Why Death Penalty Must Continue To Exist? *Hitesh Bhatt INTRODUCTION

Why Death Penalty Must Continue To Exist? *Hitesh Bhatt INTRODUCTION Indian penology is basically guided by the principle of punitive justice guarded by deterrence and revenge. This is contrary to the well-settled principles of rehabilitation and the dictum that one should hate the sin and not the sinner. Death penalty has been a mode of punishment since time immemorial. The primary question which requires an effective answer is - What is the cause behind continuation of Death Penalty in a country governed by largely vibrant constitution like ours? The main reason behind the continuation of death sentence is to deter the society against the grave inhuman conducts prohibited by law. Punitive Theory of Punishment also runs that inhuman acts of gruesome and reprehensible character should get punished in stringent way. Death Penalty was also given in ancient time, prevalent methods of ancient time were crushing by elephant, flaying, boiling to death in oil, throwing from the cliff, Guillotine, strangulation to death, crucifixion, crushing, buried alive, burning at the stake, immurement, keelhauling, stoning, scaphism etc. Contemporary prevalent methods of executing death punishment are hanging to death by neck, intravenous lethal injection, electrocution, gas chamber, firing squad etc. The provision of capital punishment has always been a part of the Indian Judicial system. It was incorporated onto the IPC (Indian Penal Code) right from the beginning in 1860. Similarly, it was also present in the Criminal Procedure Code, 1973. Section 354(3) of the Code of Criminal Procedure makes it obligatory for the trial court to give special reasons for awarding the extreme punishment of death. 1 1 Rustam Kumar Thakur, Death Penalty When & Whether Required ( Manupatra article). 170

The Recent Hype on Death Penalty has made this issue a pertinent problem to ponder upon and wanting an effective redressal. Within last one year, the hardcore criminals like Afzal Guru & Ajmal Kasab who were sentenced to death because of their involvements in Parliament Attacks on 2001 and Mumbai Attacks on 2008 respectively, were hanged till death. Owing to these two executions a debate has been fired up to abolish this rigid and harsh mode of punishment. Many human right activists and jurists have seriously condemned these executions and has termed is as a gross violation of human rights & unconstitutional. Supreme Court at number of times while referring to catena of judicial pronouncements has said "the votaries of no capital punishment'" could not succeed in getting the death sentence removed from the statute book as neither the Parliament nor the Law Commission assented to the abolition. The author delves into the details and provides a detailed analysis on the question of legal acceptance of death penalty with the help of incisive reasonable explanations sanctioned by sound legal principles and elaborate case laws,. LAWS PROVIDING DEATH PENALTY AS PUNISHMENT The execution of death sentence in India is carried out by two modes namely hanging till death and being shot to death. Once death sentence is awarded and is confirmed after exhausting all the possible remedies, the execution is carried out in accordance with Sec. 354(5) of The Code of Criminal Procedure 1973 i.e.' by hanging till death. The Air Force Act, 1950, The Army Act, 1950 & The Navy Act, 1957 provided that the execution has to be carried out either by hanging till death or by being shot to death. 171

The Indian Penal Code 2 provides death punishment for 9 categories of offences namely 3 SECTIONS NATURE OF CRIME UNDER IPC 121 Waging or attempting to wage war, or abetting waging of war, against the Government of India 132 Abetment of mutiny If an innocent person be convicted and executed in 194 consequence of such false evidence to procure conviction of capital offence 302 Murder 305 Abetment of suicide of a minor or insane, or intoxicated person 307 Attempt to murder by a person under sentence of imprisonment for life if hurt is caused 364 A Kidnapping for ransom Dacoity with murder : If any one of five or more persons, 396 who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished After the gruesome Damini rape case which outraged the entire nation, Criminal Law Amendment, has been brought into effect. One of the things added is - S 376 A Punishment for causing death or resulting in persistent vegetative state of victim. 2 The Indian Penal Code, 1860. 3 Ratish Kumar, Death Sentence( http://www.goforthelaw.com/articles/fromlawstu/article19.htm, last accessed on Oct. 23, ). 172

