to live’ was the very basic right to the freedoms guaranteed under Article 19 of the Constitution. The Supreme Court rejected the contention and held that death penalty cannot be regarded unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the Constitution. It is noteworthy that Hon’ble Mr. Justice Krishna Iyer had in Rajendra Prasad v. State of UP[29] empathetically stressed that death penalty is violative of articles 14, 19 and 21 of the Constitution of India. However, he made it clear that where murder is deliberate, premeditated, cold-blooded and gruesome and there are no extenuating circumstances, the offender must be sentenced to death as a measure of social defense. A year later in the landmark case of Bachan Singh v. State of Punjab,[30] by a majority of 4 to 1 (Bhagwati, J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad’s case. 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 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order”.
Then again in Smt. Shashi Nayar v. Union of India,[31] a very desperate and futile attempt was made to get capital punishment declared unconstitutional. The Hon’ble Supreme Court, however, rejected all the arguments and held that ‘ death penalty has a deterrent effect and it does serve a social purpose’ and is hence within the framework of the Constitution.
IV. Cases calling for Capital Sentence: Rarest of Rare Cases
The Apex Court has laid down the following propositions to determine the cases in which the capital punishment can be justified[32]:
i. Death penalty need not be inflicted except in gravest cases of extreme culpability i.e. rarest of rare cases.
ii. Circumstances of the ‘criminal’ to be taken into account along with circumstances of the crime. Due regard must be paid to the crime and to the criminal while examining whether ‘special reasons’[33] exist for award of death penalty[34].
iii. Life-imprisonment is the rule and death penalty is an exception.
iv. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating factors have to be accorded full weightage, and a just balance must be struck between the two before the option is exercised.
v. It would be desirable to indicate the broad guidelines, without formulating rigid standards for categorizing cases in which death penalty could be imposed, because standardization would leave little room for ‘judicial discretion’.
The court concluded that the capital punishment might have some significant deterrent effect. It must be, however, noted that the minority view (Bhagwati, J.) was diametrically opposite- that death penalty does not serve any social purpose or advance any constitutional value and is totally arbitrary and unreasonable.
The Supreme Court in another landmark case of Machhi Singh v. State of Punjab[35] approved the principles laid down in Bachan Singh’s case and held that in order to apply these principles inter alia, the following questions may be asked and answered:
i. Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death penalty?
ii. Are the circumstances of the crime such, that there is no alternative but to impose death penalty even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?
The Supreme Court also laid down certain guidelines to ascertain the rarest of rare cases, and according to it the factors that are to be considered are as follows:
i. Manner of commission of murder;
ii. Motive for commission of murder;
iii. Anti-social or socially abhorrent nature of crime;
iv. Magnitude of crime;[36]
v. Personality of the victim of murder.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.
Since then, the Supreme Court has been following the principles laid down in above two cases. Recently, on April 8, 2005, a Division Bench of the Hon’ble Supreme Court in Holiram Bordoloi Vs. State of Assam[37] dismissed the appeal and upheld the Assam High Court’s decision of death penalty to the appellant. The Hon’ble Justice K.G. Balakrishnan analytically applied the above-discussed guidelines on the facts of the present case and observed:
“15. In the present case the aggravating circumstances against the accused are: (a) this is a case of cold-blooded murder; (b) the accused was leading the gang; (c) The victims did not provoke or contribute to the incident; (d) two victims were burnt to death by locking the house from outside; (e) one of the victims was a young boy, aged about 6 years, who, somehow, managed to come out of the burning house, but he was mercilessly thrown back to the fire by the appellant; (f) the dragging of Nagarmoi Bordoloi by the appellant Holiram to his house and then cutting him into pieces in broad daylight in the presence of bystanders; (g) the entire incident took place in the broad daylight and the crime was committed in the most barbaric manner to deter others from challenging the supremacy of the appellant in the village; (h) the entire incident was pre-planned by the accused-appellant Holiram.
16. On the other hand, neither the perusal of the evidence on record nor the statement under Section 313 Criminal Procedure Code, provided for any mitigating circumstance in favour of the appellant. It is nowhere claimed that the deceased had provoked the accused persons or there was any strong motive for the commission of the heinous act.
….
