Should Capital Punishment to Be Abolished or Not
This is a famous quote that many people cite when they pitch for the abolishment of capital punishment (death penalty) from the judicial process. The lengthy list of the terms which are not quite acceptable in a democracy begins with terms like capital punishment and death penalty. That, however, doesn’t mean that this form of punishment is not acceptable in a democracy. In fact, two of the largest democracies in the world – India and the United States of America, both have the provision for capital punishment as a part of their legal system. Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. ” Capital punishment is a barbarous survival from a less enlightened and refined age; it is incongruous and incompatible with our present standard of civilization and humanity.
It has been abolished by many states and countries, and we must look forward to the day when the other governments will follow suit Capital punishment, also known as Death penalty, is essentially the execution of an individual as punishment for offense by a state. The crimes which can lead to capital punishment are called capital crimes or capital offenses. Earlier, the killing of criminals and political opponents was prevalent in almost every civilization. With the time, nearly all European and several Pacific Area states (counting Australia, New Zealand and Timor Leste), and Canada have abolished death penalty.
The majority of states in Latin America have absolutely abolished capital punishment, however, a few countries, like Brazil, use death penalty only in special situations, for example, treachery committed during wartime. There are still quite a few states and countries that retain the use of capital punishment, including the United States (the federal government and 36 of its states), Guatemala, majority of the Caribbean, Japan, India, and Africa (Botswana and Zambia). In almost all retentionist countries, capital punishment is granted as a penalty for planned murder, espionage, treachery, or as part of military justice.
Recently, the case of Mohammad Afzal, a terrorist who was found guilty of instigating the attack on the Indian Parliament House, has cropped up the controversy regarding the Indian law of capital punishment. Right to Life & Capital Punishment in India In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it is to be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India.
Amongst the retentionist countries around the world, India has the lowest execution rate with just 55 people executed since independence in 1947. Since the condition of the ‘rarest of rare’ is not exactly defined, sometimes even less horrific murders have been awarded capital punishment owing to poor justification by lawyers. Since 1992, there are about 40 mercy petitions pending before the president. The proposals for abolition of death sentence for petty offences was brought about but there was a lot of hue and cry from lawyers , judges and parliamentarians and the so called protectors of social order.
Six times the House of Commons passed the bill and six times the House of Lords rejected the same. With the passage of time, the voice for abolition of death penalty grew stronger over the world especially in Britain. However, in spite of opposition, the bill was passed and the number of cases in which capital punishment was awarded was reduced year after year and death penalty was reserved for offences like murder and treason. Currently, in the world 133 countries have abolished capital punishment dejure or defacto. 64 countries have retained it.
Bangladesh is one of them. (source: Amnesty International Website) In UK , death penalty was abolished in 1965 except for offences of treason and certain forms of piracy and offences committed by members of the Armed Forces during wartime. In India , the recent trend is clearly towards the abolition of death sentence. Before the amendment of Criminal Procedure Code in 1955, it was obligatory for a court to give reasons for not awarding death sentence in case of murder. Under the Criminal Procedure Code, 1973, the court has to record reasons for awarding death sentence.
A compassionate alternative of life imprisonment is gaining judicial ground in India . In a leading case of Bachan Sing v. State of Punjab(1980) 2 SCC 684,the Supreme Court held by a majority of four to one that the provisions of death sentence as an alternative punishment for murder in section 302 of Penal Code was not unreasonable and was in the public interest. The dissenting view of Justice Bhagwati was that instead of death sentence, the sentence of life imprisonment should be imposed. He put emphasis on barbarity and cruelty involved in death sentence.
It is irrevocable and cannot be recalled. It extinguishes the flame of life for ever. It is destructive of the right to life which is the most precious right of all, a right without which enjoyment of no other right is possible. Justice Bhagwati rejects the view that death penalty acts as a deterrent against potential murderers. According to him, this view is a myth which has been carefully nurtured by a society which is actuated not so much by logic or reason as by a sense of retribution. Conclusion
It has been pledged in the preamble of the republic’s constitution that equality and justice will be secured for all citizens. The liberation heroes had dedicated their lives with a view to establishing a welfare state in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed. Protection against cruel, inhuman, or degrading punishment is a fundamental right under art. 35 (4) of the constitution. So time has come to reconsider death sentence as a means of punishment.
The world’s trend is precisely towards the correction of the offenders in lieu of inflicting cruel, inhuman and degrading punishment. Bangladesh as a democratic country cannot lag behind. The state is undergoing cumulative increase of crimes owing to a great deal of factors such as lack of good governance, absence of rule of law, corruption, patronisation of terrorists, wide gap between the haves and have-nots, confrontational politics and so on. Instead of giving emphasis on removing these factors, we are wrongly attempting to check crimes by inflicting exemplary punishment.
