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INTRODUCTION: Punishment in some form or other exists in most civilised societies. Capital punishment is one by which an offender is sentenced to death for committing the heinous crime of murder.
DEVELOPMENT OF THOUGHT: Death penalty as a form of punishment, and it is deterrent value, especially for the crime of murder, has been a subject of intense though inconclusive debate both at national and global levels. Only a very few societies have stilled the debate by abolishing the death penalty us a matter of law or practice. As of 1980,21 countries have abolished the death penalty as a matter of law, 16 have abolished it also for the crime of murder. Five countries have abolished capital punishment not through law but through custom; although they retain the death penalty on statute books, they have not executed a single person for the last forty years. Six countries have not recorded execution for the last ten years. But in a world community of 154 States, only 37 have been -relatively’ immunised from the raging debate on capital punishment, `relatively’ because there often surfaces even in some of these States public opinion claiming its revival. And most abolitionists retain scope for capital punishment for offences against the State. We also witness swings of the pendulum: abolitionist states are known to reintroduce death sentence for a period and then revert to its abolition. For example, Brazil abolished capital punishment in 1890, reintroduced it in 1969, and reverted to the abolitionist position in 1979. Thus, controversy persists both in abolitionist and retention is societies. But, obviously, it is sharper and sustained in the latter. India is illustrative of this reality. In the years of independence, there have been several bills and resolutions in Parliament seeking abolition of the penalty, a five years study by the Law Commission of India resulting in a 1967 report of 724 pages, and two unsuccessful challenges to the constitutional validity of death sentence before the Supreme Court of India. There have been amendments to the Criminal Procedure Code rendering death sentence progressively to be an exceptional rather than normal punishment for murder. And there is much debate in judicial decisions as to how far the scope of mitigating grounds should be extended in the area of the death penalty.
CONCLUSION: India, the champion of the protection of human should take effective and adequate steps in abolishing the death penalty and ensuring a good and just social order.
In India, as in most civilized societies, the trend has been towards the restriction of occasions and offences justifying the award of capital punishment. The death sentence was clearly known and practised in ancient and medieval India. The punishment was not abolished even by Asoka. In Muslim law, capital punishment was permissible in addition to the offences of wilful homicide for offences such as zinc (unlawful conjunction of sexes), the repeated commission of offences of larceny, and highway robbery. The Bengal Regulation Act of 1817 exposed persons convicted of murder in the prosecution of robbery, burglary or theft to capital punishment. Escape from penal transportation of life, sodomy, rape, robbery with wounding, burglary with assault arson endangering life, forgery, riotous destruction of public buildings and exhibition of false lights were capital offences by 1843, in addition of course to offences of murder, mutiny and `treason’ defined variously from time to time. The company administration and law were not just characterized by an ad hoc expansion of capital offences. It was also marked by the gradual introduction of more elaborate procedures for the determination of guilt and punishment.
The trend towards a sharper crystallisation of capital offences matured during the drafting of the Indian Penal Code. The first Report on the draft Penal Code prepared by the Indian Law Commission in 1936 did not find it desirable “wholly to dispense with this punishment”. But they were convinced that it ought to be very “sparingly inflicted”. They accordingly proposed to restrict it only to occasions of murder or -where the highest offence against the State has been committed”. The labour of the Law Commission ultimately produced seven c ategories of offences warranting an award of capital punishment. Of these seven, the death penalty was made mandatory only when a murder was committed by a person under the sentence of imprisonment for life. The six remaining situations in which the Code sanctions death sentence as an alternative to life imprisonment are: (i) waging war against the government or attempting or abetting of such war (Section 121); (ii) abetment of mutiny committed by the officers of Defence Forces with mutiny being committed in consequence of such abetment (Section 132); (iii) giving or fabricating false evidence with intent to procure conviction of a person of a capital offence, if an innocent person is thereby convicted and ‘executed in consequence of such false evidence (Section 194); (iv) murder (Section 302); (v) abetment of suicide of a person under eighteen years of age, an insane person, delirious persons, idiot or intoxicated person (Section 305); and (vi) attempt to murder by a person under sentence of life imprisonment if as a result of such an attempt hurt is caused (Section 307)
The position at law at present is that only the Court of Session and High Court acting in their original jurisdiction) can award death sentence. If the sentence has been awarded by the Court of Session, it requires confirmation by the High Court. There is scope for an appeal to the Supreme Court of India under Article 132, 134 and 136 of the Constitution. An appeal to the Supreme Court lies as a matter of right in those cases where the High Court has, upon a review of the Sessions Court’s determination, reversed the acquittal and imposed the death penalty or has enhanced the sentence to capital punishment. While in other situations the Supreme Court has discretionary jurisdiction, it appears that there has developed over the years a convention that appeals against death sentence are not ‘dismissed at the threshold without full consideration.
