Introductory Remarks

Powerful argument for the abolition of death penalty is based on the Report of the Royal Commission on Capital Punishment. “There is no clear evidence … that the abolition of capital punishment has led to an increase in the rate, or that its reintroduction has led to a fall.”[1] In pursuance of this report, the British government abolished death sentences by passing The Murder (Abolition of Death Penalty) Act 1965. Statistics show that death sentence has not produced the desired result. If it really does deter, then there ought to be a lesser number of homicide in places where the penalty is retained than where it has been abolished.[2] In India, crime rate is high in spite of having death sentences where as European countries abolition of death sentences has not resulted into reduction of crime. The Indian Law Commission cites the following reasons for the retention of death sentences:[3]

1. Capital punishment acts as deterrent. “Do we want more of Murders in our country or do we want less of them?
2. Danger criminals need to be eliminated to protect the society.
3. The life of police and prison staff cannot be put into risk by not awarding death sentences to danger criminals.
4. If danger criminals are not hanged, they are likely to repeat the offence after their release.
5. Where death sentence is abolished, the crime rate is very low but that cannot be in India.
6. Public opinion is substantially in favour of capital punishment otherwise, it leads to lynching.
7. Imprisonment of criminals leads to problem of prison administration and taxpayer money has to be utilized for maintenance of criminals that is unjust.
8. Capital punishment is a painless and less cruel than life imprisonment.

There are some justifiable grounds for abolition of death sentences:

1. It is revengeful.
2. Destruction of life is not a wish of God or nature.It is immoral. Society has no right to take life that is incompatible with modern morality and human rights.
3. India believes in non-violence philosophy.
4. Death sentence is unjust for the family of offender.

Legislative and Judicial Analysis

Irretrievable error of justice is most practical reason for its abolition.Unlike life imprisonment, executed death sentences would not give opportunity to judiciary to correct its error of judgment. In the late 1990s, a powerful new challenge to death penalty emerged the risk of executing innocent people. Aided particularly by the availability of DNA testing, more than 116 death row prisoners have been exonerated (declared to be not guilty) and realized from prison from 1977 to 2004 in USA.[4] This information leads to the logic that some other innocent might have been executed. Abolitionist of death sentence encases on this. The main reason for earlier day’s death sentences is lack of prison infrastructure. With arrival of means and facilities to confine criminals indefinitely, even for life, abolitionist started questioning ethical proprietary of death sentences and right of society to take life in order to protect life.Many experts have questioned whether a capital punishment has any greater deterrent value than a sentence of life in prison without parole. When criminals are sentenced for life, long sentences inside the prison without liberty, luxurious comfort, isolated from family, friends, and society that would be more ideal painful deterrence than death. Inconsistency in awarding death sentences strengths the argument of abolitionist. USA Supreme Court in Furman v. Georgia by highlighting these remarks and suspended death sentences in 1972. It is worth to quote Justice William Douglas’ words,[5]

“It is the poor, the sick, the ignorant, the powerless, and the hated who are executed…[The law] leaves to the uncontrolled discretion of judges and juries the determination of whether defendants committing these crimes should die or be imprisoned…These discretionary statutes are unconstitutional.”

Indian Supreme Court has laid down that death sentences would be given in ‘rarest of rare cases.’ Further Court held that the judges discretionary power to impose the death sentences, are well guided by the Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure 1973 which do not offend Articles 14 and 21 of the Constitution.[6] Yet people’s mind is not free from the fact that it is judges who decide between life and death of criminals because even in similar cases there is different findings. In Dhananjoy’s case who raped and killed a 14 year girl was given death sentence. In State of Maharashtra v. Mansingh, the accused who had committed rape and murder of 8 yearminor girl was awarded life imprisonment by Supreme Court.[7] In another similar case, the Supreme Court awarded life imprisonment.[8] Abolitionist maintains that death sentences statistics reveal that criminal justice system disproportionately singles out least advantaged members of society for execution. Those who are wealthier, more educated and more socially connected rarely, if ever, receive death penalty; in their view the message is actually conveyed that there are two standards of justice.

Conclusion

Certainty of punishment is much more important than the severity of punishment otherwise death sentences would not have the desired result. Factors like appeal, revision, mercy petition and delay in execution of death have diminished the deterrence of death and ultimately became Constitutional grounds for converting the death sentences to life imprisonment.[9]Another ground against death sentences is that, it is carried in private and relatively low number of execution that lessens the deterrence value of punishment. Counter argument is that, it is in fact the result of abolitionist’s opposition. State tries to satisfy the opponents of death sentences. Hence, it is executing privately and rarely.

Bentham justifies death sentences in extraordinary occasions like civil wars.[10] When life itself is at risk, any threat of lesser sanction and confinement is unlikely to have any great impact on the soldier tempted to save his life by deserting the battle of war field.Terrorist incidence, like 9/11 and 26/11 demand nothing shorter than death sentences.[11]America’s 2/3^rd population supported the death sentences.[12] India has not abolished death sentences even though it has signed the International Covenants on Political and Civil Rights. Proponents of death sentences believe that the law should place less value on the life of convicted murder than on victim. Indian Law Commission observed, “Argument that may be valid in respect of other countries may not necessarily be valid for India. Unlike Western Countries, education, prosperity, homogeneity and viability are sadly absent in many parts of India. Punishment should bear a just proportion to the crime. Therefore, capital punishment is only punishment for those who have deliberately violated the sanctity of human life”.[13] Further, it said, even if the principle of abolition is accepted the time is not yet ripe in India. Law Commission concluded that State has every right to execute certain violent criminals in order to uphold and preserve greater social value. Failure to satisfy the public sense of justice may lead to loss of respect to authority of law.

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[1]Friedman,W., Law in a Changing Society, (2^nd Ed.) (Delhi: Universal Law Publishing Co. Pvt. Ltd. 2008).

[2]Id.

[3]Law Commission of India’s Thirty Fifth Report on “The Capital Punishment.” pp. 53-66

[4]Harry Hendrenson, Capital Punishment, (3^rd Ed.), (New York: Facts on file, Inc, 2006)

[5]Id.

[6]Bachan Singhv. State of Punjab, AIR 1980 SC 898.

[7](2005) 3 SCC 131.

[8]Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3 SCC 127.

[9]Trivenibenv. State of Gujarat, AIR 1989 SC 142.

[10] Supra note 8

[11]Plane highjack and attack on WTO and other various places in USA by terrorist on 11^th September 2001, and Terrorist attacks on various places in Bombay on 27^th November 2008

[12]Harry Hendrenson, Capital Punishment, (3rd Ed.), (New York: Facts on file, Inc, 2006)

[13]Glanville Williams., Textbook of Criminal Law. (2nd Ed.), (Bombay: N.M. Tripathi Private Ltd. 1983).

About the Author:

Tejas Sateesha Hinder, B.A LL.B, 2nd Year, National Law Institute University, Bhopal