�IMPLICATION OF DEATH PENALTY ON MODERN PENOLOGY� (By: Shrey Tripathy & Udayangsu Basak)

“IMPLICATION OF DEATH PENALTY ON MODERN PENOLOGY”

Authored By: Shrey Tripathy

5th  Year,Bba - Ll.B

Kiit Law School,Kiit University,Bhubaneswar

&

Co-Authored By- Udayangsu Basak

5th  Year,Bba - Ll.B

 Kiit Law School,Kiit University,Bhubaneswar

Abstract

This research has been aimed to study the topic in a much more dynamic and comprehensive approach highlighting the different angles and factors pertinent in the awarding the death penalty.  The research touches all the essential key points which are essential for understanding the death penalty system so as to draw out the actual analysis and the need to reform the system. In this topic research has been made out via three different perspective all together i.e. the Constitutional perspective, the penal perspective and the comparative perspective. More so a few introductory areas of research has also been ponder upon  such as the historical viewpoint, the scope, various case laws and landmark judgments of various national and international  importance which has to certain extent transformed the present position with regards to the same in some countries and has much influenced those countries who are still lagging behind to bring in some reforms or alteration with respect to the same. Various procedural aspects has also been discussed and focused upon which plays a vital role in order to reach a conclusion as to the awarding of sentence.Emphasis has been driven towards analyzing with respect to landmark cases in the history of India and various judicial pronouncement. It involve the study with the help of various case laws and the Supreme Court decisions and opinion of judges, jurists and legal scholars. Various philosophers has also given their view as to the validity of death sentence and further with a better comparative study, one would able to point out with his /her conscience that do we any longer need to be recognize the need of Capital punishment or should it be abolished due to its abhorrent nature. Also meanwhile due emphasis has been laid out towards the various theories of punishment and the analysis has

been drawn as to which of these are best suited in a particular situation or circumstances. And as to whether the execution of the sentence or the manner of execution violates the constitutional framework as to Right to life under Article 21. It also gives an analysis as to how effective the doctrine of (R-R) Rule is and how diligently it has been applied by our Indian Courts. It also analyses as to whether the death sentence in particular has any deterrence effect to the same with the help of recent case laws.

In this paper we have highlighted the implication of death penalty on modern penology, its procedural aspects and sentencing disparity as to what are the challenges and deliberations before the Indian Court and judges while imposing Death sentence. What persuasion or dogma does the modern penology have on the same. We have been also accentuating the views of various legal Scholars and jurist having much profound and comprehensive societal and legal acumen and apprehension. Due emphasis has also been given to various landmark and historic judgements which has altered the contemporary legal stance as to reach a correct justification based on pertinent legal rationale. Moral and ethical standards are of vital importance when it comes to awarding of death penalty rather than being coaxed by public opinion and sentiments.

Key words: Crime, Sentencing, Aggravating, Mitigating, Punishment, penology, rarest of rare, Death penalty, Offense, Court, Judges.

Research Objectives:

- To find out the lacunae if any in the procedure of awarding the death sentence.

-To discover the various trends and modern views as to the infliction of capital punishment with regards to modern penology.

-To find out the effectiveness and efficacy of death sentence and whether it is fulfilling the objective with which it was incorporated by the legislature.

-Is it having any deterrent effect in society?

-Whether it is constitutionally valid?

-What are the parameters which are to be considered before the infliction of death sentence.

-Do the courts and judges have discretion while they award the sentence of death.

-What role does the media, political and public sentiments and perceptions has on influencing the courts to award death penalty and how the courts and judges can overcome the same.

-Is sentencing disparity a cause for concern.

-How significant is the due process of law in awarding of the death sentence.

Research Methodology:

A.) Methodology approach:

 The entire study has used the qualitative and quantitative methodology in order to examine the data collected and to conduct an empirical study altogether.

B.) Data collection :

This research has been laid out to collect authentic data across the globe and to enlist the same before the reader so as to know the factual matrix. Various data relating to the Survey of major agencies in India and other countries across the world has been incorporated. Much of the data also relates to the NCB and the historical analysis of the same has been done in order to know the current scenario and to draw a comparative analysis in order to study the same. Data has mainly collected through secondary sources much from the legal sanctions, case laws, various law journals and legal articles, law  commission reports, commentaries, project reports and statistical data and survey. More over primitive data types have also been given due significance .