What is a “rarest of rare” case? In the Bachan Singh judgment of 1980, the Supreme Court ruled that the death penalty should be used only in the “rarest of rare” cases. More than a quarter of a century later, it is clear that through the failure of the courts and the State authorities to apply consistently the procedures laid down by law and by that judgment, the Court’s strictures remain unfulfilled. In a judgment delivered in December 2006, a Supreme Court bench admitted the Court’s failure to evolve a sentencing policy in capital cases (Aloke Nath Dutta and ors. . State of West Bengal (MANU/SC/8774/2006)). The bench examined judgments over the past two decades in which the Supreme Court adjudicated upon whether a case was one of the ‘rarest of the rare’ or not and concluded: “What would constitute a rarest of rare case must be determined in the fact situation obtaining in each case [sic]. We have also noticed hereinbefore that different criteria have been adopted by different benches of this Court, although the offences are similar in nature.
Because the case involved offences under the same provision, the same by itself may not be a ground to lay down any uniform criteria for awarding a death penalty or a lesser penalty as several factors therefore are required to be taken into consideration. ” The frustration of the Court was evident when it stated: “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do? ‘ In that particular ruling, the Court commuted the appellant’s death sentence.
On the same day, however, another bench of the Supreme Court upheld the death sentence imposed on an appellant who had convicted of murdering his wife and four children (Bablu @ Mubarik Hussain v. State of Rajasthan (AIR 2007 SC 697)). After referring to the importance of reformation and rehabilitation of offenders as among the foremost objectives of the administration of criminal justice in the country, the judgment merely referred to the appellant’s declaration of the murders as evidence of his lack of remorse.
There was no discussion of the specific situation of the appellant, the motive for the killings or the possibility of reform in his case. Death Penalty Statistics A look at the death penalty statistics of the world reveals that around 90 percent of the countries have already abolished the death penalty. These countries include Portugal, Venezuela, France, Canada, etc. This, however, hasn’t turned out to be as fruitful as expected, because some of the major countries in the world, including China, India and the United States, still ontinue the use of death penalty execution as a part of their legal system. Statistics also reveal that approximately 80 percent of the death penalty executions the world over, come from the Asian countries, with China at the forefront with the highest execution rate in the world. In fact, the number of executions in China alone in 2008 was double the number of executions in the rest of the world combined for that year. CONSTITUTIONALITY OF DEATH PENALTY IN INDIA
Imposing of death sentence is one thing that always gets more attention to be discussed, including from the view of constitutional validity in each countries. A serious discussion regarding to death sentence in Indonesia, whether it should be continued or abolished, has come up before the Court after some applicant applied a petition to Indonesian Constitutional Court in order to challenge the constitutionality of death penalty in Drugs and Narcotic Act against the provision of Rights to Life on Indonesian Constitution, 1945.
This article is the first chapter of several other chapters with the topic of “death penalty” which will be flattened on the following days. *** The provision of death penalty as an alternative punishment for murder under s. 302, IPC was challenged as constitutionally invalid being violate of Arts. 14, 19 and 21 of the Constitution in a series of cases. It was contended in Jagmohan Singh v. State of U. P.  that the constitutional validity of death sentence has to be tested with reference to Arts. 14 and 19 besides Art. 1 of the Constitution as the right to life is fundamental to the enjoyment of all these freedoms as contained in Art. 19 of the Constitution. It was further contended that the Code of Criminal Procedure prescribed the procedure of finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be awarded.
If the impact of the law on nay of the rights under Art. 19(1) is merely incidental, indirect, remote or collateral, Art. 19 would not be available for testing its validity. Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC violation of Arts. 4 and 21 as these provisions confers unguided power on the court which irrational and arbitrary. Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Sing v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. It should be considered whether there is something uncommon about the crime and the compelling circumstances for imposing death sentence after giving maximum weight age of the mitigating circumstances which is favour of the accused.
Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped and strangulated to death a six year old girl named Sakina. The convict challenged the death sentence and its constitutionality.  It was argued that death penalty is not only outmoded, unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the issue needs reconsideration which stands like sentinel over human misery, degradation and oppression.
The Supreme Court while endorsing its earlier view as to the constitutionality of death sentence held that the failure to impose death sentence is such grave cases here it is a crime against the society, particularly in case of murders with extreme brutality will bring to naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which the convict deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also a means of deterring other potential offenders. The Supreme Court in earlier case Banchan Singh v.
State Punjab upheld the constitutional validity of imposition of death sentence as an alternative to life imprisonment and it was further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjab held that death sentence is constitutionally valid and permissible within the constrains of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The decisions rendered by this court after full debate has to be accepted without mental reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat and in Allauddin’s case and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty. It is in the rare cases, the legislature in its wisdom, considered it necessary impose the extreme punishment of death to deter others and to protect the society. The choice of sentence is left with the rider that the judge may visit the convict with extreme punishment provided there exist special reasons for doing so.
PC should be sufficient safe guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considered the sentence of that magnitude justified. *** That is all about the constitutionality aspects of death penalty according to the interpretation of Supreme Court on Indian Constitution. The decisions of Indian Supreme Court that I have discussed above, however, couldn’t be throughout adopted in Indonesia. But, some of its reasoning can be considered as a guidance for any Indonesian stakeholders.