The Constitution confers through Articles 72 and 161 clemency powers on the President of India as well Governors of States. And the Supreme Court of India has at least on one occasion opined that the clemency powers should not be exercised arbitrarily or discriminatorily. Such exercise of powers may be adjudged to be a violation of the fundamental right of equality before the law guaranteed by Article 14 of the Constitution. There have been occasions when clemency powers have been exercised on a mass scale for all death sentences. General clemency has been reported on the 2500th birth anniversaries of Lord Buddha and Lord Mahavira.
It is clear that since independence the use of capital punishment as a measure of social control has been on the decline. Independent India has followed a more restrictive policy towards a sentence of death and executions.
The courts are basically vested with considerable sentencing, discretion. But legislative text and context influence, to some extent, the patterns of judicial discretion. Thus, generally speaking, the Criminal Procedure Code required, for the period l 898 to 1955, courts and judges to state their reasons for not awarding death sentence for capital offences. Capital punishment for such offences was perceived to be a rule rather than an exception. Following the recommendation of the Law Commission of India in its thirty-fifth report, this provision was altogether deleted. Courts were now free to award death sentence or life imprisonment in the light of each fact-situation. The Supreme Court took the view that this change made both the sentences normal punishments and ruled that courts have to exercise their sentencing discretion judiciously, cognizing all relevant considerations.
But the Criminal Procedure Code 1973, recognized the principle that imprisonment for life was the normal punishment for capital offences (save Section 303 of the Penal Code which imposes a mandatory death sentence). The Code by Section 354 (c) underscored this principle by the mandatory requirement that courts record in writing their reasons for awarding the death sentence as an alternative to life imprisonment. Award of death sentence now calls for the highest degree of judicial rectitude. The 1973 shift in sentencing policy brings India closer to the aspirations of abolitionists and testifies to the growing strength of community feeling that if the sentence is not abolished it should be used very sparingly. Further reinforcement to this sentiment was provided in 1980 when the Supreme Court, while upholding the constitutional validity of section 302 of the Indian Penal Code, unequivocally ruled that death Penalty should not be used to save for the “rarest of rare cases when the alternative option is unquestionably foreclosed”.
But available studies of capital punishment suggest several strands of arbitrariness in sentencing behaviour.
What are the principal sources of arbitrariness in judicial decisions on death sentence? First, it is clear that divergent attitudes and social philosophies of individual justices are inescapably involved. Statistics cogently demonstrate that some justices (especially in the Supreme Court) are readily and regularly inclined to sustain death sentences, others are similarly disinclined and the rest are eclectic, approaching the question case by case. No doubt, sentencing discretion is inherent in our legal system; and it may also be considered generally desirable. The present question, however, goes beyond the everyday sentencing discretion. It involves that kind of sentence discretion which results in final annihilation of an individual life. Should such a sentence very, like equity, with the Chancellor‘s foot?
Second, the possibility of such a violation is aggravated by the practice of bench formation. Most final appeals on capital punishment are heard by two-judge benches. Thus, if justices having a pro-capital punishment or having strong law and order attitudes happen to constitute these benches, the likelihood of affirmation is much greater than otherwise. The question, starkly put, is this: am I to hang because of the way in which the Chief Justice of India constitutes benches from time to time? Given the irrevocable nature of this punishment and the contours of the fundamental right of life, the answer that such judicial practices govern all sentencing is no answer at all to this question.
Third, when we look at cases in which the Supreme Court upheld justification the sentence or entrancement of the sentence we find the justices resorting in justification to a wide variety of factors which fail to reveal any coherent pattern at all. Dr Raizada has classified cases up to 1976 in terms of actual categories used by the court to award or enhance the sentence. These area (0 “cold-blooded murder” (ii) “deliberate” murder of -unarmed” and defenceless person; (iii) “calculated and premeditated murder-; (iv) “murder with firearms”; (v) murder described variously as “brutal”, -cold-blooded”, “deliberate’, “unprovoked” “fatal”, “gruesome”:, -wicked”, -heinous- or -violent” (vi) “murder committed in nontraditional circumstances” like political murders or riots; and (vii) “Cases of group liability.
