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Capital Punishment
"A society which felt neither anger nor indignation at outrageous conduct
would hardly enjoy an effective system of law" - Salmond.
Unlike animals, human beings in the course of time have upgraded their social
standards in which they reside and where they can claim to be proud residents
of a protective society, where they have a prerogative claim to basic civic,
political, economic and legal rights, where state watches and prevails over
crime and they are also the recipients of persistent and unwavering justice,
which being stringent ensures that any slight deviation from time-honoured and
accepted behaviour by any citizen brings them under the austere eyes of the law
which then helps in preserving the fabric of the society and the efficiency of its
social network which de facto is one core reason why we (should) have capital
punishment as a tool and aid to be used as a deterrent; it has been universally
supported by the great political thinkers like John Locke who propounded his
concept of capital punishment containing elements of retributive and utilitarian
theory, where he contends that a person forfeits his rights for the commission of
even minor crimes and once such rights are forfeited, punishments can be
rightly pronounced on them as they have made a breach to the social contract to
which they had agreed and the remedy is punishment to the wrong doer which
in itself is an endeavour to darn the damage done to the social fabric and by the
same raison d'tre capital punishment too is justified for the following reasons:
(1) from the retributive side, criminals deserve punishment, and,
(2) from the utilitarian side,
http://advocatesivasubramanian.lawyersclubindia.com/articles/Capital-Punishment-1561.asphttp://advocatesivasubramanian.lawyersclubindia.com/articles/Capital-Punishment-1561.asphttp://advocatesivasubramanian.lawyersclubindia.com/articles/Capital-Punishment-1561.asp8/4/2019 Capital Punishment New
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Punishment is needed to protect our society by deterring crime through such
examples, thus society may punish the criminal in any way it deems necessary
which may include taking away his life so as to set an example for other would-
be criminals and is further justified for the reason that the acts which are so vile
and destructive for society and dignity of the people
Invalidating the right of the perpetrator to membership and even to life, because
preciousness of life in a moral community must be so highly honoured that
those who do not honour the lives of others make null and void their own right
to membership, which is why in a community based on love and ideals when
made to face the music of hostility and having to deal with people who have
committed brutal acts of terror, violence and murder, face a dilemma by the
way of the set of ideals the community propagates; it cannot imbibe the
philosophy of "an eye for an eye, a tooth for a tooth, and a life for a life" but
would be forced to act for the safety of the members of the community from
further destruction and would have to treat the perpetrators who had shown no
respect for life to be restrained, permanently if necessary, so that they could not
further endanger other members of the community which would leave a sense
of satisfaction and happiness to all with whom the wrong has been done or
relatives of the victims and to society as such, if he who breaks the law is not
punished then he who obeys it is cheated which can also be rightly
corroborated from the utilitarian and retributive perspective of capital
punishment.
For example as per the utilitarian perspective, capital punishment when
pronounced prevents the criminal from repeating his crime or deters crime by
discouraging would-be offenders and both of these contribute to a greater
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balance of happiness in society and according to the retributive notion of
capital punishment criminals deserve punishment, and punishment should be
equal to the harm done and for determining what counts as "punishment equal
to harm," theorists further distinguish between two types of retributive
punishment which are lex talionis where retribution involves punishment in
kind and is commonly expressed in the expression "an eye for an eye", and lex
salica, where retribution involves punishment through compensation, and the
harm inflicted can be repaired by payment or atonement and historically.
Article 21 of the Constitution of India states No person shall be
deprived of his life except according to the due process established by law.
There is a great possibility that the due process established might not be
followed as per the prescribed law.
In Makhan Singh Tariska v. State of Punjab, Before a person is
deprived of his life the procedure established by law must be strictly followed
and must not be departed from to the disadvantage of the person affected.
InRajendra Prasad v. State Of Uttar Pradesh, Justice V.R.Krishna Iyer
was of the opinion of not imposing death penalty. He quoted Benjamin N
Cardozo from The Nature of the Judicial Process by saying, If judges have
woefully misinterpreted the mores of their day, or if the mores of their day are
no longer those of ours, they ought not to tie, in helpless submission, the hands
of their successors. Honble Judges have to shed their traditional way of
looking at death penalty and take a lighter stand towards the convict.
They should break the usual practice and speak out the pulse of human life and
dignity. They should not be helpless and submit themselves to this horrendous
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practice. They should set a benchmark to human life and its existence with
dignity. He quotes Lok Nayak Jayprakash Narayan by saying, To my mind, it
is ultimately a question of respect for life and human approach to those who
commit grievous hurts to others. Death sentence is no remedy for such crimes.
