Of all branches of law, the one that closely touches and concerns a man in his day-to-day life is the criminal law. Yet, the law is not in a satisfactory state in spite of many attempts made to define crime, but they all fail to identify what kind of act or omission amounts to a crime.
Perhaps the reason is the changing notions about crime. However, the definition and concept of crime varies not just depending on a particular group and society, but also as per the form of Government and political economic structure of a society.
Before going to the debate whether capital punishment should be abolished or not, let’s have a bird’s eye view of different theories and history of the criminal law. In primitive society, punishment was mainly retributive. Person wronged was allowed to have revenge against the wrongdoer. Principle of an eye for an eye and limb for a limb was prevailing. Thereafter the concepts of Deterrence theory, Preventive theory and Reformative theory came to being.
As we know different rulers have ruled India for centuries and impact of this is observed in one way or the other but India being a Hindu province Manu’s code (Manu Samhita) was largely prevailing throughout India. But at the advent of Muslim rulers, the people were forced to the criminal jurisprudence of Muslim law which derived its life breath from the Quran itself and the administration of this was entrusted in the hands of the Kazis. Thereafter during the British rule, the Britishers tried to engraft the Muslim system of administration of justice but faced much difficulty. As a result, in order to streamline the legal system, the then British India Governor General appointed the law Commission in 1834 which was the first law commission of India headed by lord Macaulay to prepare a comprehensive penal code by studying the existing state of law.
Manu, the great Hindu law giver, opined that punishment governs all mankind. Punishment alone preserves them, punishment wakes while the guards are asleep, the wise considers the punishment (Danda) as the perfection of justice. That means a wise civilization prefers the provision of punishment as it is the thing which deters the offender from committing crimes and it is the thing which preserves the harmony in the society.
And it is an irony that in our country where on the one hand the loopholes in the legal system are taken advantage by the criminals and on the other, the law Commission has advocated for abolition of the capital sentence. However, the whole world is divided into two groups on the point of whether death sentence is to be retained or be abolished. Some progressive countries like Belgium, Denmark, Holland, lithuania, Norway, Portugal, Spain, Sweden, Switzerland, Argentina, Brazil, Columbia, Equador, Peru, Mexico and France have abolished capital sentence. Whereas countries like the USA, the United Kingdom, Australia and India and other 110 countries have retained the death sentence in their respective criminal justice system. When the matter was referred to the law Commission of India for its valuable consideration, the Commission had submitted its opinion under its 42nd and 48th reports. The Commission didn’t recommend the abolition of death penalty. As per the Commission, capital punishment should be retained as an effective deterrent.
In view of peculiar conditions prevalent in India and the paramount need for maintaining law and order situation in country, India at present cannot take risk by abolishing death sentence. The Commission, however, recommended for certain restrictions in imposing death penalty.
But recently the law Commission has recommended for the abolition of capital sentence in all cases except in case of “Waging war against State” and “Terrorist attacks”. The Commission has pleaded that it will not be acceptable of the judicial system to snatch away the life of someone just because he has committed a crime. The recent stand of the Commission is also contradictory to the Supreme Court’s landmark judgment that “it will not be wrong to punish an offender with stringent punishment to the extent of capital sentence for heinous crime like kidnapping”. Apart from this, the Supreme Court is pronouncing almost every day land mark judgments on different issues which show that we have not yet reached at that point of time where we should think of abolition of capital
punishment.
Rather other offences for which the death penalty has been provided under Indian Penal Code apart from “waging/attempt to wage war/abetting waging of war against Government of India (Sec. 121)”, i.e. “Abetting mutiny actually committed (Sec. 132)”, “Giving or fabricating false evidence upon which an innocent person suffers death (Sec.194)”, “Murder which may be punished with death or life imprisonment (Sec.302)”, “Abetment of suicide of minor, insane or intoxicated person (Sec.305)”, “Attempt to murder by a person under imprisonment for life (Sec.303)” and “Kidnapping for ransom (Sec.364A)” and also under others laws like Indian Air-Force Act, The Army Act, The Navy Act and The Commission of Sati (Prevention ) Act etc. are having much reasonableness and justification.
And if we look at our penal code, there is enormous scope to ensure how an innocent should not be wrongly punished. IPC itself provides lots of exceptions in chapter IV where murder becomes culpable homicide not amounting to murder, because the required intension is lacking there, as the basic principle of criminal jurisprudence depends upon the “Mens Rea” and the person is exempted from capital sentence thereby.
Apart from that the “Beyond Reasonable Doubt Theory” and the constitutional provisions are applied for pardon (to the President U/Art.72 and to the Governors of the States U/Art.161). Here is a scope for a culprit to be exempted from the infliction of capital sentence if the President or the Governor of State is satisfied over his/her plea and writes off his punishment.
The aim of protecting society is sought to be achieved by application of the principle of deterrence, prevention, retribution and reformation. Among all, deterrence is virtually regarded as the main function of punishment, the others being merely secondary. In fact a perfect system of criminal justice can never be based on any of single theory of justice. Punishment should be proportionate to the nature and gravity of crime. The Supreme Court has also held that death penalty is not violative of fundamental rights under Articles14, 19, 21.
Criminal law seeks to protect not only the individual but also the very structure and fabric of society from undesirable, nefarious and notorious activities and behavior of such individuals or organisations who try to disrupt and disturb public peace, tranquility and harmony in the society.
While concluding it may be observed that capital punishment is undoubtedly against notions of modern rehabilitative process of treating the offenders and it does not offer an opportunity to the offender to reform himself. As a matter of humanitarian consideration, the act of taking another’s life should never be justified by the State except in extreme cases of dire necessity and self preservation.
But the retention of capital punishment in the penal code of India seems expedient keeping in view the present circumstances with high incidence of graver crimes. The object of punishment is to protect society from mischievous and undesirable elements by deterring potential criminals or habitual offenders from committing further offence and by reforming and turning them into law-abiding
citizens. It can be suggested only that the abolition of death penalty will not do any good to the society at large rather it will prominently encourage the potential criminals and habitual offenders.
(The writer an advocate, Odisha High Court, and Managing Trustee, USIFoundation, is a research scholar at PG Department of law, Utkal University. tps.indian@gmail.com, Mob: 9437663493)