Essay on Safeguards against possibility of Miscarriage of Justice due to irrevocability of Capital Punishment.
The safeguards provided under the law to eliminate any possibility of erroneous judgment regarding award of death sentence which may briefly be stated as follows:—
Firstly, death penalty is awarded very sparingly only in cases of murder and offences against the State;
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Secondly, it is now an exceptional punishment requiring the sentencing Judge to record in writing why he considers alternative punishment of life-imprisonment as inadequate in the case before him.
Thirdly, the conferment of right of pre-sentence hearing under section 235(2) to the accused person offers him an opportunity to put-forth his plea for award of life-imprisonment as an alternative punishment for death sentence;
Fourthly, the cumulative effect of the provisions contained in Sections 354(3) and 235(2) is that sentencing is completely individualised and there is hardly any scope for error of judgment in sentencing the accused person;
Fifthly, the sentence of death passed by the Court of Session has got to be sent for confirmation to the concerned High Court under Sections 366-370 Cr. P.C. along with entire evidence material so that the High Court may scrutinise the same. The High Court has also the power to direct further enquiry or additional evidence to be taken if necessary;
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Sixthly, the provision of appeal to the Supreme Court under Section 379 Cr. P.C. and Article 136 of the Constitution; and
Seventhly, President’s/Governor’s power of pardon or commutation of sentence under Article 72 or 161 of the Constitution, as the case may be.
It is quite often argued that death penalty “brutalises” human nature and cheapens human life. It vitiates the humanitarian sentiments concerning the sacredness of human life. It is for this reason that David Pannick strongly argues that death penalty should be declared per se unconstitutional being cruel and violative of due process of law.
The arguments for and against death sentence may be summarised as follows:—
Arguments ‘for’ death penalty (Retentionist’s view):
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1. Elimination of murderers by execution is fair retribution and serves the ends of justice.
2. Punishment must match the gravity of offence and worst crimes should be severely dealt with for the sake of deterrence and security of the society.
3. Death penalty shows society’s reaction to heinous crimes.
4. One who ends somebody’s life, forfeits his right to life.
5. Death sentence should be looked as a form of retributive justice insofar as it provides satisfaction and peace of mind for many victims of crime and their families or relatives.
6. It is the most effective way to protect society against condemned offenders. This is the reason why death penalty has been held to be constitutionally valid.
7. Some authorities believe that death penalty is less cruel than a prolonged life imprisonment.
8. Considered from the economic point of view also it is for less expensive to execute a convict than to house him/her in a prison institution for life
9. It prevents over-crowding in prisons and helps in elimination of offenders who are potential danger to the institution thereby making maintenance of discipline in prisons easy.
10. It upholds rule of law because it discourages vigilantism or self-help on the part of victim’s family.
Arguments ‘against’ death sentence (Abolitionist’s view):
1. Death penalty is killing and all killings are wrong and therefore, death sentence is also wrong.
2. An execution arising out of miscarriage of justice is irreversible and therefore, it may result in great injustice to the person wrongly sentenced to death.
3. It is a lethal vengeance which brutalises the society.
4. Death penalty is unjust and often discriminatory against poor who cannot afford to defend themselves properly against a homicide charge.
5. It is a misconception to think that death penalty has a deterrent effect because hired murderers do take chance with the criminal justice system whatever be the consequences.
6. Death penalty is violative of human rights, particularly Articles 3 and 5 of the UN Declaration of Human Rights.
7. Quite a large number of murders are crimes of emotion or impulsiveness. Therefore, death penalty in such cases does not serve the ends of justice.
8. It denies the possibility of reformation nd rehabilitation of the offender.
A perusal of arguments for and against the retention of capital punishment in a penal system makes it abundantly clear that atleast its retention in the statute book would better serve the ends of justice, though in practice it may be used sparingly. This approach to capital punishment is well reflected in the judicial pronouncements handed down by the Supreme Court ever since the historic Bachan Singh’s case, where the Court laid down the “rarest of rare case” principle.