A more humane and constructive remedy is to remove the culprit concerned
from the normal milieu and treat him as a mental case. I am sure a large
proportion of the murderers could be weaned away from their path and their
mental condition sufficiently improved to become useful citizens, in a minority
of cases, this may not be possible. They may be kept in prison houses till they
die a natural death. This may cast a heavier economic burden on society than
hanging. But I have no doubt that a humane treatment even of a murderer will
enhance man's dignity and make society more human.
In an American case, Field J. in Munn vs. Illinois stated By the term
life we mean something more than survival and not merely animal existence.
It also includes the use of the limbs and faculties of the body which the body
communicates with the outer world.. Life is the most precious thing that a
person can have, absence of which questions the very existence of mankind.
The Honble Supreme Court should keep in mind the best interest of the society
while awarding death sentence to the accused. This Honble Court should take
into consideration whether the established law has been followed in black and
white.
In a case ofK. Venkatesh v. State of Andhra Pradesh, where the
Andhra Pradesh High Court did not give the patient Right to Die or Euthanasia.
When a person can be denied his Right to Die by a Court then a how Court take
away the life of the person? As Mahatma Gandhi quotes, Destruction of
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individuals can never be a virtuous act. The evil doers cannot be done to death.
Today there is a movement aloof to abolish death penalty. The prisons need to
be converted into hospitals as if they are persons suffering from a disease.
Justice V.R. Krishna Iyer quotes, The spirit of a man is at the root of
Article 21 of the Constitution of India, personal liberty makes for the worth of
the human person.
Crime breeds crime and murder breeds murder. The Honble
Courts of this country should keep in mind the best interest of the society while
passing any horrendous sentence like death penalty. The Honble Court mustkeep in mind the morale of the society while passing any judgement like death
penalty.
As Baccaria quotes, All Capital Punishments are wrong in itself and
unjust. There are two ways in which death sentence could be justified. Firstly,
if such a sentence would prevent a revolution against a popularly established
government. Secondly, if the execution was the only way to deter others from
committing a crime. The Court should definitely take into account the pulse of
the society while giving the sentence of death penalty. It should take into
consideration whether the judgement passed would prevent others from
committing the crimes. Death Penalty is not the answer for all the crimes. We
need a humane solution for this.
Death Sentence is the most horrendous and grotesque act. It would be
better for this Honble Court, in the interest of the welfare of the society, to find
a more humane solution to death penalty. Legal vengeance shall not be there
towards the accused. As Justice V.Krishna Iyer asserts in accordance with
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Stockholm Declaration of Amnesty International, Death Penalty is not only
physically but psychologically brutal, referring to the lengthy period between
sentencing and execution as lingering death.He asserts that by application
of death penalty, it contradicts the very sanctity of human life and human
society. He also forcefully asserts that all the civilized countries have abolished
death penalty as a symbol of their respect to human life, and expresses deep
anguish that we in our country still cling to it with little regard to the basic
rights of man.
In a landmark judgement passed by Honble Justice P.N. Bhagwati, in
Bachan Singh Anr. v. State of Punjab, he says and quotes George 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 similars that breed
their kind."
InEdiga Anamma v. State of Andhra Pradesh, Justice V.R.Krishna
Iyer took a lighter stand while evaluating death penalty. He recognised the need
to abolish death penalty. He also envisaged that it as India progresses in this
21st
century there would be a need to give importance to human life and dignity
and also abolish death penalty. He also quoted the Ontario court of appeal
saying that death sentence is irrevocable, grave and serious. He also marks
death penalty as brutal and horrendous. It is a cold-blooded judicial murder.
The Honble Supreme Court in Allauddin v. State of Bihar gave some
guidelines which are essential to impose death penalty. They are
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a) The circumstances of the offender need to be considered apart from the
circumstances of the crime.
Life imprisonment is a rule and death penalty is an exception. Death penalty canbe imposed only when life imprisonment is all together an inadequate
punishment.
The Court should also consider the aggravating and mitigating factors of the
case and full weightage has to be given to the mitigating cicumstances or
factors.
