A Case for a Relook at Capital Punishment

Jasdev Singh Mehndiratta, Advocate
Office : H.No. 3180 Section 71, S.A.S. Nagar, Mohali - 160071, Landline: +91-172-2273302, +91-172-5263000

Date : 18/03/2019 - Location : H. No. 3421 Section 71, S.A.S. Nagar, Mohali - 160071 Cell: +91-9872223180

A Case for a Relook at Capital Punishment

Jurists have been debating for centuries whether death sentence should be retained or abolished as a penalty. Debaters on both the sides advance well-founded and highly convincing arguments and consequently lawmakers find it quite difficult whether to retain the capital punishment on the statute book or not. Some of the most advanced States, like the U.S. have abolished the death sentence, but killings with legal sanctions by such States continue, which fact suggests that even those States which have abolished death as penalty, at times feel convinced that killing of ultras is the only solution to put an end to the violence unleashed by them. Killing of Osama Bin Laden can be taken to be an example. On the other hand there are some States which believe that perpetrators of heinous crimes deserve only the death punishment so that law abiding citizens may lead peaceful and fearless life. Some Islamic States follow this line of thought. But even in such States the law provides for escaping the death penalty. For example a murderer can avoid the death sentence by paying blood money.

Killing of ultras by advanced States and escaping death sentence on payment of blood money in States where the law prescribes death as the only punishment for murder, demonstrates that an extreme view on the issue cannot be stuck to and at times recourse has to be taken to the punishment other than the codified one.

In our country prior to the enforcement of the Code of Criminal Procedure, 1973, courts had absolute discretion to award either the death penalty or life imprisonment in heinous crimes like murder, dacoity etc. Now section 354 (3) of the Code of Criminal Procedure, 1973 requires that special reasons should be recorded, by the court for imposing death penalty, where a person is convicted of an offence punishable with death or life imprisonment. Interpreting this provision a Constitution Bench of the Supreme Court of India in case titled as Bachan Singh v. State of Punjab held as long back as in the year 1980 that death sentence should be awarded only in the rarest of rare cases when alternative option is unquestionably foreclosed.

A landmark judgment of the Hon'ble Supreme Court of India, delivered on 5th March, 2019 by which on review of an earlier judgment dated 30th April, 2009 whereby an appeal by three of the six convicts, against their conviction and death penalty, along with the appeal by three other convicts in the same case had been dismissed, demonstrates that at times persons who deserve to be acquitted get not only convicted but also sentenced to death due to error of judgment. On review the Hon'ble Supreme Court has not only set aside the death sentence, but even acquitted all the appellants of all the offences, for which they were earlier held guilty by it. Judgment holds that evidence on record does not prove the charge. The judgment is definitely a shot in the arm of those who advocate abolition of death penalty.

Though awarding of death penalty in certain cases may be the only choice for doing justice say in cases like the recent Pulwama attack or attack on the Parliament or the cases in which female children are raped and then killed to destroy the evidence yet some fool proof methodology is required to be put in place, to ensure that the death penalty is awarded when the crime stands proved to the hilt and not just beyond reasonable doubt. For recording a conviction law requires that the case must be proved beyond reasonable doubt. This requirement may be alright upto the stage of recording the finding whether accused is guilty or not. This proposition is based on the wisdom of very illustrious judges and jurists. But when it comes to awarding the punishment the decision makers should be fully convinced, based on the evidence on record and no other consideration like morality or public perception etc. that the crime has definitely been committed by the convict. Even the slightest doubt lurking in the mind of the judges, about the culpability of the convict, should be a ground against the award of death penalty, because this penalty once executed cannot be undone, whereas other penalties can be, if at a later stage, it is found that the convict was innocent or that the circumstances under which he happened to commit the crime, did not justify death penalty.

Further a very important lesson, which the persons administering the criminal justice, need to learn from this case, is that every precaution should be taken to ensure that no innocent person is convicted. The media should also not create unwarranted hype about a particular case, howsoever heinous the crime may be, because judges also are human beings and at times they get swayed by the media reports. Judges' job is very solemn and onerous. They can perform it much better if the media acts with a little restraint and does not suggest its own findings and conclusions.

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