The Capital Punishment has been in force from the time immemorial. From the ancient times to modern times, the majority of the penologists, jurisprudents, justices, politicians, etc., strongly favoured this punishment. There are several reasons expressed in support of them. They are narrated hereunder:
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1. Deters people and other criminals:
It is the highest punishment known to the man. It determines the life and extinction of a person. By implementing capital punishment on a criminal, he becomes as a lesson to the remaining people of the society, who shall deter from crimes. As the rate of capital punishment is very meager in India, the rate of heinous and criminal acts has been increasing in India year by year.
2. Social need:
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When a limb of the body of a person is damaged and spoiled, and becomes unable to be treated, the doctors operate and remove that limb from the body.
Similarly, when a person has become dangerous to the society, and is not in a position to be reformed, and no excuse can be given to his heinous act, it becomes social need to remove such person. By allowing him to be in the society means to give him chance to spoil the society further.
It is a social hygiene, i.e., treating of the prevention of disease and the preservation of health of the remaining society.
3. Economic saving:
If a criminal is put to capital punishment instead of keeping him imprisonment for life, it saves public money. If a criminal is retained in prison for his remaining life or 20 years or 14 years, or so, the State has to incur huge money on him for his food, accommodation, medicines, and watching.
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It comes to lakhs of rupees. Further the space in the prisons is another problem. Now almost all the prisons are overburdened. Such criminals also spoil the brains of the remaining prisoners instead of repenting or reforming themselves.
4. Humanitarian:
The painful methods of execution of capital punishments were already abolished in the majority of the States. Now all the States, with exception of few States, execute the capital punishment on criminals with light pains and sufferings, viz., hanging, shooting, electric shock, etc.
These types are formulated depending upon humanity. However, one should recollect what the criminal did, and how he behaved with the helpless victim, that too without any fault of such victim. Examples: (a) A-a person of 30 years old is stronger than B-a 8 years girl.
If A rapes B, and kills her brutally, one can imagine how B might have suffered with the sadism and brutality of A. Here, under capital sentence, A is put to death very easily. He suffers no pains; (b) Chalapathi Rao and Vijayavardhana Rao, two young person’s attacked one RTC bus and plundered them at Chilakalooripeta, and burnt the 32 passengers into ashes.
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For no fault of several persons, including men, women, children, aged, diseased, etc. were burnt in the flames without their fault. The Court imposed death sentence on them. The two criminals may be committed to hanging, and their lives can be removed within seconds without pain or suffering.
But what will be the position of those victims’ families and their dependents? Who will calculate the sufferings of those victims in burning for several hours? Even then, the capital punishment for such criminal is executed without pain and suffering on humanitarian grounds.
5. Definite:
The capital punishment is definite. The criminal cannot escape in future and can trouble the society. He is terminated from the world. If he is kept in prison for life, there are chances of escaping, causing pollution to other soft minded criminals, causing criminal acts again on parole, causing cruel and illegal acts even after his release after 14 years or some years after. The capital punishment avoids all such incidences.
6. It is a moral war:
There are certain persons, viz., sadists, sexual perverts, etc., who have no sensibility or shame to do illegal acts. There are persons belonging to terrorist groups, who are most intelligent and well educated, and plan to blast the bombs on the innocent persons, such as Gokul Chat Bomb blast, Bombay bomb blasts, attack on Parliament, etc. Moreover they feel proud in doing them. Such persons rape the children, women, and kill them brutally.
They enjoy only in harassing the physically weak persons. After doing their atrocities against such children or women, they kill them into pieces.
They have no moral values. In certain cases, a father rapes his own daughter, a son rapes his own mother, a brother rapes his own sister, etc., and with a fear that such woman will disclose his inhumane and brutal act to public, he kills her without mercy. Is such criminal entitled to live in the society?
No. Executing capital sentence against such person is a moral war of the society. Morals are created by the Society for the welfare of entire people of such society. Such morals are followed as customs, and such customs become laws later.
As Bentham’s Utilitarian Theory says “greatest pleasure to greatest number”, by removing a minor number of culprits by capital punishment, affords security and pleasure to entire society. Garofalo, and his Teacher, Lombroso, Sociologists, strongly support the capital punishment.
7. Selective Process:
Darwin proposed the doctrine of “Struggle for existence”. This theory says that the animals will be preserved, only if they can fight with their enemy animals and with the nature. Similarly, the society can be preserved only if it can fight with anti-social elements.
Capital punishment is a selective process to eliminate such anti-social elements. For the healthy existence of a good society, it must remove the bad germs, viz., criminals. If they are not removed, such germs will grow and spoil entire society, and shall destroy the very roots and existence of the society.
