DEATH PENALTY: A DEBATABLE ISSUE
Author: Ms. Deepsi Rawat, Law College Dehradun
Death, as a means of punishment for an offence, has been in fashion since the dawn of time. As humans evolved so did the customs, rules, and regulations. Any act that opposed the set pattern of principles or regulations was considered an offence in the community. These offences need to be punished in order to create a deterrent effect in the mind of the remaining mass of the community, to keep them at bay from the commission of the offence. Punishments like stoning, burning alive, stomping by elephants, etc. were what formed part of the criminal justice system in antient period. The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes.It consisted of 282 laws written in stone table enumerating the theory of “an eye or an eye”. With the passage of time and realization of human worth, the cruel and inhuman slow means of punishment were done with petty offences and death as a means for punishment for grave and heinous offences was introduced.
Offences like murder, dacoity with murder, waging war against the government and abetting mutiny by members of the armed forces are certain offences that attract capital punishment in India. India is the follower of the reformative theory of punishment. It also ensures that the rights of a person do not end with his conviction. All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. There are two main reasons for inflicting punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. Capital punishment also rests on the same proposition as other punishments.
DOCTRINE OF RAREST OF THE RARE CASE
The doctrine of rarest of the rare case was expounded in the case of Bachan Singh v. State of Punjab. Justice R Sarkaria speaking for the majority held that for convicts of murder, the general rule is life imprisonment of whose death penalty is an exception. An enduring and predominant concern for the dignity of human life postulates resistance to taking a life through the law’s instrumentality.“That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”Doctrine of rarest of the rare case implies that the punishment for an offence has to be provided by looking into the facts of the case and the gravity of the offence. A balance has to be struck between the rights of the convicted and the interest of the victim and society at large. Therefore, weight age is given to the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”.
There is no hard and fast rule as to which cases and what offences fall in the category of rarest of the rare case. The age, gender, circumstances under which the offence was committed, the criminal background of the accused, the gravity of the offence and its effects and sentiments of the society all serve as a guiding factor for a determination whether a case falls within the category of rarest of the rare case. Justice S B Sinha in his majority judgment has imposed a duty upon the court that “appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be awarded save in the `rarest of rare’ case where reform is not possible.”
CONSTITUTIONALITY OF DEATH PENALTY
Article 21 of the Constitution provides that “no person shall be deprived of his life or liberty except according to the procedure established by law” The death penalty puts this fundamental right of the offender in peril. The constitutionality of the death penalty was raised for the first time in the case of Jagmohan Singh v. State of U.P. the counsel of the petitioner challenge3d the constitutionality of Section 302 of Indian Penal Code, 1860 on the ground that the death penalty deprives the offender of his fundamental freedoms provided under Article 19 and of Article 14 and 21 of the Constitution. He also contended that there is no set policy for the exercise the discretion to impose capital punishment. The court however did not consider his plea and upheld the constitutionality of the death penalty and held that deprivation of life is constitutionally permissible for being recognized as a permissible punishment by the drafters of our constitution.
In the case of Ediga Anamma v. State of Andhra Pradesh, Justice Krishna Iyer commuted the death sentence to life imprisonment on the basis of age, gender, socio-economic condition, conditions under which the offence was committed, gravity, etc. “A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”
The unconstitutionality of the death penalty was raised again in the case of Bachan Singh v. State of Punjab where the five judges bench laid down that “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”Macchi Singh v. State of Punjab further explained the rarest of the rare cases by illustrations.
The Court in the case of Mithu v. State of Punjabinvalidated that compulsory death sentence under Section 303 of the Indian Penal Code. In the subsequent cases of T.V Vatheeswaram v. State of Tamil Nadu and Sher Singh v. State of Punjab, the Supreme Court was faced with the question of delay in execution of the death sentence and whether a prolonged delay was reason enough to commute the death sentence to life imprisonment. While the first case laid down that such a situation gave reason enough for the convict to invoke section 21 and get the lesser punishment, the majority in the latter case differed on this point.