Other Legislations providing Death Penalty as punitive punishment are : 1) The Commission of Sati (Prevention) Act, 1987. 2) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3) The Narcotic Drugs and Psychotropic Substances (NDPS) Act,1985. 4) Explosive substances act, 1908 (as amended in 2001). 5) Prevention of Terrorism Act, 2002 (POTA). 6) Defence and Internal Security of India Act, 1971. 7) Unlawful Activities Prevention Act, 1967 (as amended in 2004). LAW COMMISSION SUBMISSION Law Commission is its 35 th report 4 has thrashed out over about Capital Punishment. 35 th report speaks completely in favour of the capital punishment. The main points given in support to continue with Death Penalty are : 1) Death Penalty acts as a deterrent. 2) It helps in the Elimination of the criminal. When the public peace is endangered by certain particularly dangerous forms of crime, death penalty is the only mean of eliminating the offender. 3) Need to decrease Crimes of Violence. India could be under more danger zone due to increase in heinous crimes, if the capital punishment is abandoned, particularly in respect of the professional criminals. CONSTITUTIONAL VALIDITY OF DEATH PENALTY The questions over constitutional validity of death sentence has been profusely agitated before the highest court many times as Capital Sentence is alleged to violate much cherished beliefs defined under Art. 14, 19 & 21 of the Constitution. The first constitutional challenge mounted against death penalty was in Jagmohan Singh v. State of Uttar Pradesh 5 the court took notice of the question Whether Right to Life is an important facet of Art. 19 or not?. It was said that right to life is basic to 4 Law Commission of India - Thirty-fifth Report (Capital Punishment), 1967, Government of India, Ministry of Law (http://lawcommissionofindia.nic.in/1-50/report 35Vol1 and 3.pdf ). 5 AIR 1973 SC 947. 173

the enjoyment of all freedoms provided under Art. 19 and, therefore, freedom to live could not be denied by a law unless it is reasonable and in public interest. The court responded that if that was the case then Sec. 302 of I.P.C which prescribes Death Penalty passes the above test. The Law Commission in its 35 th Report has also sanctioned the use of Death Penalty in India and, therefore, it is difficult to say that capital sentence as such is unreasonable or not in public interest. It was further argued that no procedure has been laid down as to which case and under which circumstances person will be sentenced death punishment. The judge balances a number of aggravating or mitigating circumstances of the case and records his reasons in writing for awarding the sentence. In Rajendra Prashad v. State of Uttar Pradesh 6 the apex court agreed with the preposition that death penalty deprives the accused of his right to life and other crucial Fundamental rights guaranteed under Art. 14, 19 & 21 of the constitution of India. Special Reasons necessary for imposing death penalty must relate, not to the crime, as such, but to the criminal ( Justice V.R. Krishna Iyer ). The crime may be shocking and yet the criminal may not deserve death penalty. The extreme penalty can be invoked only in extreme conditions. Because of difference of interpretations given by the apex court in above two cases the doubts over the reasonableness of death penalty raised again in Bachan Singh v. State of Punjab 7. In Machhi Singh v. State of Punjab 8, the apex court has emphasized that death penalty need not be inflicted expect in the gravest of cases of extreme culpability and that life imprisonment is the rule and death sentence is an exception. The court has emphasized that death punishment is to be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to relevant circumstances of crime, and provided, and only provided, the option to impose 6 AIR 1979 SC 916. 7 AIR 1980 SC 898. 8 AIR 1983 SC 947. 174

sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. The court further said that for determining any cases to be rarest of the rare judges must ask themselves two questions : 1) Whether there is something uncommon about the crime which renders a life imprisonment sentence inadequate and calls for a death sentence? 2) Whether the circumstances of the crime are such that there is no alternative but to impose the death sentence even after recording maximum weightage to the mitigating circumstances which speak in favour of the offender? In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 9, Justice S.B. Sinha held that the death penalty can be imposed only when it is proved that the life imprisonment will not serve any purpose of reforming or rehabilitating the accused. The reformative dimension of this judgment was very much similar to Justice Krishna Iyer s thoughts on death penalty whereas he mentioned that law must heal the criminal attire in a human being than leaving him more retarded and frustrated 10. Though the judgment was accepted by the abolitionists of death penalty, it added a new lesson to the death penalty debate. WHY CONTINUE WITH DEATH PENALTY? A common question of paramount importance is that, Why continue with Death Penalty in India?, when such a practice has been called into question and gives a picture of stereotypical regressive society? The author delves into the same question and aims to find out an appropriate answer to support his claim to continue death sentence as a mode of inflicting punishment. 1) Death Penalty acts as a Deterrence. The principle reason behind the subsistence of Capital Punishment in India is to deter the potential criminals present in the society at large from committing any gross inhuman conduct. Strongest punitive measure must be taken to teach a lesson to those 9 AIR 2009 SCC 498. 10 Death Sentence, The Indian Advocate: Journal of the Bar Association of India, Vol. Xiiiii: 28, 1978. 175

criminals, and 35 th proportionate to the Crime. Law Commission report suggested that Punishment must be Death Penalty is awarded for security and protection of society, so that every individual may live in peace. There is a greater danger of violent crimes in India if capital punishment is abandoned. Taking a realistic view, so long as the society does not become refined death penalty has to be retained. 11 In Full Bench decision of Triveniben v. State of Gujarat 12, the Court's faith in deterrent effect of death penalty was reiterated, though the Court conceded that greater deterrent value of death penalty was not empirically proved. The apex court in Gudda v. State of Madhya 13 observed that, A deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fiber of society would call for imposition of capital punishment in order to ensure that it acts as a deterrent. 14 2) It Ensures Justice & is not against the Constitution. The Preamble to the Constitution of India, seeks to achieve for all the Indian citizens Justice, among other things. Now, isn t it only fair that a person who has committed the most heinous of crimes, persons who are potentially dangerous to the society at large, persons who have no repentance, no ounce of humanity left in them, be shown the gallows? The main reason given behind negating the provision of Death Penalty is that it infringes the cherished principles enshrined under our constitution. It is often argued that decision of death penalty given by the courts is arbitrary and negates the concept of due process. The claim supporting this argument is that it is not mentioned anywhere that under what facts and circumstances court will deem the case fit for 11 Law Commission of India - Thirty-fifth Report (Capital Punishment), 1967, Government of India, Ministry of Law (http://lawcommissionofindia.nic.in/1-50/report 35Vol1 and 3.pdf ). 12 AIR 1989 SC 1335. 13 Criminal Appeal Nos. 1566-1567 of arising out of S.L.P. (CRL.) Nos.1195-1196 of 2012. 14 Advocate Khoj( http://www.advocatekhoj.com/library/judgments/announcement.php?wid=4003, last accessed on Oct. 22, ). 176

death penalty. It has been totally left on the prudence and intellect of the judge to decide the same. It is contested in a number of occasions that usage of Judicial discretion on this sort of cases gives rise to arbitrariness. Same has been befittingly answered by Supreme Court. There are trail of questions which author wants to respond as an answer against the abolition of this method which according to abolitionist pictures anachronism: 1) How could persons who have not behaved in a humane manner, be endowed with the same rights as dutiful, law abiding citizens? 2) What justice would it be if an inhuman entity treated in the same manner as humane person? 3) Exactly what rights are the human rights advocates talking about entitling such criminals with? 4) What about the safety and trust the citizens have reposed in the judicial system, to ensure that a person is punished in proportion to the crime committed by him or her? A slew of decisions given by the apex court upholding the constitutional validity of Death Penalty testifies the validity of capital punishment under Indian Laws. The same cases have been discussed in length at later part of this article. This debate must continue and it cannot be closed forever on the abstract doctrine of stare decisis, because the very nature of the problem is such that it must be the subject of review from time to time so as to be in tune with the evolving standards in a maturing society. 3) Number of Considerations. Imposition of death sentence is the extreme punishment, which ends a human life, therefore, restrictions have been imposed under the law to give special reasons for awarding the extreme punishment. These special reasons must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve the death penalty, Justice V.R. Krishna Iyer commented in Rajendra Prasad v. State of U.P 15. 15 AIR 1979 SC 916. 177