18. … There was no spark of any kindness or compassion and his mind was brutal and the entire incident would have certainly shocked the collective conscience of the community. We are unable to find any mitigating circumstance to refrain from imposing the death penalty on the appellant.
In almost every case, the Apex Court is requested to lay down standards and norms restricting the area of imposition of death penalty, but nothing could be done in this regard for apparently convincing reasons, as advanced by the Hon’ble Court in Mohd. Chaman v. State (NCT of Delhi)[38]:
“Such standardization is well-nigh impossible. Firstly, degree of culpability cannot be measured in each case; secondly, criminal cases cannot be categorized, there being infinite, unpredictable and unforeseeable variations; thirdly, on such categorization, the sentencing process will cease to be judicial; and fourthly, such standardization or sentencing discretion is a policy-matter belonging to the legislature, beyond the court’s function. Only broad guidelines consistent with the policy indicated by the legislature in section 354(3), can be laid down.”
In State of Tamil Nadu v. Nalini & others,[39] DP Wadhwa, J. observed:
“…we cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.”
In Triveniben v. State of Gujarat,[40] a Constitution Bench of 5 judges per majority observed:
“…the circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situations in society and the possibilities in which the offence could be committed and in this context, in ultimate analysis it is not doubted that the legislature was right in leaving it to the judicial decision as to what should be the sentence in particular circumstances of the case…”
Though it is desirable to set crystal clear parameters, it is submitted that while deciding the paramount issue- the very existence of a person, a hint of human discretion may produce better results for all the parties than insensitive mathematical formulas. It is also humbly submitted that if it could be done then there should, logically, be neither any need nor any place for Articles 72 and 161 of the Constitution of India.[41]
5. Arguments in Favour of Abolition of Capital Punishment
Each year, since 1976, three more countries a year have added their names to the list of countries that have abolished the death penalty. A majority of nations have ended capital punishment in law or practice.[42] In India, the provisions for the death penalty have been made in the India Penal Code, 1860, which was given to us by the British colonial masters in the 19th century. Interestingly enough, while the United Kingdom has abolished the death penalty, India chooses to retain it. However, several judges of our Supreme Court have, from time to time, favoured the abolition of death penalty.
A. Judicial view
Law, as administered by courts, transforms into Justice. And, Justice is constant and perpetual will to render to everyone that to which he is entitled. In other words, Justice is the disposition of the human mind to render everyone his due. The Apex Court of India, time and again, has voiced to rub out the provisions of capital punishment from the statutory books for the following raison d'être:
I. Long delay in execution
It is an undisputed fact that litigation in India is a very time consuming affair. Extensive delay in the execution of a sentence of death does not serve any kind of purpose and is sufficient to invoke Article 21 and demand its substitution by the sentence of life-imprisonment.[43] Expressing his compassion for the condemned accused Mr. Justice V.R.Krishna Iyer in Rajendra prasad’s[44] case observed:
“This convict has had the hanging agony hanging over his head since 1973 with near solitary confinement to boot! He must by now is more a ‘vegetable’ than a person and hanging a ‘vegetable’ “is not death penalty”.
II. Reformative approach
In Narotam Singh v. State of Punjab[45] the Supreme Court has taken the following view:
“ Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
B. Legal arguments
Arguments based on International and municipal laws may be advanced as under:
i. Death penalty violates the constitutional guarantee of equal protection because inherently all murders are same, but only a few offenders are sent to gallows. While some are not given capital punishment, others even after judicial pronouncement escape the noose by getting the pardon, commutation, etc. by the President or Governors.
ii. Section 354(3) of Code of Criminal Procedure, 1973, gives too wide a discretion to the judges without proper and adequate legislative guidelines.
iii. India being a party to the Stockholm Declaration of 1977 was committed to abolish the death penalty.
