As a matter of policy, the act of taking another’s life should never be justified by the State except in extreme cases of dire necessity and self-preservation in war. Therefore, it may be concluded that though capital punishment is devoid of any practical utility yet its retention in the penal law seems expedient keeping in view the present circumstances when the incidence of crime is on a constant increase.
Time is not yet ripe when complete abolition of capital punishment can be strongly supported without endangering the social security. It is no exaggeration to say that in the present time the retention of capital punishment seems to be morally and legally justified. It serves as a reminder to everyone that in case of unpardonable crime one has to forfeit his own right to life and survival.
It must also be noted that the essence of criminal jurisprudence has always been to provide protection, as also to contrive measures against the fears both from within and without, for the individuals and also for the social order itself. The criminal jurisprudence while it provides protective devices through punitive sanctions, also aims at securing better social order by insulating against the unwarranted acts emanating from the individual. It is with this backdrop that the desirability or otherwise of the capital punishment has to be judged.
As a note of caution Shri S. Venugopal Rao who chaired the session on capital punishment of International Congress of Criminal Law, rightly pointed out that there is no objection to according a humane treatment to the offender but this should not mean that the victims be at the mercy of criminals who pose a danger to the society and deserve treatment through deterrent and preventive measures. Therefore, there is a need for searching out a viable alternative to deterrence, which has a vital protective function in society.
At present, as many as 127 countries out of 191 countries of the world have retained death penalty but renovations are continuously being made by them in the methods of execution so that the person on whom the sentence has been ordered suffers minimum torture. The Amnesty International had started a global campaign in 1989 for the abolition of death sentence but it has not yet fully succeeded in its mission though many countries have reopended favourably to its appeal and abolished death penal from their criminal law.
The Indian law in this regard, however, seems to be satisfactory as the Supreme Court in Allauddin Mian v. State of Bihar has stressed on the penological aspect of death sentence and observed that provisions of Sections 354(3) and 235(2) of the Code of Criminal Procedure, 1973, require the sentencing Judge to state reasons for awarding death sentence and giving an opportunity to the condemned person to be heard on the point of sentence, satisfy the rule of natural justice and fair play.
This enables the sentencing Court to endeavour to see that all the relevant facts and circumstances which have bearing on the question of sentence are brought on record and no injustice is caused to the accused.
In the instant case, the Apex Court noted that the trial Judge had not attached sufficient importance to mandatory requirements of the above provisions and the High Court confirmed the death sentence without having sufficient material placed before it on record to know about the antecedents of the accused, his socio-economic conditions and impact of crime etc. which rendered the rationale of the judgment doubtful.
The Indian sentencing law contains certain admirable principles which the Judges who have responsibility for passing sentence, should bear in mind while finalising the sentence of the accused. The objectives of sentences and the range of sentences have widened over the years and this calls for properly marshalled observation of the results of similar sentences imposed in similar circumstances in the past. The sentencing courts should therefore, keep themselves abreast of the penological developments, specially when the choice is between ‘death’ or ‘life imprisonment’.
In the ultimate analysis, it will be seen that considered from the angle of social justice and protection of society from hard-core criminals, death sentence is not unreasonable or unwarranted or obsolete type of punishment. The noted Italian criminologist Garofalo, while disapproving the abolition of death sentence from the statute Book commented, “when State abolishes the sentence of death, it authorises murderer and says to the criminal ‘the risk you run in killing a human being is a change of abode, the necessity of spending your days in my house [i.e. prison) instead of your own.’ Will it be proper to do so?
The death penalty is no doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably, discriminatorily, freakishly or wantonly, but if it is administered rationally, objectively and judiciously, it will enhance people’s confidence in criminal justice system.