ARGUMENTS FOR RETENTION OF DEATH PENALTY
With the evolution of the doctrine of rarest of the rare case, the death penalty becomes an exception and life imprisonment the rule. The sentencing of death penalty can be imposed only on special reasons provided by the judge. Section 354 (3): When the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or an imprisonment for a term of ten years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death the special reasons for such sentences. Also, when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The convicted also has the choice of appeal in the higher Courts. These provisions ensure that there is no error in passing death sentence and all possible measures have been taken to ensure that there is no possibility of wrongful conviction. As regards the miscarriages of justice, this is very rare, there may be one or two cases in a hundred or a thousand where a wrong person is punished. Men’s rea is a very important ingredient of murder and unless men’s rea is proved, no death penalty is awarded. Again, error may be corrected, in appeal, by superior courts.
Under Article 72 and Article 161 the President and Governor have the power to grant pardon, reprieve, reprites or remission punishment or to suspend, remit or commute the sentence of any person convicted of any offence ensuring opportunity to the offender to prove why he is not entitled to a death penalty.
The purpose of imposing harsher punishment is to create a deterrent effect amongst the members of the society so that they refrain from committing a similar offence. Justice should not just seem to be done but, must be done. The trauma and stigma that the victim of the offence has suffered must be satisfied by providing punishment for the offence in proportionality to the crime.
Capital punishment wrote Montesquieu, represents is kind of retaliation by which society withdraws protection form a citizen who has sought to destroy another citizen. This punishment is derived from the nature of the crime, drawn from the fund of reason and the Springs of Good and Evil. A citizen deserves death when he has violated the security of another and has gone so far as to kill him or attempt to kill him. The death penalty this employed may be described as the medicine for a social malady.
ARGUMENTS FOR ABOLISHMENT OF DEATH PENALTY
If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well.”Killing the offender as a form of punishment will in no way serve the purpose of justice for an eye makes the whole world blind. There is no justification for the fact that passing a death sentence against a person who has committed a heinous offence will create a deterrence for the society to commit further crime. Killing the criminal is just a revengeful act committed by the State in order to quench the vengeance of the victims and the family. “The most reasonable conclusion is that there is no positive indication that the death penalty has been deterrent. In other words, the efficacy of the death penalty as a deterrent is unproven.”
Death sentence to the offender does not serve the purpose of repentance which indeed helps in the reformation of the person rather than death. Death sentence bars the offender from pondering upon his wrongful acts and depriving him of the opportunity to reform himself to be a better citizen. Further, there is no set rules or regulations that provide a guideline for the exercise of the doctrine of rarest of the rare case.
“Unfettered and uncharted discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism.”
Capital punishment removes the possibility of reversal of the judgment in the case where a person has been wrongly convicted. The human-run system is not infallible and there might happen instances where sometimes the minute technicalities might be missed by the judicature resulting in a wrongful conviction. In such cases, where the death sentence has been executing, there might be no going back to preserve the rights of the person who has been wronged.
The death penalty has been an issue of debate for a long time. Where its execution has been supported by the argument that there needs to a certain deterrence amongst the mass and justice to the victim. However, the risk involved in the violation of the fundamental rights is also argued by the human rights activists. “Every death penalty case before the court deals with a human life that enjoys certain constitutional protection and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards.”
 B.B.A. LL.B. (Hons.), Law College Dehradun, Uttaranchal University.
AIR 1980 SC 898
Pramod Kumar Das, Supreme Court on Rarest of Rare Cases (Universal Law Publishing Co. Pvt Ltd., New Delhi, 2011) at pg-104.
Ravji alias Ram Chandra v. the State of Rajasthan, (1996) 2 SCC 175.
 Article 21, Constitution of India, 1950
(1973) 1 SCC 20
 Jagmohan Singh v. State of U.P, (1973) 1 SCC 20
AIR 1973 S.C. 774
Ediga Anamma v. State of Andhra Pradesh, AIR 1973 S.C. 774
AIR 1980 SC 898
Bachan Singh v. State of Punjab, AIR 1980 SC 898
(1983) 3 SCC 470
(1980) 2 SCC 684
(1983) SCR (2) 348
(1983) SCR (2) 582
 Code of Criminal Procedure, 1973
 Section 366(1), Code of Criminal Procedure, 1973
Helen Prejean, Dead Man Walking
Bishnu deo Shaw Vs west Bengal (1979) 3 SCR 355, 365
Bachan Singh v. State of Punjab
Chhannu Lal Verma v. State of Chhattisgarh