- Introduction
Law interacts with human behavior in every walk of life; legal machinery being an instrument of Social change. It becomes a necessary when imposing new patterns of social behavior upon society.[1] While punishment is a method through which the lawmakers ensure the law’s protection and enactment, the death penalty in effect involves the infliction of the highest and extreme penalty. It is a supreme method of punishment since it affects the very existence of human life.
The death penalty has been defined as the social condemnation of a person to death, who had taken away the life of another person in a premeditated and gruesome manner without any regard for the life of the victim and without any sense of being shameful or mindful of the consequences of his act.
While the history of capital punishment is a long one, the modern trend in this regard has been to limit its usage with a view towards abolition. However, there are still many nations and states that have retained the death penalty within their penal codes for the punishment of heinous crimes. This interplay between the abolitionist and retentionist movements has resulted in a heated debate regarding the utility and the constitutionality of the death penalty with important legal and theoretical discourse communities on both sides of the divide.
The following chapters will analyse the theories of punishment, which govern the criminal justice system, the history of capital punishment, as well as its application and standards therein within and without India. With such a backdrop, it will lay down the arguments given by those that advocate the retention of the death penalty and then attempt to counter them by elucidating the arguments brought forward by the abolitionists.
The project will attempt to prove through such an analysis, that the taking of another person’s life is morally indefensible and goes against the basic tenets of human dignity and that the taking of a life by the state in the name of the law has failed to justify its existence since it is neither a deterrent or a preventive measure against crime and criminal behavior.
“Whoever imposes severe punishment becomes repulsive to the people, while he who awards mild punishments becomes contemptible, but whoever imposes punishment as deserved becomes respectable.”[2] – Kautiliya
“Dread of the rod alone restrains the bad, controls the good and makes a nation strong. The king must punish fearlessly…else the strong would oppress the weak…It is the fear of punishment of the person and of the grave risk of forfeiture of life which restrains section of the population from criminality.”[3] – Manu
While the term punishment has not been defined in the Indian Penal Code, it is understood to mean a social response which occurs in the event of a violation of a legal rule, and is imposed by those persons authorised by the legal order from which the rule finds its origin.
Punishment would, therefore, involve the suffering of consequences, which would normally be deemed unpleasant and would include the expressed disapproval of the offender. Thus one could deduce that the purpose of punishment would be to prevent the commission of any acts injurious to society and deter prospective criminals from committing such crimes while punishing those who commit an offence.
Crime and punishment have a complex interrelationship, which should be kept in mind when punishing an offender. According to the interpretation given to criminal justice and punishment by the supreme court, it was declared that the nature of the crime and not the criminal should be the basis for punishment.[4] While the modern state has undertaken the responsibility of protecting its citizens it has also introduced a criminal justice system to facilitate the gradual reduction of criminal behaviour.
While some may argue that the purpose of a system of punishment is to ensure that crime does not go unpunished and that the victim as well as society would feel that justice had been done to it, greater awareness regarding the human rights of the individual and the importance of reformative penal sanctions together with the rights of the prisoner to protection from all forms of violence that may be contrary to constitutional norms, have given rise to the condemnation of bureaucratic and anarchic regulations pertaining to crime prevention.[5]
This is because the purpose of punishment is neither to torment the criminal nor to undo his crime. The end of punishment is to reform the criminal and deter others. The punishment should be such that it makes a long-lasting impression upon the criminally intended with least suffering upon the criminal. Therefore punishment should not merely be an act of social disapproval of the wrong done by the offender but if it is to ensure the protection of the moral order, should inevitably be something good and useful. It should most certainly not be the mere infliction of pain in a useless manner.[6]
Punishment is counter-productive when it prevents a person from providing for his dependents. However, the worst effect of punishment and the one that most systems seek to prevent is that which leaves the prisoner more embittered and brutalized than he was when he entered the prison. For punishment cannot work through regressive methods since repression does not root off criminal desire.
There are many theories regarding the objectives of punishment. They are often used as a yardstick, by which to measure the success of a penal sanction. One such theory is that of deterrence. According to this theory punishment strikes fear and awe into the minds of the potential criminal, by making the offender an example to them. Proponents of this theory believe that it is only such a fear that keeps an offender on the right path and away from criminal tendencies. Thereby punishment provides a tangible motive through which men are prevented from infracting the laws of society and plunging it into its original chaos. Another theory focuses on prevention. Accordingly, it is claimed that punishment ensures that the criminal does not repeat the crime. This is achieved through incapacitating him from committing any further crimes by the imposition of jail terms etc.[7]
The retributive concept of punishment, which has been rejected by most judiciary systems as a valid justification, offers recompense to the victim for the offence caused to him. However, retribution is weaved into the penal code by legislators and the judiciary alike; who believe that law should ideally be harsh, hard hearted, and if not corrupted, blind and impartial. The justification for such a theory is partly based on the fact that the prisoner through his misdeeds invites such a penalty upon himself. Further the Supreme Court in the case of Surjaram v. State of Rajasthan, held that it was the duty of the court to ensure that the victim of the crime as well as society had the satisfaction that justice had been done to it. However, the opposition to such a line of thinking is formulated around the point that it could never be right to harm someone no matter the wrong he may have inflicted upon society.
The reformative theory is one, which has drawn much attention from the legislators and the policy makers, and provides the antitheses to that of retribution. This theory considers the criminal to be a product of the society we live in and that we owe it to him to attempt to reconcile with his past through rehabilitation etc. rather than exterminate him from our surroundings.
While there are many such theories which guide the criminal justice system and the awarding of punishments within it, what ought to be policy at a certain time should be reviewed in light of the general trends away or for a certain practice. This is particularly so since most theorist have rejected the contention that it succeeds in its desired goals of deterrence, penitence and rehabilitation. Rather punishment is viewed to be little more than a true manifestation of that revengeful power seeking and instinctive domination which society might adopt as a form of rationalised self- protection.
[1] A. Kumar, Capital Punishment; New Trends, Cochin University Law Review, Volume 4, 1980, p.173.
[2] M. Shamim, Capital Punishment, Cri .L.J., 1989, p 54
[3] A. Ross, Guilt Responsibility and punishment, p 39. As quoted in A.Kumar, Capital Punishment, new trends, Co chin university, Law review, Volume 4, 1980 p 155
[4] M.S.Srinivas, Sentence of death in India; need for reconsideration , Cri.L.J.,1988, p.62
[5] D.C.Pandey, Criminal Law, Annual Survey of Indian Law, 1980, p 452
[6] M.Singh, Death Sentence; rethinking in terms of abolition, Cri.l.j.,1989, p128
[7] Cesare Beccaria, “On Crimes and Punishments”, in J.Munica ed., Criminological Perspectives, sage , New Delhi, 1996, p.4