C. Arguments based on theories of punishments
A theory of punishment can be best defined as the approach or reaction of the penologists towards a perpetrator of crime while deciding the question of sentence to him. Though opinions have differed as regards punishment to offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail, out of which, ‘reformative approach’ advanced by the Apex Court, has been put forth under the sub-heading “Judicial View” as above. Arguments based on the other three theories are as under:
I. Deterrent theory – not effective
Under this theory, it is an assumption that one, who contemplates felony, will be deterred because he knows if he is convicted, he can be sentenced to death. For the following reasons, it is, however, proven an assumption only:
i. The deterrent theory is right away cancelled, if the criminal can convince himself, as he typically does, that he will not be caught or convicted.
ii. While considering the deterrent theory what is important is not whether the penalty of death has deterrent effect on potential murderers but whether it deters more effectively than other penalties say, a life-imprisonment for a long term. But all studies made on the subject appear to conclude that the death penalty is inconsequential as a deterrent. Its efficacy as a deterrent is unproven.[46]
iii. Most acts of violence are crimes of passion, committed in the heat of the moment when all rational thought is suspended. Thus, they are not likely to be deterred at all. For those, who commit pre-meditated crimes, such as professional killers or ‘hit men’, they are even less likely to be deterred by the thought of death. For the simple reason that for them, any penalty, including capital punishment, is a risk already taken into account.[47]
iv. It is submitted that the death penalty is a futile threat for political terrorists because they usually act in the name of an ideology that honours its martyrs.[48]
v. It is submitted that deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. Thus, it can produce the desired results also when less severe punishments are awarded but consistently and promptly.
III. Retributive theory - not desirable
The retributive theory says that the severity of punishment must be proportional to the gravity of the crime. And, since, murder is the gravest crime, it deserves the severest punishment-death penalty. If this rule means punishments are unjust unless they are like the crime itself, then the theory is unacceptable: it would require us to rape rapists, torture torturers, betray traitors and kill multiple murderers again and again-punishments that are impossible to inflict in the contemporary civilized world.
IV. Preventive theory - death penalty not necessary
Devotees of preventive theory advocate the infliction of capital punishment, to prevent further crimes by the same criminal. Their apprehension, however, shall wither away if a culprit is imprisoned for life without the provisions of parole.
D. Economic arguments
The argument that money would be saved should be challenged with the question, “ How much money?” the number of persons who would be executed under present capital punishment laws is not a very large number.[49] So the economy argument does not seem to be very strong.
E. Logical arguments
Law, which awards capital punishment, is said to be nothing but codification of common sense. Potency of sentinels of the capital punishment can be questioned in light of following bare logics:
i. How can be a case ‘rarest of rare’ when many times even the whole bench is not having same opinion to award the death sentence?[50]
ii. The only justification for killing a person is direct self-defense. When a criminal is confined in prison, he does not threaten society; so killing him is not justified by self- defense.
iii. The notion that punishment reduces crime is based on the hedonistic assumption that people regulate their behaviour by calculation of pleasure and pain.[51]
iv. Excessive harshness of punishment tends to defeat its own purpose by arousing sympathy of the public towards those who are given cruel and inhuman punishment.
F. Religious arguments
Religion, the oldest institution fantasized and fashioned by man, cannot be marginalized while deciding about its member’s very existence. It mandates:
i. God gives the life and he alone can take it.
ii. The persons, who are unnaturally killed before the their time, do go to Hell for eternal punishment and do not get salvation (MUKTI).
G. Moral arguments
Morality plays second fiddle to none, when it comes to design the society. Following moral aspects are to be kept in perspectives before wrapping up the issue at hand:
i. By allowing the death penalty in our country we are achieving nothing but more death, suffering, and pain.
ii. Why should let a person die a quick, almost painless death if he murdered another person violently? Let him languish in prison up to his natural death!
iii. By it we accomplish nothing. We cannot undo the culprit’s evil deeds by killing him. It only causes pain to those who love him. Capital punishment adds to a never-ending cycle of pain and should be abolished.
iv. If we truly believe that killing is wrong, we must abolish the death penalty.
H. Irreversible
The death penalty legitimizes an irreversible act of violence by the state and has inevitably claimed innocent victims. As human justice remains fallible, the risk of executing the innocent will never be eliminated.
I. Effect on society
Death penalty “violates our belief in the human capacity for change…(it) powerfully reinforces the idea that killing can be a proper way of responding to those who have wronged us.