In Ediga Anamma v. State of Andhra Pradesh 16, Justice Krishna Iyer attempted to bring out considerations for mitigating the punishment like gender, age, socioeconomic background and psychic compulsions. Here it was said that the crime committed is not the sole criterion of determining the punishment but various other factors should also be taken into account while evaluating death penalty. In Anshad and Others v. State of Karnataka 17, Justice A.S. Anand, held that the motive and the manner in which the crime was committed, the weapons used and the extent of brutality or the lack of it are some of the considerations which must be present to the mind of the court. 4) Rarest of Rare Category. It is widely claimed by abolitionists that the process of giving death penalty is arbitrary, vague, superficial and displays narrow approach adopted by court, where death punishment is given by judges according to their own whims and caprices by taking shelter of Judicial Discretion. But the apex court at many occasions has answered this question in negative and at several occasions made it outrightly clear that Capital Punishment should only be given in Rarest of Rare Category. What determines rarest of rare is completely left on the discretion and prudence of judge, which is determined as per the facts and circumstances of the case. The numerous supreme court cases has been discussed in length at later part of this abstract, in this head the author aims to discuss the number considerations and principles looked upon, behind putting any case under the rarest of rare jacket. The ethos behind the categorization of a particular case as rarest of rare was to curb the uncontrolled and unguided discretion of judges to impose capital punishment and lifetime imprisonment because it may affect the fundamental freedoms guaranteed under Article 14, 19 & 21 of the constitution. It is therefore, essential that this constitutional question be answered with objectivity and proper measure of selfrestraint. 16 AIIR 1974 SC 799. 17 1994 SCC (4) 381. 178

Further the Court observed that the principles that were stated in the case of Bachan Singh and thereafter, in the case of Machhi Singh are dissected into two different compartments, one being the aggravating circumstances while the other being the mitigating circumstance. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring their classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Cr.P.C. Principles: 1. The Court has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence. 2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. 3. Life imprisonment is the rule and death sentence is an exception. 4. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. The above discussed judicial opinions which have come to be accepted as important principles of law are relevant for consideration while awarding the punishment to the accused. 5) Executive Afterthought. In cases where all legal recourses has been exhausted and no relief has been obtained by the person who have been awarded with Death Penalty and where even Supreme Court has confirmed the sentence of the accused persons. In order to lessen down the punishment, accused can take recourse to the Pardon procedure provided under the constitution. Indian Constitution speaks about the pardon procedure under Art. 72 and Art. 161 18. 18 Rohan Sahai, Limits Of The Pardoning Power Under The Indian Constitution, NUJS Law Review (http://www.nujslawreview.org/pdf/articles/2009_2/rohan-sahai.pdf, last accessed Oct. 24, ). 179

It runs as Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases : 1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence a) in all cases where the punishment or sentence is by a court Martial; b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; c) in all cases where the sentence is a sentence of death 2) Noting in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in Even if the death sentence is passed, the convict has the right to file for a mercy petition, or due to unreasonable delay there is a possibility that the death sentence might be commuted to life imprisonment. On receiving the mercy petition, the executive may conduct a separate enquiry and can call for fresh evidence. If new information is discovered, i.e. information not present in the judicial record of the case in question, it is a ground for the executive to approve the mercy petition and commute the death sentence of the convict to life imprisonment. However, this does not have the effect of over-ruling the judgment of the Judiciary, this power is granted to the judiciary only to correct the errors of the judiciary, if any. This only goes on to prove that extreme care and caution is taken for capital punishment to be awarded. That being the case, it is only obvious that the State does have high regard for the life of its citizens, and that it exercises utmost care and caution before death penalty is awarded. 6) Re-check by Supreme Court. Death Penalty must continue to be given because cases not fit for capital punishment are disregarded by apex court. Even, there exists number of factors to check whether penalty has been awarded rightly or not. In the same list of steps there exists another way by which Supreme Court again looks upon its decision or decisions given by high 180

