Courts are constantly faced with the situation where they are required to answer to new challenges and mould the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The change in the legislative intendment relating to award of capital punishment, notwithstanding the opposition by the protagonist of abolition of capital sentence, shows that it is expected of the courts to so operate the sentencing system and impose such sentence which reflects the social conscience of society. The sentencing process has to be stern where it should be 1). To be or 'not to be' is a highly vexed question. Throughout the globe, brilliant brains including legal luminaries and philosophers have debated whether the death sentence should be retained as punishment for some of the most heinous crimes. Lord Denning once said that punishment of death should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. In our country, for the offence of murder, death sentence has been retained for rarest of rare cases 2) .
Human rights activists, reformists and sociologists sometimes argue that life once past cannot be brought back, that capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterent effect.
It is argued that penalty of death sentence has a dehumanising effect, and execution of capital punishment by hanging is barbaric and dehumanising. The 35th Report of the Law Commission submitted in 1967 summarises the recommendations in the following words:
Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment. The majority opinion in Bachan Singh's case 3) held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it. Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today. The present is, therefore, the most inopportune time to reconsider the law on the subject. While, rejecting the demand of the protagonist of the reformatory theory and humanitarian ideology or rehabilitarian philosophy for abolition of the death penalty the Legislature in its wisdom though that the 'special reasons clause' under s 354(3), CrPC, should be a sufficient safeguard against arbitrary imposition of the extreme penalty 4). The reasons why the community as a whole does not endorse the humanistic approach reflected in 'death sentence in no case' doctrine are not far to seek.
In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member the society may not feel itself bound by the shackles of this doctrines. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends.
Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed. Or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the antisocial or abhorrent nature of the crime 5).
It is only the Legislature which can abolish the death penalty and not the Courts. As long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary. It is not for the judiciary to repeal or amend the law, as that is in the domain of the legislature 6).
Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India. Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.After the amendment of 1955 courts were at liberty to grant either death or life imprisonment.
It cannot be said that since it may not be possible to eradicate crime itself, criminals cannot be awarded the death sentence prescribed by law. The death penalty, provided for in an offence of murder under section 302, IPC, is not unconstitutional. It neither violates article 19 nor article 21 of the Constitution of India 7).
In the face of the statutory provision in cl (3) of s 354, CrPC which requires the giving of special reasons while imposing the death penalty. This is consistent with art 21 which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, extreme plea of death in no case cannot be countenanced and the death penalty cannot be said to be violative of art 21.
A provision conferring power on courts to exercise discretion cannot be said to be violative of art 14 and capital punishment should not be regarded as per se unreasonable or as not being in public interest.
It is a most inopportune time to consider the question of imposition of capital punishment as the law and order situation in the country has deteriorated over the years and is fast worsening today.The death sentence is not unconstitutional. 8).
Execution of the Innocent: The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system.
According to Amnesty International: As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.Death has been abolished as a form of punishment in most of the developed countries.
The UN Secretary General's report on the death penalty presented to the Human Rights Council held that “some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years”.
Capital punishment doesn't rehabilitate the prisoner and return them to society.
One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime.
This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
Each criminal should get what their crime deserves and in the case of a murder, criminal deserves death.
Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
It is often argued that the death penalty provides closure for victims' families.
There are many examples of persons condemned to death taking the opportunity of the time before execution to repent, express remorse, and very often experience profound spiritual rehabilitation.
Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life. It demonstrates that the death penalty can lead to some forms of rehabilitation.