J. Unfairness
Most of the convicted persons are poor and illiterate, who cannot afford a competent lawyer. The defense lawyers provided by the State are often incompetent or/and do not take serious interest in the case. To quote Mr. Justice O Chinnappa Reddy,
“Experience shows that the burden of capital punishment falls more upon the ignorant, the impoverished and the underprivileged.”[52]
6. Arguments in Favour of Retention of Capital Punishment
India is currently one of only 83 countries in the world, which retains the capital punishment[53]. Till today, not many substantive changes have been made in the old Indian Penal Code that was enacted in 1860, which shows its efficiency and relevancy even in the 21st century. Those who advocate the abolition of the death penalty may be well nailed up from head to foot with the following counter arguments:
A. Judicial view
Judiciary, as expected and acknowledged, answers the cries of common men of the society. Society’s need and approval to the retention of the death penalty has, from time to time, been voiced by the Apex Court through several judgements which may be set forth under following headings:
I. Necessity
In Triveniben v. State of Gujrat,[54] the Supreme Court reinforced the need for retention of capital punishment in the following words:
“In our country, although there is a shift from ‘sentence to death’ to ‘lesser sentence’ yet there is a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases."
In R v. Howells[55] Court of Appeal, Criminal Division said:
“Court should always bear in mind that sentences were in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of those things.”
II. Delay in executions
A considerable time between imposition of the capital punishment and the actual execution is unavoidable, given the procedural safeguards required by the courts in such cases. It is, in fact, in favour of the convict.
In Sher Singh & others v. State of Punjab,[56] the Supreme Court refused to follow the ratio of TV Vatheeswaran’s case, and held that delay in execution of death penalty exceeding two years by itself does not violate Article 21 of the constitution to enable a person under sentence of death to demand quashing of sentence and converging it into sentence of the life-imprisonment.
III. Security in Society
In Mahesh v. State of M.P.,[57] the Apex Court expressing a fear observed:
“… to give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will loose faith in courts. In such a case, he understands and appreciates the language of deterrence more than the reformative jargon.”
IV. Appropriate punishment must be given
Justice demands that courts should impose punishment befitting the crime, so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminals but also the rights of the victims of the crime and also the society at large while considering imposition of appropriate punishment.[58] In this connection, it is pertinent to note the observation of the Supreme Court in Ravji v. State of Rajasthan,[59] which is as follows:
“ The court would be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society, to which the criminal and victim belong.”
B. Chances of mistake by the judiciary
One of the arguments, fervently offered against the retention of death penalty is that, with the present judicial system, the chances of error being committed by the judges and sending an innocent person to gallows cannot be reeled out. However, after having a look on the following facts and legal provisions, the above argument lasts no longer than a rainbow:
i. First of all, the apex court has confined the imposition of capital punishment to rarest of rare cases[60] so few people, after long careful proceedings, are awarded death penalty.
ii. The processes of ascertaining guilt and awarding sentence are separated by distinct hearings.[61]
iii. The sentence awarded by the session courts is subject to automatic confirmation by the High Court of the concerned state.[62]
iv. If a woman sentenced to death is found to be pregnant, the High court shall order the execution of the sentenced to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.[63]
v. In every case in which sentence of death is passed, the appropriate government may, without the consent of the offender, commute the punishment for any other punishment provided by the Indian Penal Code, 1860.[64] Similar provisions are provided in the Code of Criminal Procedure, 1973[65] also.
vi. 95% cases go to the Apex court.[66]
vii. Even thereafter, these cases are subject to an endless procession of clemency appeals, reprieves and pardons, etc. under Articles 72 and 161 of the Constitution of India. This eliminates even single atom of judicial error, which might have remained after such a long purification process.
viii. The Supreme Court has also struck down mandatory death sentence for an offender already undergoing life sentence. Virtually no category of offence now involves automatic or mandatory death penalty, as it does in several other countries. Thus, the chance of an innocent person being sent to the gallows is statistically infinitesimal.
