Thus, the Courts may make use of death sentence sparingly but its retention on the Statute Book seems necessary as a penological expediency. Considered from this standpoint, the position as contemplated by Section 354(3) read with Section 235(2) of the Code of Criminal Procedure, 1973, appears to be sound inasmuch as it limits the use of capital punishment to a minimum without, however, abolishing it altogether.
The removal of mandatory death sentence for murderers and allowing judicial discretion to commute it to life imprisonment in suitable cases is perhaps the most appropriate approach to the use of capital punishment. In view of the present deteriorating law and order situation in India, total abolition of death sentence would mean giving a long rope to dangerous offenders to commit murders and heinous crimes with impunity.
Of late, opinion is mobilising in favour of extending the scope of capital punishment to economic offences such as profiteering, hoarding, smuggling, black-marketing and similar other anti-social acts which upset the solidarity of society. Although Russia and other communist countries prescribe capital punishment for such offences, the policy hardly seems expedient in context of Indian society.
In fact, forfeiture and confiscation of property or imposition of heavy fines by way of penalty would perhaps be more effective punishment in such cases and the revenue so collected may be utilised for the welfare of the community as a whole. Such offenders may also be sentenced to compulsory community service so that their potential may be utilized for the cause of nation.
Another pertinent question that needs consideration in regard to capital punishment is whether it is for the court or the legislature to decide about the retention or abolition of this sentence. Admittedly, legislatures represent the public opinion and the wishes of the people are truly expressed through legislative enactments.
Further, it is an established rule of interpretation that the penal laws must be construed strictly and their application should not be extended beyond the scope of the provisions of law. However, so far the question of punishing the offender is concerned; his personality, surroundings and circumstances which actuated him to commit the offence must be taken into consideration.
Obviously, it is the Judge and not the legislator, who by virtue of his superior training, insight and experience can best decide according to the settled principles of law as to what punishment should be awarded to the accused in a particular case. The Judges have readily at hand a systematic scheme of law to be applied to various offenders thereby extending the offenders due protection against prejudices whatsoever.
It may therefore, be stated that judiciary is perhaps the only competent institution to determine the cases of law violations and award of punishment to offenders. This function of the Court cannot be effectively discharged by legislatures. At the most, legislatures can formulate general policy for the guidance of Courts but they must ultimately leave it for the Court to apply those principles to individual cases.
Before concluding, a word must be said about the execution of former Prime Minister of Pakistan, Mr. Zulfiqar Ali Bhutto along with four others in the famous Nawab Mohammad Ahmad murder case. The Amnesty International in its appeal to Pakistan’s President Zia-ul-Haq for commutation of death penalty imposed on Mr. Bhutto stated:
“We regard death penalty to be cruel, inhuman and degrading punishment and also because in a trial like Mr. Bhutto’s conducted in a tense political atmosphere there is risk of miscarriage of justice.”
The President of Pakistan, however, declined to accept the international appeals for clemency and all the accused were executed. It is to be noted that the four accused had confessed their guilt while late Mr. Bhutto maintained his innocence.
Despite the Stockhom Declaration of 1977, which imposes upon the United Nations the need to abolish death penalty, this sentence is frequently being used as an instrument of repression against opposition, racial, ethnic, religious and under-privileged group.
The execution of the former President of Iraq Saddam Hussain on 30th December, 2006 is yet another glaring illustration showing how this extreme penalty is being used to wreck vengeance against a powerful opponent. He was hanged to death in a most secret manner when people of Iraq were busy celebrating Bakrid and Muslim devotees were on Haj pilgrimage to Mecca.
Ironically, the countries like U.K., Australia who are strongly opposed to death penalty, justified Saddam Hussain’s execution holding that he deserved that punishment for the crimes committed by him against Iraqi people. The U.S. President, George Bush going a step further called Saddam Hussain’s execution as an “important milestone” on the Iraqi political front. India, however, expressed its disappointment and considered Saddam Hussain’s execution as a regrettable event. It deserves condemnation on the ground of humanity.