Introduction
There is a long quest of human beings to curb and control deviance and promote conformity to normative behavior in human culture since time immemorial. Various ways and means have been attempted in this direction. The criminologist, jurist, sociologist and legal professionals have dealt with various aspects of crime and the penal system. Death penalty is one of the most debated ancient forms of punishment in almost all the civilized society.
Since many countries have joined the abolitionist rank in exceptional number on the ground that it is gross violation of human rights. As a matter of fact, many countries have enshrined the abolition of death penalty in their Constitution to demonstrate the significance of human rights in their legal system. Death penalty viewed as a pre-mediated form of killing. This is carried out in the name of punishment. It is barbarous in nature since all methods of execution involve a greater amount of pain to the person being executed as well as his family member. Hence it is believed that till such advanced technology has not developed that the execution can be carried out an immediate and pain less manner. Death penalty should not be administered it is also believed that the death penalty does not serve an instrument of deterrent which is regarded as its main objectives by the pronouncement of death penalty. Death penalty is therefore futile and this is evidenced by the fact that its abolition has had no such adverse impact on crime rates of the countries which is abolished it. Further it also denies the possibility of rehabilitation and reformation of criminals.
Death penalty runs the “risk of irrevocable error” as many are denied the opportunity of a fair trial or they grapple with issues relating to the adequate legal representation. Hence the international community condemns the use of death penalty on the ground of human rights violation. Many courtiers have already withdrawn the provisions of death penalty, while others are trying to retain it. Currently, there are 58 nations which actively participate it and 95 countries have abolished it by not using it for at least 10 years.
The doctrine of “rarest of rare” has undoubtedly determined the course of judicial pronouncement on death penalty in India. But it is not free from criticism. Many critics have pointed out to be very ambiguous and amenable to varied interpretation. Internationally, India continuous to remained in an ambiguous position. It is party to the International Convention on Civil and Political Rights (ICCPR) that came into force on December16, 1976 and require countries to move towards the abolition of death penalty.
The strongest criticism has been given by Justice Bhagavathi. He stated that the doctrine has given rise to a great amount of subjectivity in decision making, and whether or not a person would live or die would depend upon the composition of the bench. He also states that it is a violation of article 14 and 21 of the Constitution of India. He cautioned in the context of decided cases that there is a potential danger that the power shall be exercised arbitrarily by the various High Court as well as Supreme Court.