C. Arguments based on the theories of punishment
I. Deterrence theory
Deterrence is the threat of punishment or some other harm that will result from a particular action. The function of this theory can be understood from the statement of a judge:
“ I do not punish you for stealing the ship, but so that the ship may not be stolen.”
i. Regarding the deterrent effect of capital punishment, Edward J. Allen gives a very convincing argument by raising a pertinent question:
“If this be true, then why do criminals, even the braggadocios chessman type, fear it most? Why does every criminal sentenced to death seek commutation to life imprisonment?”
ii. If someone is imprisoned for life, there is no deterrence for him to kill off other inmates and prison personnel’s, since there is no harsher punishment than life-imprisonment, which already has been given to him.
iii. Even if we assume that death penalty will not operate as deterrence on some criminals, then, no other lesser punishment can, logically, deter them too. Then, it would lead to the conclusion that they should not be given any kind of punishment because it is of no effect.
iv. It is impossible to find out as to in how many cases it actually deterred the potential offenders. Royal Commission on death penalty of England remarked:
“ We can number its failures but we cannot number its successes.”
II. Retributive theory
It is said that unless the criminal gets the punishment he deserves, one or both of the following effects will be produced:
i. The victim will seek individual revenge;
ii. The victim shall refuse to make a complaint or offer testimony, and the state will, therefore, be handicapped in dealing with criminals.
The object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.[67]
III. Preventive theory
Another aspect of punishment is to disable the offenders from repeating the crime by punishment like death, exile etc. If terrorists, gangsters, etc. are given imprisonment for life instead of death penalty, it is evident from day to day incidents that they, by hook or by crook, break away from the prisons very soon and again become threat to society.
IV. Reformative theory
Though on papers and in discussions it seems good as well as possible to reform the criminals, in practical reality it may not be possible to do so. Professional and hardheaded criminals can never be reformed by any therapy or theory. Another logical apprehension is that if criminals are sent to prison to be transformed into good citizens, the prisons will no more remain prison, but will become dwelling houses.
D. Legal arguments
Further worries and apprehensions of the abolitionists, may be well countered in light of following statutory provisions and judicial precedents:
i Crimes under grave and sudden provocation
For the crimes in the heat of moment, death penalty is either not possible or is not awarded.[68]
II. Self-defense
If we see in the broader and liberal context, death penalty is nothing but the exercise of ‘right to private defense.’
III. Fundamental right to life
In this regard Article 21 of our Constitution, clearly provides:
“A person can be deprived of his life and liberty according to the procedure established by law.”
Moreover, the Supreme Court in a catena of decisions has held it to be constitutional.
If death penalty is infringement of fundamental right to life, then, logically, why should a convicted person also be given life sentence since they also have right to freedom along with right to life?[69]
IV. Stockholm Declaration, 1977
The above declaration did not stand for the abolition of death penalty but required that the penalty ought not to be awarded arbitrarily and must be confined to the extremely heinous crimes only. Thus, Indian position is identical to the covenant by virtue of Article 20 and 21 of the Constitution and Section 354(3) of the Code of Criminal Procedure, 1973.[70]
E. Moral arguments
i. It is humbly submitted that it itself is a greatest debate whether God exist or not.
ii. It is submitted that laws are enacted when morality becomes impotent in regulating the society; therefore, morality should not obscure our minds while discussing legal issues.
iii. It’s a misconception that death penalty undermines the value of human life. In fact, it is by exacting the highest penalty for taking of human life that we affirm the highest value of human life.
F. Economic arguments
Death penalty saves hard-earned money of taxpayers as once a convicted murderer is executed and buried, there is no further maintenance cost to the state.
G. Social arguments
i. The argument that even the worst criminal deserves our humanity- and, by implication, protection against premature death- naively assumes that the right to belong to a society is absolute and unconditional. The community, in turn, cannot make any demand- moral or otherwise – on the individual member. This is mistaken.[71]
ii. Not giving capital punishment is not the first and only criteria of becoming civilized nation.
H. Law commission’s observations
The Law Commission in its 35th report concluded:
i. Basically, every human being dreads death;
ii. Death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is of quality and merely a degree.
iii. Whether any other punishment can possess all the advantages of death penalty is a matter of doubt.
iv. Statistics of other countries are inconclusive on the subject, if they are not regarded as proving the deterrent effect; neither can they be regarded as conclusively disproving it.
I. Murder versus Capital Punishment
Murder and execution are morally equivalent because they both kill people. But this does not make sense. If that were so, it could be logically said that wrongful confinement[72]of an innocent person by a civilian and imprisonment of an offender by the state are morally equivalent, because they both confine a person. ‘Murder’ term is used for unlawful killings only and capital punishment by the judiciary is not unlawful.[73] Moreover every type of killing even by civilians is not murder.[74] Thus there is a fundamental legal difference between killing innocent people (murder) and capital punishment for murder.