The punishment for all murders is not death penalty. The Honble
Justice Sarkaria in Maneka Gandhis case says that Section 302 of Indian Penal
Code does not violate the provisions of the Article 21 of the Constitution of
India. He also says that the Founding Fathers of Indian Constitution considered
death sentence for murder or the prescribed traditional mode of its execution as
a degrading punishment which would defile the dignity of the individual
within the contemplation of the preamble to the Constitution. The Honble
Judges might be of the view that by awarding the death sentence to the accused
they have given justice to the aggrieved party. But this would have feeble affect
on the crime rate. Death Sentence is similar to the murder of a person. It is, in
short, a judicial murder. This is a judicial assassination of the accused.
The international fraternity is making its own strenuous efforts to abolish
death penalty and create a more humane society and make life worth living for
the convicted. For instance, Article 5 of the Universal Declaration of Human
Rights states that No shall be subjected to torture or to cruel, or to degrading
treatment or punishment. It is enshrined in the very declaration on human
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rights that death penalty need to be abolished as it is a torturous, cruel and
gruesome act. The imposition of death penalty degrades the very existence of
human life.
Article 6(4) of the International Covenant on Civil and Political Rights
that adopted on 16th
December 1966 and came into force on 23rd
March 1976
says, Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the sentence
of death may be granted in all cases.
The main aim of this covenant was to recognise the need to abolish deathpenalty and also to persuade the countries that have not abolished death penalty
to have a more humane approach towards human life.
Europe represents the only world region which has eliminated death
penalty completely. It is a death penalty free zone. Amnesty Internationals
statistics show that only 84 countries have retained death penalty among which
India is one of them. Developments in international instruments certainly
demonstrate an enormous political will to abolish death penalty worldwide and
make right to life a universally and unconditionally implemented standard.
British Justice System has abandoned death penalty for murder for two
decades now (Homicide Act, 1957) without escalation of murderous crime.
Attempts to get round the Murder (Abolition of Death Penalty) Act, 1965 have
failed in Parliament and as Barbara Wooton says, 'Capital punishment thus
appeared to be itself sentenced to death' for murder. To quote the Royal
Commission's recommendation for retention after Parliament has abolished
death penalty is only of historical interest: "After the Abolition Act had been in
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force for over seven years, the Criminal Law Revision Committee considered
whether any further changes in the penalty for murder were desirable. Their
conclusions were almost entirely negative." However, in England capital
punishment had been abolished on an experimental basis in 1965 and was made
permanent in 1970.
The Sixth Protocol of European Convention of Human Rights in 1982 provides
for complete abolition of death penalty in all European member nations.
However, there is no conviction that crime trends could be influenced through,
threat or enforcement of death penalty.
In America also there have been efforts to abolish death penalty. It has
been argued that death penalty has been unconstitutional as a cruel and unusual
punishment. Thus, violating the Eighth Amendment of the Constitution of
United States which says No person shall be deprived of his life except
according to the due process of law.
On 6 June 1995 the South African Constitutional Court declared the
death penalty to be incompatible with the prohibition of "cruel, inhuman or
degrading treatment or punishment" under the country's interim constitution.
Eight of the 11 judges also found that the death penalty violates the right to life.
When an African nation can take such a novel and humane step towards the
life of man then a Democratic Republic India can definitely make a bench mark
by abolishing death penalty in the South-Asian region.
In a paper presented by Amnesty International titled Civil and Political
Rights, Protection of Personal Integrity and Abolition of Death Penalty at the
World Congress on Human Rights held at New Delhi in 1990, studied that
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though there have been several cases posing death penalty, they observed that
the crime rate has not come down. There has always been a frivolous
assumption that death penalty would bring in a kind threat among the people
and would lead to the increase in the crime rate and criminals. A better world is
one without legal knifing on life.
However, to allow death penalty by the state and execute the convicted
offender is no more justifiable than a crime. It is a great miscarriage to justice
and many such innocent persons have been executed.
From the time immemorial this has for long remained a controversialquestion both at national and international level. The issue has been tirelessly
debated on national as well as international level but nothing conclusive has
come out till now. No doubt the problem is of serious nature but the difficulty
involved should not deter us from venturing into the pros and cons involve in
the question. The opinion of intellectuals such as Legal Philosophers, Jurists,
Judges, and other social scientists stands divided. In many countries capital
punishment is an integral part of criminal justice system and it has remained to
be accepted form of justice through the ages though its form may have been
different because of reasons of geography, culture, and the passing of time.
The Indian jurisprudence is a blend of reformative and deterrent theories. While
the punishments are to be imposed to deter the offenders, it is also inalienable
part of Indian penal jurisprudence that the offenders should be given
opportunity for reformation. Bearing in mind these fundamental tenets, the
legislatures drafted Sec. 354 (3) of the CR.P.C.