C.) Evaluation and justification of methodological choice

The methodological choice adopted in this paper is very much apt and suitable befitting the topic as it is a very sensitive issue majorly pertaining to the principles and jurisprudences of criminology. It is pretty much clear that the methodologies used to conduct the research in the present paper is very much appropriate as it is the tested means of authentic information and not directly the view and the opinion of the people which can be biased or can change due to the emotional and psychological factors which can misguide the reader. Hence the methodology is directed towards the actual facts and findings with authentic figures so that a true inference can be drawn out of this topic after duly reading the article.

Sentencing disparity a major cause of concern in modern penology:

“The major issue is the disparity faced by the accused in the sentencing policy as there is no straight forward rule a s to the infliction of death penalty. As a general rule the death penalty is awarded in the rarest of the rare cases where the court deems fit to inflict. It is considered to be the harshest and the gravest form of punishment in India and is certainly awarded in such cases where the crime has been committed in the brutal and very heinous manner. As there is no such parameters on which such can be measured , hence the same can be a cause of concern. In the case of Rajendra Prasad vs State of Uttar Pradesh[1], Justice Krishna Lyer draws the attention towards the eccentricity of the sentencing policy and stated that the following determines the sentencing facet:

Stating the law to be candid as such . So its not always correct to say that the judges by computing the lethal injury or the nature of weapon or by counting on the deceased victim or person or by the degree or the extent to which terror has been caused or by looking at the mitigating circumstances such as the age, motives, provocation, cognitive mind  or certain aggravating factors like the barbarous or savagery act or the plan with which the murderer moved forward or the societal  pressure etc. “A greater margin of subjectivism or a preference for ancient English precedence that could supersede, theories of crime and modern penology, Behavioral  prominence, social antecedents, human rights perspective literacy about crime and its penal consequences or fanatical reverence – this multiplicity of forces plays a major role in swinging the pendulum of the sentencing policies and departing from the usual sentencing trend.”[2]

The major impetus of sentencing are –rehabilitation, retribution, reformation and deterrent  . Among the following reformation and rehabilitation are of greater public policy[3]. Much importance must be given to the fact that the rights of the prisoners or issue of prison reforms and measures of sentencing or the sentencing policy reforms shall be given an equal weightage as that of the “victims right” as the prisoners or the person undergoing sentence also have human rights and therefore we must base our sentencing policy on the following points. Now here the point is the divergent point of view of the judges on inflicting a wide range of varying sentences. More so such disparities are much more transparent in death sentences.

In the case of Suresh Chandra Bahri vs State of Bihar[4], the apex court denoted that ‘the denunciation of judicial sentencing came to the limelight in various forms –that is unfair as evidence in disproportionate sentencing i.e. it is either inadequate in some cases or is very harsh in some cases. So it’s very often seen that there is a substantial amount of disparity in sentencing policy.”

In the case of Dhananjoy Chatterjee alias Dhana vs State of West Bengal[5], the Court identified that there are admitted disparities in criminal sentencing by the courts particularly in fierce and brutal crime against the women. While some offender obtain stricter and harsher sentence whereas others receive grossly distinguishing sentence for the identical crime. Apart from  it is very dumbfound or dreadful to have the similar offenders who go unpunished .

In the case of Ravji alias Ram Chandra vs State of Rajasthan,[6] the apex court pointed that -:

“It is the nature and the gravity of the offence and not the offenders which germane for contemplation of pertinent punishment in a criminal trail rather if the contrary happens the court will failing in its responsibility and fidelity. So the punishment awarded for a crime shall not be irrelevant but it should rather be in conformity with the crime and the brutality with which it was perpetrated(degree of heinousness or the enormity with which it has been committed). It should respond to the cry of the societies at large against the criminals”.[7]

Therefore the Court is contemplated to act set off the sentencing policy in such manner that the sentence inflicted cast upon the moral standards or the conscience  of the society and respond to it’s cry.[8] So it is pretty clear that there is a crying need for the evolution of an exhaustive and well-formulated sentencing policy to ponder upon.