courts and if finds reasonable and justified cause may commute the death penalty to life imprisonment. In 1989, a five judge constitutional bench of the Supreme Court ruled that inordinate delay in the disposal of a mercy petition by the executive could be counted as a factor in favour of commutation 19. The Supreme Court held that: Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32. This Court may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable. However in April, the Supreme Court, in Bhullar s case, while noting the petitioner s claims that the delay of eight years in disposal of the mercy petition has rendered the sentence of death cruel, inhuman and degrading, treatment, decided not to commute the death sentence based on the enormity of the crime 20. Recently on October 8, Supreme Court commuted death penalty of Sushil Sharma in Tandoor Murder Case 21 considering the case not fit for rarest of rare jacket. By commuting the death sentence of the accused to life imprisonment, court said that though the offence committed was brutal but brutality alone will not justify death sentence in the present case. 19 Triveniben vs. State of Gujarat, AIR 1989 SC 1335. 20 Devender Pal Singh Bhullar vs. State of N.C.T of Delhi, () 6 SCC 195. 21 Sushil Sharma v. State of N.C.T. of Delhi, CRIMINAL APPEAL NO.693 OF 2007. 181

CONCLUSION Those who deny freedom to others, deserve it not for themselves; and, under a just God, cannot long retain it. - Abraham Lincoln The issue of Death Penalty has been one of the most debatable topics in the criminal justice system. Owing to the recent executions of Kasab and Afzal Guru, this topic has garnered much light. The benefits or rather, the requirement of death penalty in the contemporary times has been made crystal clear. The offence is committed generally without any compulsion. A convict is fully aware of the consequences of his actions, hence, it is only just to ensure that the convict is adequately punished for the crime committed by him. It is apt to say that there is a dire need to continue with capital punishment. Death Penalty has its own pros and cons. Owing to this pros and cons, rententionist and abolitionist come into existence. Death Penalty itself has a myriad of dimensions to it. But one unchanging aspect is that some crimes are so culpable that death is the only suitable penalty. Catena of cases dealt by the apex court has established a point that Death Penalty must continue to exist. Same has also been suggested by Law Commission of India in its 35 th Report 22 and in 187 th report 23. Taking the example of India, giving death punishment is not a cakewalk, numerous factors are taken under consideration and then only, in rarest of rare category it is rarely awarded. In a trail of cases the apex court has cleared all obscurity of unconstitutionality surrounding death penalty and has declared it constitutional. Moreover, if imposition of death penalty is not performed under reasonable period, as already have been discussed in the article, the same is commuted to life imprisonment considering it in breach of Art. 21. To conclude, it can be reiterated that death penalty is a requirement in the contemporary society where each person stand for himself. Harsh punishment is required to keep potential criminals at bay, and ensuring that society is not harmed. The state cannot compromise the lives of hundreds and thousands for the sake of one convict who doesn t even deserve to be the part of society. So taking under considerations all socio-legal reasons Death Penalty must continue to exist. 22 Law Commission of India - Thirty-fifth Report (Capital Punishment), 1967, Government of India, Ministry of Law (http://lawcommissionofindia.nic.in/1-50/report 35Vol1 and 3.pdf ). 23 Law Commission of India 187 th Report (Capital Punishment), 2003, Government of India, Ministry of Law (http://lawcommissionofindia.nic.in/reports/187th%20 report.pdf ). 182