This subsection basically lays down that special reasons are to be recorded by
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the Court for imposing death punishment in capital offences. Thus, the position
of law after Cr.P.C. 1973 became that the general rule was life imprisonment
while the death sentence was to be imposed only in special cases.
Crime has rightly been described as an act of warfare against the community
touching new depths of lawlessness. The object of imposing deterrent sentences
is threefold:
(1) To protect the community against callous criminals for a long time.
(2) To administer as clearly as possible to others tempted to follow them into
lawlessness on a war scale if they are brought to and convicted, deterrent
punishment will follow, and
(3) To deter criminals who are forced to undergo long-term imprisonment from
repeating their criminal acts in future. Even from the point of view of
reformative form of punishment "prolonged and indefinite detention is justified
not only in the name of prevention but cure. The offender has been regarded in
one sense as a patient to be discharged only when he responds to the treatment
and can be regarded as safe", for the society.
Hobbes asserted that every man had under the natural order has the right of
repraisal for wrongs done to himself or anyone else. Then he said that social
contract had left this right to the sovereign while taking it away from everyone
else. Kant viewed that every political society had a duty to enforce retributive
justice. Rousseau felt that the subject ought not to complain if the sovereign
demanded the subjects life.
He considered death as a proper punishment, if the criminal was beyond
redemption. England abolished death penalty by murder 2. In spite of the
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Murder (Abolition of Death Penalty) Act, 1965 in England death sentence can
be lawfully imposed in cases of high treason, setting fire to Queens ships,
arsenals etc and in piracy with violence. In the Soviet Union Death Penalty was
abolished in May 1947 and in May 1950 it was reintroduced for Treason,
espionage and sabotage and in 1954 for intentional homicide under aggravating
circumstances. French Penal Code of 1810 as amended in 1959 retained Death
Penalty 3. Death Penalty has been retained by the prepatory draft for the
revised Penal Code of Japan4, though it should be invoked with great caution5.
This points out towards the fact that most of the nations are reluctant to do
away with the Death Penalty.
One of the arguments of abolitionists is that death penalty is against Hindu
Philosophy but this will not stand the scrutiny of mythological texts. The
imposition of death penalty in India: appears to go back to ancient times
according to the countrys epics and mythology: stories abound in our
mythology of the destruction of demons who, became a deadly menace to the
life, property and authority of mortals and the divine race alike; tales of
Hiranyakashyapu, Bali and Mahishasura etc.
No doubt religion preaches against killing of human being but that presupposes
an ideal society and if we cannot provide ideal conditions then we cannot of
particular aspect in isolation. The statistics, which talks of absence of any
relationship between death penalty and occurrence of crime, cannot be
straightway trusted for such an important policy decision as that of death
penalty. The statistics derived from a quantitative method may not be an
appropriate method to judge the basic truth about the qualitative aspects of
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those results.
The punishment is retributive in character. The object of sentencing should be
to see that the crime does not go unpunished and the victim of crime as also thesociety has the satisfaction that justice has been done to it lest it may lead to
Lynch Law. There have been instances where victims relative killed the
accused. Criminal Law has its origin in vengeance. Punishment mechanism
revolves around the satisfaction of law-abiding persons anger. Anger is not
always bad but it is the indifference of community towards the circumstances,
which is more harmful. One of the purposes of law is to calm the communitys
anger by punishing the criminal. Anger which is not selfish like greed or
jealously is socially constructive and when it erupts for right cause it should be
rewarded.
Punishment is primarily satisfaction of private revenge and at the same time an
emphatic denunciation of the crime by the society. Any civilized society which
shies away from showing righteous indignation has nothing to distinguish it
from maim soul The Criminal Law stands to the passion of revenge in much the
same relation as marriage to sexual appetite. Retributive punishment tends to
control recidivism.
The theory of deterrent punishment draws its inspiration from the hedonistic
philosophy of Beccarias classical school of criminology. A rigorous and
maximum punishment as against a moderate and lesser punishment helps to
prevent the commission of a crime. For the incorrigibles and habitual and
hardened criminals death penalty is best suited and it is the only method
teaching hardened criminals. The incorrigible and hardened criminal as a rotten
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limb of the society must be eliminated.
The prevalence of recidivism offers a serious stumbling block to a too ready
acceptance of the idea of readily achieved reformation. The recidivist becomesthe criminal who after having experienced rehabilitation treatment returns to
crime and ultimately to prison again to be rehabilitated further. Making murder
a safer proposition, a less deadly proposition for the killer will have a hostile
effect on society.