J. Poor’s conviction
Though there may be some substance in the arguments of poor’s and innocent’s convictions but on careful scrutiny, it is clear that they point out defects in the administration of justice and not anything against capital punishment as such.
K. Voice of People
On an Internet poll[75] only 19% participants voted in favour of the question “ Should death sentence be banned in India?” and rest of 81% wanted to retain the capital punishment.
7. Conclusion
Acting under severe constraints imposed by our own Constitutional provisions, the legislature and the judiciary, we execute some people here and there, episodically confessing worry and even shame that we are not quite sure about what we are doing. Then we nervously try it all again. As above discussion reveals that legally, we cannot live without capital punishment. Morally, we have trouble in living with it.
Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminals and in the ultimate making justice suffer by weakening the system’s credibility.[76]
It is, hereby, humbly submitted that following reforms may be made to improve the efficiency and expediency of justice and to uplift the faith of common man in the judicial process:
i. The cases in which the whole bench is not ad idem, should be charted out from the category of ‘rarest of rare’ cases.
ii. The time between imposition of death penalty and actual execution should be considerably reduced by taking following measures:
(a) The maximum number of mercy petitions, which can be filed to the President, should be specified.
(b) Locus standi to file the mercy petitions should also be specified.
iii. It should be made mandatory that death penalty cases be heard by benches of a minimum of three Judges in the High Court and five in the Supreme Court. This would considerably reduce the cases of judicial inconsistency.
iv. The State must ensure that police, investigating agencies, procedural laws and judiciary act in such a way that the culprit shall be arrested and awarded appropriate sentence promptly.
In view of the present deteriorating law and order situation in India, total abolition of death penalty would mean giving a long rope to dangerous offenders to commit murderers and heinous crimes with impunity.[77] When a clemency petition is rejected by the President, it is submitted, it shows that the whole nation and its all institutions are, though indirectly, in favour of executing that particular offender as President acts on the aid and advice of Council of Ministers[78] and this Council of Ministers represents all Indian citizens’ voice.[79] Moreover, the present direct consensus of the public is also in favour of retention of death penalty as evident from the raising demands of awarding death penalty for rapists and spurious drugs sellers by several feministic and social activists, legal luminaries and parliamentarians. Therefore, keeping in mind the maxim ‘Salus populi est suprema lex’ proper approach to issue, perhaps, will be that death penalty must be retained for incorrigibles and hardened criminals but its use should be limited to ‘rarest of rare’ cases. The courts may make use of death penalty sparingly but its retention on the statute book seems necessary as a penological expediency. May it be concluded that capital punishment should not be given capital punishment!
© Faculty of Law 2005.
[1] Pillai, P S A, Criminal Law, 9th Ed., Butterworths India, New Delhi, 2000, p. 286.
[2] Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916, 946.
[3] Should capital punishment be abolished? , The Times of India, June 27,2004.
[4] Dhananjay Chatterjee was to be hanged on 26th June 2004 but his execution was postponed on acceptance of mercy petitions for reconsideration by His Excellency Dr APJ Abdul Kalam. Finally, he was hanged by neck till death on 14th August 2004 at 4 a.m.
[5] Gallows for seven in Kolkata American Centre attack, The Times of India, April 27, 2005.
[6] Gaur, K D, Criminal Law: Cases and Materials, 3rd Ed., Butterworths India, New Delhi, 1995, p. 295.
[7] Infra n. 34.
[8] Paranjape, N V, Criminology and Penology, 11th Ed., Central Law Publications, Allahabad, 2001, p.184.
[9] Of all the methods of administering the capital punishment, hanging has been the most widely used.
[10] Siddique, Ahmad, Criminology: Problems & Perspectives, 4th Ed., Eastern Book Company, Lucknow, 1997, p. 124.
[11] Ibid. p.125.
[12] (1972) 408 U.S. 238.
[13] (1976) 428 U.S. 153.
[14] Supra n. 8, p. 191.
[15] Supra n. 3.
[16] S. 302.