Death Sentence/capital punishment and its procedural aspects-:

“Death penalty is the most severe and despotic and is considered to be the gravest or harshest punishment which the IPC provides which involves judicial manslaughter or executing the accused person. So there has always been conflict in this regard between the group of ethical philosophers or the sect of people in society who believes in the notion that death sentence is very much required

to be inflicted upon the person committing brutal and heinous crime which is committed very savagely . They believe that they have no right to life and the same should be retracted by the state as such people can not be reformed and is an evil to the society. Whereas the progressionist approach is that these people shall be given a chance to reform as taking their life is not a recourse to it rather they believe that “judicial killing is a court-mandated murder”[9]

Death sentence is not a mandate in any offences prescribed in IPC  but is certainly used as an upper limit in punishment as prescribed by the statute. Whereas the statutory provision does not sets-out any parameters on which the death penalty can be awarded. So the discretion wider in ambit of choosing between the life-imprisonment and the death penalty is solely rest upon the judiciary. So the same is irrevocable and if the court does not use its proper judicial mind in awarding the same, it might lead to abuse in the process of law and can be oppressive and arbitrary. So the factors like nature, circumstances, the mitigating and the aggravating factors might be taken into consideration while awarding the same . Whereas section 354(3) of Cr.P.C provides as under:

“where the conviction is for the offence punishable with death or imprisonment for life or for years, the judgment laid down by the court shall contain the reasons for such awarding of sentences and special reason particularly in cases of death sentence. There is yet another procedural safeguard under section 366 Cr.P.C  which mandates that the death sentence awarded by the sessions court shall be confirmed by the Higher Court which might lead to the confirmation by the Higher court by directing the lower court to carry out further inquiry or to consider any further evidence on any legal point on which the accused has been convicted.”

Further as per section 416 of Cr.P.C, if the Court finds that a woman who is pregnant is to be executed , the court shall postponed such sentence or may commute it to life imprisonment if it deems fit.

Section 303 of the Code of Criminal Procedure states that “any person accused of an offence or under whom the proceedings has been instituted under this code, may of right be defended by a pleader of his/her choice.”

Test to apply in awarding the death sentences –:

As we all known that life imprisonment is a general rule and death penalty is an exception. So the doctrine of (R-R)rule is applied that is the doctrine of “ rarest of rare”. This was firstly laid down in

a very landmark case of Bachan Singh vs State of Punjab[10], where the constitutionality of death penalty was affirmed by the apex court. A  five-member bench stated as follows:

-The extreme penalty of death shall be imposed in extreme and gravest cases.

-Not only the circumstances of the crime should be taken into consideration rather the circumstances of the criminals shall also be considered.

-the infliction of death penalty should only be considered when the life imprisonment appears to be inadequate and insufficient altogether as “life imprisonment is a rule and death sentence is an exception”

-we need to draw a proper balance and compilation between the aggravating and the mitigating circumstances before arriving at the conclusion.

Death penalty is awarded where the crime has been committed in extremely harsh, brutal, heinous, dastardly or diabolical manner which can arouse fierce umbrage in the community.

Pre 1980 we were to consider just the aggravating and mitigating circumstances of the crime but post 1980 after the constitutional bench judgment we are to also look into the circumstances of the offender as well.

“Punishment should not be seen as an element to revenge rather it should be seen as a policy of reformation. “This should be the vision of a progressive society”.

When the aggravating circumstances far exceed the mitigating circumstances, death penalty is to be awarded.

However the Supreme Court stated that a just balance between the aggravating and the mitigating circumstances is to be drawn.

“Bachan Singh proposed to go beyond the circumstances of crime and to go into the circumstances of criminal as well.”

In Machhi Singh[11] three-judge bench of the Apex Court, expanded the scope of Bachan Singh’s case laid that much emphasis was to be given by reciting those  “aggravating factors” it considered essential for inflicting death penalty . It has given due importance to the crime factors rather considering the both crime as well as criminal. Thus it diminished and obliterated the scope of the verdict laid down in Bachan Singh’s case.It failed to take into consideration the aggravating and

mitigating circumstances of the criminal which the Bachan Singh did. But it took twenty long years to realize that it ignored its own relevant and binding precedent after passing of six tragic death sentence which was in contravention to its own judgment of Bachan Singh. It was a case of gross judicial impropriety

In the case of Sangeet vs State of Haryana[12], the Supreme Court contended that the decision with respect to Machhi Singh was erroneous and its culmination of the aggravating and mitigating circumstances approach. Thereby doubting the propriety of balancing test.