The capital punishment is an effective tool to curve the grave wrong act
such as of killing and it can also be instrumental in preventing society frombecoming ever more imperfect than it need be.
Previous efforts to abolish the Death Penalty
Legislative attempts to abolish the death penalty in India have failed. Before
Independence a private Bill was introduced in the 1931 Legislative Assembly
to abolish the death penalty for penal code offences. The British Home
Secretary at the time however rejected the motion.
The Government of independent India rejected a similar Bill introduced in the
first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution for
abolition of death sentence in 1958 and 1962 but were withdrawn after some
debate.
The Law Commission in its Report presented to the Government in 1967 and to
the Lok Sabha in 1971 concluded that the death penalty should be retained and
that the executive (President) should continue to possess powers of mercy.
It was held in Jagmohan Singh v. State of U.P. that death sentence act as
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deterrence but as token of emphatic disapproval of the crime by the society,
where the murder is diabolical in conception and cruel in execution and that
such murderers cannot be simply wished away by finding alibis in the social
maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and so also the
general intellectual levels are different. The court referred to the 25th Report of
the Law Commission of India, in which it was stated that India cannot risk the
experiment of abolition of capital punishment. The fact that the possibility of
an error being committed in the matter of sentence can be corrected by appeals
and revisions to higher courts was relied upon.
The approach of our Supreme Court in the matter of death sentence is cautious
as well as restrictive which is in consonance with the modern and liberal trends
in criminal jurisprudence. The doctrine of Rarest of Rare evolved by the apex
Court reflects the humanist Jurisprudence.
There have been ample instances where the Supreme Court has restricted the
use and imposition of death penalty only to cases coming with in the category
of rarest of rare.
Under sec 354(3) of the Criminal Procedure Code, 1973 a new provision has
been introduced to say that when the conviction is for an offence punishable
with death or, in the alternative with imprisonment for life or imprisonment for
a term of years, the judgment shall state the reason for the sentence awarded
and in the case of sentence of death, the special reason for such sentence.
Rarest of rare cases
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Whether a case falls under the category of rarest of rare case or not, for that
matter the Apex court laid down a few principles for deciding the question of
sentence. One of the very important principles is regarding aggravating and
mitigating circumstances. Court opined that while deciding the question of
sentence, a balance sheet of aggravating and mitigating circumstances in that
particular case has to be drawn. Full weightage should be given to the
mitigating circumstances and even after that if the court feels that justice will
not be done if any punishment less than the death sentence is awarded, then and
then only death sentence should be imposed.
In Machhi singh vs. State of Punjab the court laid down: - "In order to apply
these guidelines inter-alia the following questions maybe asked and answered:
(a). Is there something uncommon about the crime, which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favor of the offenders?"
Indispensability of Capital Punishment in India
Life imprisonment in our country is not of much significance as it can be
substantially reduced (limitation is that it cannot be reduced below 14 years).
Life imprisonment under no circumstances should be reduced as it is in most
heinous crimes that the sentence life imprisonment is awarded. Even if this is
accepted still there are other valid objections. Death penalty cannot be removed
or abolished on humanitarian grounds or on the grounds of other alternative
mode of punishment are available. A killer who is a perpetrator of others right
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to live cant claim to have an inviolable right to live.
The focus should be on the mischief flowing from what the criminal has done
to his victim and those near and dear to him and greater attention be paid to
victimlogy and therefore to the retributive aspect of punishment. The
abolitionist needs to shift their focus from criminal to victim, as a killer is a
proven enemy of society. Even if option to decide on death penalty or life
imprisonment is to be given it should be left to the victims family who have
suffered due to the killer and know more about cruelty than the abolitionists.The demand of abolition of death penalty is a demand in wrong direction and
represents a trend reversal when society is considering the issue whether mercy
killing be accepted or not. Death penalty to a killer is a sort of mercy to an
ailing society, which wants to get rid of its enemy. The process of reformation
of criminals with an unascertained record would entail a great risk as a sizable
number of criminals instead of being reformed may be encouraged to commit
offences after offences and become a serious and horrendous hazard to the
society. The question, therefore, is--should the country take the risk of innocent
lives being lost at the hands of criminals committing heinous crimes in the holy
hope or wishful thinking that one day or the other, a criminal, however
dangerous or callous he may be, will reform himself, Valmikis are not born
everyday and to expect that our present generation, with the prevailing social
and economic environment, would produce Valmikis day after day is to hope
for the impossible.