[17] S. 303. This Section has been struck down by the Hon’ble Supreme Court in Mithu v. State of Punjab, AIR 1983 SC 473, as void and unconstitutional being violative of both Articles 14 and 21 of the Constitution. It regards life convicts to be dangerous class without any scientific basis and thus violates Article 14 and similarly by completely cutting out judicial discretion, it becomes a law which is not just, fair and reasonable within the meaning of Article 21.
[18] S. 305.
[19] S. 307.
[20] S. 396.
[21] S. 194.
[22] S. 121.
[23] S. 132.
[24] S. 354(3) of Code of Criminal Procedure, 1973.
[25] State of Tamil Nadu v. Nalini & others, AIR 1999 SC 2640.
[26] Matloob v. State (Delhi), (1997) 3 crimes 98 (Del).
[27] AIR 1999 SC 2640.
[28] (1973) 1 SCC 20; AIR 1973 SC 947.
[29] AIR 1979 SC 916.
[30] AIR 1980 SC 898; (1980) 2 SCC 684.
[31] AIR 1992 SC 395; 1992 SCC (Cri) 24.
[32] Supra n. 30.
[33] In Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964, O. Chinnappa Reddy, J. defined ‘special reasons’ as to those reasons which are special with reference to the offender, with reference to the constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences, etc.
[34] In Ravji v. State of Rajasthan, (1996) 2 SCC 175, a Division Bench observed that ‘it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial’.
[35] AIR 1983 SC 957; (1983) Cr. LJ 1457.
[36] In Anshad v. State of Karnataka, (1994) 4 SCC 381, Dr AS Anand, J. held that the number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of ‘rarest of rare’ cases.
[37] (2005) 3 SCC 793.
[38] (2001) 2 SCC 28; 2001 SCC (Cri) 278.
[39] Supra n. 27.
[40] AIR 1989 SC 1335; (1989) 1 SCC 678.
[41] Article 72 and 161 provide the power of the President and the Governors respectively to grant pardons, etc. and to suspend, remit or commute sentences in certain cases.
[42] About the Death Penalty, Amnesty International USA, Available at: http://www.amnestyusa.org/abolish%20/%20worldwide.html (visited on June 8, 2005)
[43] TV Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361(2).
[44] Supra n. 29.
[45] AIR 1978 SC 1542.
[46] Supra n. 33.
[47] Capital Punishment Brutalizes Society, The Times of India, May 05, 2003.
[48] Attack on Parliament in Delhi, Akshhardham temple in Gujrat and other similar incidents after the enactment of Prevention of Terrorism Act, 2002, strengthen this submission.
[49] Capital punishment is awarded in only rarest of rare cases. See supra n. 30 and 35.
[50] e.g. in Bachan Singh’s case Bhagwati, J. was dissenting.
[51] (Tripathi NM 1979) pp. 199-219.
[52] Supra n. 33.
[53] Ketan Mukhija & Rohan Menon, The methods of execution of the death penalty in India –should it be reformed?, Criminal Law Journal, Vol.110, Part 1252, April 2004, pp. 97-102
[54] Supra n. 40.
[55] (1999) 1 All ER 50.
[56] AIR 1983 SC 465.
[57] AIR 1987 SC 1346; (1987) 3 SCC 80.
[58] Infra n. 76.
[59] (1996) 2 SCC 175; 1996 SCC (Cri) 225.
[60] Supra n. 30 and 35.
[61] S. 235 (2) of The Code of Criminal Procedure, 1973.
[62] Id. S. 366.
[63] Id. S. 416.
[64] S. 54.
[65] S. 433(a) and S. 434.
[66] Supra n. 3.
[67] Infra n. 76.
[68] Exception 1 to Section 300 of India Penal Code, 1860.
[69] Article 19 of the Constitution of India.
[70] Supra n. 30.
[71] Capital punishment should be abolished, The Times of India, June 26, 2004.
[72] Supra n. 68, S. 340.
[73] Id. S. 77.
[74] Id. Chapter IV (General Exceptions) and S. 299.
[75] indiatimes.com POLL, June 26, 2004.
[76] Dr A S Anand, J. in Dhananjay Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
[77] Supra n. 8, p. 213.
[78] Supra n. 69, Art. 74.
[79] Id. Art. 80 and 81.
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© Praveen Kumar Jain