Fourth, the position as regards “mitigating factors” also shows the same incoherence. A ‘mitigating’ factor is the young age of the offender. But this too has been quite arbitrarily applied by the Supreme Court. In some cases, the Courts have taken the view that youth is no ground for extenuation of the sentence. But, there are cases in which both the Supreme Court and the High Court have reduced the sentence “for no special reasons on record except that age of the appellant”. The result in some cases is one of acute injustice. That’s is so because in some situations young offenders who have committed multiple murders get a reduction to life sentence whereas in others where “neither the loss of as many human lives, nor of higher valued property was involved the accused were awarded death sentence” A second “mitigating” factor is that of delay in final sentencing. It is by now quite clear that there is no way of predicting the exact period of prolonged proceedings which may favour the appellant. In one case, for example, twenty months were held to constitute delay entitling reduction in sentence; whereas in many cases death sentences have been confirmed even when two or more years were taken in the final disposal of the appeal. It also seems to be the case of the accused who was being convicted and sentenced after his from the subordinate court.
Apart from the vagaries regarding the delay in proceedings as a “mitigating-for, there is another factor and a more Fundamental one which makes the imposition of a capital sentence more or less a kind of cruel judicial lottery. If my case is handled expeditiously by the prosecutor, defence lawyer, sessions court, high court and the Supreme ( owl, then this “mitigalin9,” factor is not available to me for reduction to life, sentence. 11 On the other hand, there has been a lack of despatch -engineered- or -natural”, then one may escape the gallows in other words, the more efficient the proceedings, the more certain the death sentence, and vice versa.
There are two other categories, namely. -the mental condition of the accused” and “blameworthiness of the deceased” which to enhance the potential for arbitrariness in affirmation of death sentence by the Supreme Court.
All these factors singly and cumulatively indicate not merely that there is an enormous potential of the arbitrary award of the death penalty by the High Courts and the Supreme Court but that in fact death sentences have been awarded arbitrarily. Judges have not found it possible to evolve any set of criteria or guidelines for the award and affirmation of death sentence; some of them have not even tried to make such an effort asserting, rather boldly, that it is neither necessary nor justifiable!
The High Courts are free to decide what law the Supreme Court has declared in cases coining before it or indeed to decide whether the Court has declared any law at all. This means in the area of the death sentence that High Courts may from time to time reduce death sentence on their understanding of guidelines which the Supreme Court prescribes. Unless there is an appeal by the State for enhancement of the sentence, the reduced sentences by the High Courts will operate; in other words, excepting cases where appeal for enhancement by the State or acquittal by the accused are involved, the accused may be governed by the law declared by the High court from case to case. In practical terms, this means that subjectivism in the award of a death sentence is further aggravated. For example, as between A whose death sentence is confirmed by the High Court, and B whose sentence is reduced to life imprisonment by the High Court, A is more sentencing vagaries than B. And A might not have been exposed to these had there been any detailed codes of sentencing guidelines binding the High Courts in the matter of awarding death sentence.
A similar arbitrariness affects the exercise of clemency powers by the President, of India and Governors. Although exact figures of Presidential clemencies are not available, some aspects are clear. The President is not bound to mark public his reason: for decision. Secondly, the reasons for not granting or granting pardon may, despite the Constitution, not be his own: that is, he might be influenced totally by the nothings on the files made by the Home Ministry or the Secretariat. That means that the President may not really be applying his mind. Thirdly, we have no way of knowing what criteria the advisers to the President follow in annotating clemency papers; and in this context how much attention do they pay to the observations of the Supreme Court, both generally and in the fact situation of the instant case. On the whole, the President and his advisers are not bound to follow any procedures in considering clemency petitions: the president decisions are non-speaking; they cannot be reviewed either on any known principles of administrative justice; so that there exists not merely unbridled discretion in arriving at the actual decisions but also unreviewability. The clemency powers are open to constitutional challenge, on the ground that they violate Article 21, rights to life. Clearly, unless some reasonable procedure is prescribed for the exercise the power to pardon, it must follow that the exercises of power, as well as even the existence of the power, are liable to be constitutionally reviewed. If such wide powers are to be sustained, the principles of natural justice should apply to their exercise.