8. It is a legal demand:
Generally the principle of punishment is grown up from a legal demand of the society. Capital punishment is also one of such demands. If a cruel and brutal minded criminal is not punished, and he is left free to move in the society, it destroys the very structure of the society.
Every person becomes cruel. Human civilization becomes “jungle justice”. No body will respect the law and order. Mighty rules the weaker. The physically strong person kills children, women and weak persons for the smallest reasons. The peace in the society disappears.
Thus the prosperity of the society will be stopped. Therefore, the law demands to punish the lawbreakers. The capital punishment was evolved some centuries ago due to legal demand, and still it is continuing, because the majority of the human beings accepted it, and conceded to it. It has become necessary to eliminate the most violent law-breakers. Else the majority people cannot live peacefully
9. Rarest of the rare:
The capital punishment is not imposed for every small or big offence. Only in cases of grave, unpardonable, and heinous crimes, it is imposed. There are 511 Sections in the Indian Penal Code defining various offences and prescribed offences.
Out of 511 sections, only less than 10 Sections impose capital punishment. In those crimes too, the crime of the wrong-doer must be proved by the prosecution beyond any doubt to the entire satisfaction to the Court.
In majority of such cases, the Courts acquit the accused on several reasons, such as discretion, defective prosecution, hostile witnesses, benefit of doubt, etc. In certain cases, viz., rape, plundering of buses, trains, etc., it is very hard for prosecution to procure the evidence.
The general public fear to give evidence before the Court, with the fear of goondaism and criminal force from the criminals. Some of the criminals offer bribe to the police, public prosecutors, witnesses, etc. They appoint eminent advocates, who twist the evidence in cross-examination, argument, etc. They arise certain complicated legal points.
Under such circumstances, the Court has no way except to acquit the criminals. In the rarest of rare cases only, the Sessions Judge imposes death sentence, if the prosecution proves the offence successfully and beyond the reasonable doubt.
After that, the High Court has to confirm such death sentence. After confirmation, the convict can appeal to the High Court and then to the Supreme Court.
Even after, the appeal is dismissed by High Court and the Supreme Court; there are chances to the convicted to petition to the Governor and to the President. This takes too much time. This has happened in the case of Chalapathi Rao and Vijayavardhana Rao of Chilakalooripeta bus burning and 32 passengers killing case.
Bachan Singh vs. State of Punjab (AIR 1980 SC 898)
Brief Facts:
Bachan Singh-the appellant murdered Desa Singh, Durga Bai and Veeran Bai. The eye-witnesses deposed that the accused killed them very brutally. The Sessions Judge imposed death penalty. On appeal, the High Court also confirmed the judgment of the Sessions Judge. He appealed to the Supreme Court.
Meanwhile some other Humanitarians filed writ petitions before the Supreme Court contending that the death penalty would be unconstitutional and it was against the Articles 19 & 21. Death punishment is serious. This type of punishing power should not be vested in the hands of lower Courts.
Sunil Batra, Mai Singh, Nathu Singh, Kartar Singh, Sher Singh, etc., were the petitioners. They contended that Section 302 should be struck down as unconstitutional and void in so far as it provides for imposition of death penalty as an alternative to imprisonment for life.
Judgment:
The Supreme Court quashed all the petitions and also the appeal.
Principles Lay Down:
1. Sec. 299, Penal Code defines ‘Culpable Homicide’ and Sec. 300 defines culpable homicide amounting to murder. Sec. 302 prescribes death or imprisonment for life as penalty for murder. It cannot, reasonably or rationally, be contended that any of the rights mentioned in Art. 19 (1) of the Constitution confers the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Art. 19 (1).
2. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter aspect of the matter it can be held that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal code but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say which may or may not be passed. Therefore, Sec. 302 does not have to stand the test of Art. 19 (1) of the Constitution.
3. Whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved, either way, because statistics as to how many potential murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not, altogether impossible, to collect.
Such statistic of deterred potential murderers are difficult to unravel as they remain hidden in the inner most vastness of their mind. Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one.
4. It is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Sec. 302, Penal Code is unreasonable and not in the public interest. Therefore, it could be concluded that the impugned provision in Sec. 302, violates neither the letter nor the ethos of Art. 19.
5. The provision of death penalty as an alternative punishment for murder is not violative of Art. 21.
6. There are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. It cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Sec. 354 (3).
Judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.
It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with even more scrupulous care and humane concern directed along the highroad of legislative policy outlined in Sec. 354 (3), viz., that for persons convicted of murder, life imprisonment in the rule and death sentence an exception. A real and abiding concern for the dignity of human life through law’s instrumentality that ought not to be done save in the rarest of rare cases when the alternative option is unquestionable foreclosed.