Every saint has a past and every sinner a future, never write
off the man wearing the criminal attire but remove the
Dangerous degeneracy in him, restore his retarded human
Potential by holistic healing of his fevered, fatigued or
Frustrated inside and by repairing the repressive, though hidden,
Injustice of the social order which is vicariously guilty of the
Criminal behaviour of many innocent convicts. Law must rise
With life and jurisprudence responds to humanism.
These lines were given by Justice Krishna Iyer in his book ‘Death Sentence on Death Sentence’ Nothing better than these lines can essentially prove my stance and belief in the death penalty. However, the common notion that prevails in the society is that it considers punishment as a means to discourage would-be criminals from unlawful action. So whenever a death sentence is awarded it is considered that it creates a dread in the minds of people which stops them from doing a wrong. Another contention given in support of the above argument is that the conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult to come to a conclusion that they would not commit a similar offense again.
However, Amnesty has clearly stated in its reports that they did not find any such clear findings that the death penalty actually lowers the crime rate. However, this deterrence theory can altogether take a different turn in a case where a terrorist or any such sensitive issue may be involved. There have been instances where after the death sentence of a terrorist there have been more terror attacks on the nation. Thus, clearly proving that deterrence may not have the same effect in all the cases alike.
Furthermore, another question that is raised in my mind is that are we really serious to reduce the crime rate through harsher punishments alone? Then we should be prepared to execute every criminal who commits a capital crime irrespective of their sex, age (above the legal minimum) alleged mental state or background. Henceforth we should carry out executions without any delay and with sufficient publicity to get the message across to other similarly
minded people. But contrary to this practice we shy away from it and return to just carrying out the occasional execution and that too with minimal attention. Isn’t it against the principle of natural justice itself?
In the case of Bachan Singh v. Union of India it was laid down that “For persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” The court lays a special emphasis on the term ‘rarest of rare case’ however does it actually concur with our ‘Right to equality’ so envisaged in our constitution. The distinction between ordinary murders and murders which are gruesome etc. which the Court has drawn from the Ajit Singh case does not seem convincing at all. In the case of Lok Pal Singh v. State of MP the court has rightly stated that absence of a well-defined principle has led to the misunderstanding of the ‘rarest of rare’ formulation, given that such a trend has allowed other judges who favored the death penalty to pay lip-service to ‘rarest of rare’ to award death sentence by merely mentioning the existence of aggravating circumstances and the lack of mitigating circumstances without actually noting what they are.
It also pertinent to note that in certain cases the variety of interpretation given to the “rarest of rare” doctrine has led to unguided discretion thereby allowing the death sentence to be arbitrarily imposed. Sometimes this death sentence so imposed is guided by the personal predilections of the judges or even the common stir so caused among the masses by the media that such death sentences are given emotionally. This could be a detriment to the judicial system in India.
If the killing of a woman or child is considered to be gruesome than how can hanging a person by neck be justified? A chemical substance which is injected to cause suffering is an instrument of torture so how should the legal authorities be identified when used to kill by shooting or lethal injection? Just because the legal processes commit such action, can it actually affect the inhuman actions of the authorities, has not been answered yet. Though no state or government actually accept the torture committed by them or the grave human rights violations so committed. However, those governments who are hesitant to remove the death penalty partly admit it.
To sum up, it is important that the criminal system should be reasonable to ask if the crime will have a long-term impact. However, the retributive theory is based on the premise that the criminal shall commit future atrocities on the victim and may be a danger to the society in the future. However, it completely misses the point that there may be a possibility that the defendant’s behavior may change. As Mahatma Gandhi has rightly said, “Hate the sin not the sinner”. Death can only take away the life of an individual but reformation can change it.
AUTHOR: Udisha Ghosh, Symbiosis Law School, Pune (IIIrd Year )
i These lines were given in his judgment of Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra
ii Amnesty website: https://www.amnesty.org/en/library/asset/ACT50/010/2007/en/f14c87db-d3a2-11dd-a329-2f46302a8cc6/act500102007en.pdf
iii AIR 1980 SC 898 iv 1967AIR 856 v AIR 1985SC 891
vi The rarest of the rare principle was first laid down in Bachan Singh v State of Punjab AIR 1980 SC 898 and in Machi Singh
v State of Punjab1983 AIR 957.