The vagaries in sentencing policy have featured, though not pre-eminently, in the debate concerning the death sentence in India. The Law Commission of India in its thirty-fifth Report and the Supreme Court of India in its 1972 and 1980 decisions reviewed carefully arguments against the retention of the death penalty. Both the Commission and the Court were examining the question of retention of capital punishment, although the issues were naturally formulated differently before them. The Commission was to examine the wisdom of retaining Section 302 of the Indian Penal Code; the Court was asked to use its judicial power to declare the section as invalid being violative of the right to equality before the law (Article 14) to life and liberty as guaranteed by Article 21. But the ultimate issues were the same. So were the ultimate answers. The Supreme Court agreed in spirit, if not in words, with the conclusion of the Commission that:”
Having regard to the conditions of India, the variety of social bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk experiment of the abolition of capital punishment.”
The Supreme Court recognized the argument that the death penalty is irreversible, the judicial process is fallible, and that therefore innocent persons may often or at times suffer this penalty. But the Court opined that this possibility only argues for the reform of the judicial system and sentencing procedure. And it held that the present legal provisions almost eliminate the chances of an innocent person being convicted and executed for a capital offence. The abolitionist argument is, of course, about the caveat; the fact that such prospects are “almost eliminated” means that they are not totally eliminated. And so long as such total elimination is felt to be impossible in human decision-making, the abolitionist arguments stand further reinforced.
The second abolitionist argument which found no favour with the Court was that the death penalty serves no penological purpose. This argument entailed three separate propositions. First, it is argued that the death penalty has no proven deterrent effect. Second, it is maintained that retribution or vengeance is no longer an accepted end of punishment and can therefore no longer supply the justification for the retention of a death sentence. Third, death penalty nullifies the most accepted aim of punishment, namely, reformation and rehabilitation of offenders. The Court did not accept any of these propositions. Relying eclectically on varied materials – judicial decisions, legislative experiments at abolition of the sentence for murder, and opinions of law reformers— the majority of the Court found that the “very fact that persons of reason, learning and light are deeply divided in their opinions on the issue”, negatives the argument that the death penalty is totally devoid of reason and purpose. While this is true, the Court obviously did not have before it literature which testifies pre-eminently that retention of the death penalty has no causal relevance to the incidence of murder. Indeed, it inclined the view that death sentence was the last horrifying deterrent for the toughs of the underworld and anti-social hoodlums and that it was the most formidable safeguard against terrorism. But there is no shred of evidence that the threat of execution is a more effective deterrent than that of life imprisonment which usually takes its place.
The majority also negative the argument that death sentence was arbitrary, cruel or degrading punishment. Indeed, it thought that the makers of the Constitution by explicitly recognizing the Indian Penal Code and the Code of Criminal Procedure (Entries I and II in List III of the Seventh Schedule), endowing the High Court and Supreme Court with special powers of confirmation and review, and by providing power to pardon both to the President and the Governors, clearly recognised death sentence for murder as “reasonable” punishment. Nor, did the Constitution-makers consider execution by hanging as either degrading or cruel. Harmonious interpretation of the Constitution did not permit elevation of the rights in Article 21 to a higher “constitutional postulate”. As to sources and patterns of judicial arbitrariness in sentencing, described here in some detail earlier, the Court satisfied itself by the recognition of the “impossibility’ of prescription of standards for sentencing.
In India, thus, all attempts to eliminate death sentence have so far failed. But the failure has not been completed; it has been marked by an anxious dialogue among the people and policy-makers concerning its nature, scope and impact. It appears that both the award of the sentence and actual executions are on the decline especially when compared with the 1911-1950 period. Indeed the decline is as sharp as it is remarkable. But at the same time the fact that in the last decade 6,672 people were awarded death sentence, and that 781 of these were refused commutation, gives us roughly an average of over 600 awards and over 70 executions per year.
At the same time, India has ratified the International Covenant on Civil and Political Rights in 1979. Article 6 of this covenant recognizes “the inherent right of life” of “every human being” and requires legal protection of this right; “no-one shall be arbitrarily deprived of his life”. For countries which have not abolished capital punishment, Article 6 provides a code of conduct. Sentence of death is to be prescribed only for “most serious crimes” and it has to be “carried out pursuant to a final judgement rendered by a competent court”. Retrospective liability of death sentence is prohibited; nor are parties to the Covenant allowed