Even for the sake of argument if it is accepted that capital punishment has no
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deterrence then it means that criminal is not afraid of death and it will be
difficult for the state to keep such a person in prison after all it is the fear of
death that keeps a criminal in jail. After all criminal facing life imprisonment
need a single chance to set himself free for taking a revenge from adverse
witnesses and the prosecution who according to him were responsible for
sending him to jail. Judge may also become the victim of his anger. As there is
a saying so long as there is life, there is scope for irrepressible hope and hope
for a break for freedom. A prisoner serving life imprisonment can go on a
killing spree and there can be no further punishment from the punishment he is
already facing. One important question that arises is shall we sacrifice the lives
of future victims in order to spare the life of a murderer. Argument that goes
against death penalty is that the societies do not have the right to take anyones
life since it cannot give life then why to kill soldiers of enemy, terrorist. One
may say what is the need of providing arms to security forces if no human
being can be deprived of his/her life whatever may be the circumstances. Prima
Facie, the penalty of death is likely to have a stronger effect as a deterrent to
normal human behavior than any other form of punishment, though it is
difficult to unravel the innermost recesses of the minds of potential murderers.
The conditions prevailing in some western countries that have abolished death
penalty are incomparable with India. In abolitionist States even the most
notorious criminals are effectively segregated from civil society for the rest of
their natural life.
Contrastingly, in India life sentence can be reduced to 14 years. Our prison
system is inadequate and unable to hold capital offenders for longer periods as
in most western countries. How many times we have read the reports in
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newspaper about recovery of cell phones from prisons and many criminals find
it suitable to operate from jails as they are protected from their rival criminals.
Conclusion:-
"Each extreme is a vice; virtue lies in the middle" - Aristotle
The death penalty is a part of Indian law, and unless it is altered by legal or
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constitutional amendment, it is a given which every judge of every Indian court
is bound to apply, whenever the relevant legal test are fulfilled.
The Indian jurisprudence is a blend of reformative and deterrent theories.While the punishments are to be imposed to deter the offenders, it is also
inalienable part of Indian penal jurisprudence that the offenders should be
given opportunity for reformation. Bearing in mind these fundamental tenets,
the legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection basically
lays down that special reasons are to be recorded by the Court for imposing
death punishment in capital offences. Thus, the position of law after Cr.P.C.
1973 became that the general rule was life imprisonment while the death
sentence was to be imposed only in special cases.
Prima facie, the penalty of death is likely to have a stronger effect as a deterrent
to normal human being than any other form of punishment, though it is difficult
to unravel the innermost recesses of the mind of the potential murderers. The
truth is that some crimes are so outrageous that society insists on adequate
punishment, because the culprit deserves it, irrespective of weather it is a
deterrent or not. Retribution is still a socially acceptable function of
punishment. The instinct for retribution is part of the nature of man. Retribution
and deterrence are not two divergent ends of capital punishment. They are
convergent goals, which ultimately merge into one. Death penalty to a killer is
a sort of mercy to an ailing society, which wants to get rid of its enemy. Anger
which is not selfish like greed or jealously is socially constructive and when it
erupts for right cause it should be rewarded.
Even for the sake of argument if it is accepted that capital punishment has no
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deterrence then it means that criminal is not afraid of death and it will be
difficult for the state to keep such a person in prison after all it is the fear of
death that keeps a criminal in jail. The abolitionist needs to shift their focus
from criminal to victim, as a killer is a proven enemy of society.
But everyone else and by this reformative step individuals will either be
deterred or swerved from the thought process of killing a human being, which
can be characterized as the ending of a sentence in any literature, only the
author has the privilege to end the sentence, none other is privileged to do, andfor he same rationale, one has the privilege to decides ones life and anyone
who willingly snatches and disturbs that privilege loses his own and the state
thus by implementing capital punishment on these unruly people is genuinely
making an endeavour to paint on the canvas of society the importance of one
life one individual has and it is valued more than anything else and not that it
is implemented to quench anyones draconian thirst and to sum up and
reinforce my argument I quote a piece of folk wisdom prevalent in the land of
Arabia: "Men are not hanged for stealing horses, but that horses may not
be stolen."
If the law is not enforced then cure is enforcement, not repeal. If death
penalty is an evil it is a necessary evil and a criminal chooses this
voluntarily.
To sum it up in the words of Fali.S.Nariman, a senior Supreme Court
Advocate, It is time for India to take consideration of the International hue and
cry which has been going on and take a humane step towards mankind and his
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existence with dignity.