He killed a person brutally. He was brought to the Court. The Court sentenced him to death and consequently he was hanged to his death. Is justice sought? We are basically killing the killer to show that killing is wrong. This is nothing different from creating a war to achieve peace! Of course, a dead person can not commit any future crimes. However, the purpose of criminal punishment is not only the prevention of new crimes by convicts and other persons. Criminal liability is aimed at correcting the offender and contributing towards the restoration of social justice. Criminal liability, as well as justice in general, should not be an act of avenging the victim. It is impossible for a killed man to understand his actions and repent.
INDIAN JUDICIARY ON DEATH PENALTY:
The Supreme Court of India as the highest Appellate authority of India has given its authoritative decisions on various points of law. Likewise, the apex court has also examined the constitutional validity, procedure and many other issues related to the imposition of capital punishment.
In Attorney General of India v. Lachma Devi(1985), it has been held that the execution of death sentence by public hanging is barbaric and violative of Art. 21 of the Constitution. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime need not necessarily have to be visited with a barbaric penalty such as public hanging.
In the case of Rajendra Prasad v. State of U.P.,(1979), Krishna Iyer, J., held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society. He held that giving discretion to the Judge to make choice between death sentence and life imprisonment on ”special reason” under Section 354 (3) of Cr.P.C., would therefore be violative of Art.14 which condemns arbitrariness.
In contrary to the judgement of the above cases, the courts in majority of the cases held the view that imposition of death penalty is not opposed to the supreme law of the land.
In Jagmohan Singh v. Uttar Pradesh(1973) , the validity of death sentence was challenged for the first time on the ground that it was violative of Art.19 and 21 because it did not provide any procedure for depriving a person of his life. It was contended that the procedure prescribed under Criminal Procedure Code was confined only to the findings of guilt. However, the Supreme Court held that the choice of awarding death sentence is done in accordance with the procedure established by law. The Judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial. Accordingly, the Court held that the capital punishment was not violative of Arts. 14, 19 and 21 and was therefore constitutionally valid.
In Bachan Singh v. State of Punjab(1980), the Supreme Court by 4:1 majority overruled Rajendra Prasad’sdecision and held that the provision of death penalty under Section 302 of I.P.C. as an alternative punishment for murder is not violative of Art. 21. Art. 21 of the Constitution recognizes the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. The Court further held that the ‘public order’ contemplated by clauses (2) and (4) of Art. 19 is different from ‘law and order’ and also enunciated the principle of awarding death sentence only in the ‘rarest of rare’ cases.
In Deena v. Union of India(1983), the constitutional validity of Section 354 (5), Cr.P.C., was challenged on the ground that hanging by rope as prescribed by this section was barbarous, inhuman and degrading and, therefore, violative of Art. 21. The Court held that Section 354 (5) of the Cr.P.C., which prescribes hanging as mode of execution lays down fair, just and reasonable procedure within the meaning of Art. 21 and hence is constitutional.
In Smt. Shashi Nayar v. Union of India and others(1991), the Supreme Court bench once again upheld the constitutionality of the death penalty. The Court did not go into the merits of the argument against constitutionality, arguing that the law and order situation in the country has worsened and now is therefore not an opportune time to abolish the death penalty.
However, death sentence cannot be imposed if the following two reasons are satisfied.
1. When the judges hearing the case had not reached unanimity in the question of sentence or of guilt
2. When the accused had previously been acquitted by a lower court.
IS THE DEATH PENALTY CONSTITUTIONALLY VALID?
Every legislative, executive as well as judicial decision should be constitutionally valid. That is, it should not be outside the scope of the constitution. However, the imposition of death penalty is violating the basic structure of the constitution by way of violating Art.14 and Art.21 of the Indian Constitution.
1. Violation of Article 14 of the Constitution
Article 14 of the constitution reads as follows:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
According to the judgement given in Bachan Singh case, death penalty can be imposed only in rarest of rare cases. The aforementioned doctrine is clearly violative of Article 14, since it does not function under any established guidelines or framework. That is, there is no law enacted by the legislature which provides the conditions or essentials to be satisfied for the imposition of death penalty. Under this doctrine, a judge has the discretionary authority to apply the law of capital punishment at his/her own will. Thus the doctrine is in itself enabling the judicial authority to discriminate. Though it may be argued that the judges are trained to be unbiased, he/she is still prone to the whims of subjectivity, socialization, and human nature. Without a framework, a judge will impose death penalty according to his/her own belief system. And the decision based on one’s belief system may seem right to one person but may be wrong to the other person. Thus the arbitrariness in the imposition of death penalty clearly violates Art. 14 of the Constitution.
2. Violation of Article 21 of the Constitution
Article 21 of the constitution reads as follows:
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
According to the principles propounded in the Maneka Gandhi case, the procedure for depriving someone of their life or liberty or both must be reasonable, fair and just. However it is clear that the Supreme Court has not prescribed any procedure to begin with. The decision to take someone’s life or liberty is based on personal discretion subject to biases and flaws in human nature. Since there are no established guidelines for judges to follow, the procedure cannot be deemed reasonable, fair or just. Since the procedure is neither fair nor reasonable the practice of depriving a person of his/her life cannot be justified. Thus Article 21 is clearly violated in the present case.
The common argument which most people will have for justifying the imposition of death penalty is that it serves as an effective deterrent against future crimes. That is, the criminals will hesitate to commit grievous crimes if the imposition of death penalty is in force. But, this is an argument which is based entirely in theory, and has no statistical or empirical data evidence backing it. There is no denying that there can always be a margin of error in a conviction, and an innocent could wrongly be sentenced to death, taking away his/her rights under Articles 14, 19 and 21 for no reason. With a Constitution which is so committed to protecting the rights and the dignity of the individuals, even the possibility of an error should be enough to disallow the passing of the death sentence. Capital punishment therefore doesn’t seem to serve any constitutional end.
Thus the death penalty is in no way contributing towards the achievement of justice. The death penalty is treating criminals as non humans who should be eradicated from the society. The principle behind death penalty is ‘an eye for an eye and a tooth for a tooth’. This is the principle which was followed for the administration of justice nearly a century ago! Death penalty is neither going to reform the criminal nor is going to bring the victim back to life. Therefore, it is only wise for a civilized society like India to abolish death penalty altogether and go for a reformative method of punishment.