Factors to be considered (mitigating factors) while awarding death sentence :

-Age

-possibility of reform

-criminal antecedents

-motive if any

-circumstances under which the crime was committed

-nature and manner of crime

-Magnitude of crime

-personality of the victim

-Probability of the accused to be reformed

This proposition is not correct that a crime just because it is brutal and heinous barely does not make it prone to death sentence.

“When such crimes are committed in such a manner which is harsh, brutal, dastardly or diabolical in nature so as to arouse utmost anguish in community and in order to petrify the cumulative conscience of the community and to make one lean towards the death sentence. But this does amply call of the need for which such punishment is inflicted .The court has to see as to what fits the best in order to serve the purpose of the criminal law and not just blindly rely upon the above factors. If the above factors are present the court in addition to it has to examine that whether the accused is a peril to the society or would continue to be so. The court should be convinced that the accused could no more be reformed or rehabilitated . The court should also draw a just balance between the aggravating and the mitigating factors.

 It is very much expected that the holder of the judicial power should not falter their personal view or opinion and also should not be forced or compelled to act on public pressure or sentiment or media. As public opinion has no role to play and is irrelevant.[13]”

“So a distinction is to be premised between the gruesome and horrendous homicide.”

Now there is acid test to be applied in cases of death penalty laid down by ‘Justice Sinnha’, Judge.

When there is an overwhelming  public opinion favoring the death penalty, then the acid test of Constitutional proprietary begins . Therefore the closure to the victim should not be taken into consideration when a judge sits on the dice of sentencing . So the sentencing should not be commensurate with the public policy and opinion neither based on media trial held outside the court which might be futile to the sentencing policy by the courts. The court should act as a neutral person taking into consideration all the above rules laid down in various landmark cases on sentencing and use its judicious mind as to inflict upon the sentence of death.

Delay in execution- Shouldn’t it be an extenuating factor?

Initially the accused has to face such a longer period of trial languishing in jail and the process of law which might be a bit frustrating and tormenting. As held by the Supreme Court in its earlier decision  that Right to speedy trial is an integral part of Article 21 of the Constitution of India i.e. Right to life and liberty.So the Supreme Court laid two years rule in the case of TV Vatheeswaran vs State of Tamil Nadu[14] ,in which it stated that the person who has been convicted under the sentence of death and if from the date of such conviction by the trial court, a period of two years expires, the accused has a sufficient ground for getting his death sentences commuted to life imprisonment. Such period of computation includes a period of two years in which all reasonable allowance of the time obligatory for appeal before the Higher Court and the Apex Court  and the period necessary for the mercy petition to be executed . Delay  in execution of death sentence will entitle the castigated individual to approach the court under the constitutional remedy provided under Article 32 of the Constitution of India. After examining the nature of delay and the circumstances ensued after the pronouncement of the sentence via judicial process. The court may

look into the question of unjustifiable delay in light of the circumstances of the case and thereafter should decide the validity of the execution to be carried out. A five -judge Bench of Triveniben vs State of Gujarat [15] overruled the earlier decision of Vatheeswaran’s case stating that the two years rule is not a fixed period for the death sentence to be commuted into life imprisonment.

Further in Jagdish vs State of M.P.[16], the Apex court reiterated that there is no such yard stick to measure the delay in execution and consider the same to be an extenuating factor. The court might proceed with the sentencing execution if it thinks it still satisfies the rarest of the rare doctrine and is in the interest of people.

"In Mithu Singh vs State of Punjab[17], a Constitutional Bench of the Apex Court declared section 303 of Indian Penal Code as unconstitutional on the arena that it violates Article 14 and 21 of the Indian Constitution. After examining the cantena of judicial pronouncements, the Court held as following:”

“We are of the opinion that section 303 of IPC must be struck down and it should be declared void and unconstitutional . All cases of murder will now fall under section 302 of the Indian penal code and there shall be no such obligatory sentence of death for the convicts charged under murder.”

In the words of Justice O Chinnappa Reddy J. “section 303 of the IPC is prolepsis which means that it is ineffective and it seems to be out of tune with the efflux of time. It specifically transgresses Article 21 of the Constitution and the modern jurisprudential approach. It is impossible to hold the same as constitutional. Pointing out the nature of the above section and death penalty the judge states as following : the sentence of death is so irrevocable and so impossible to restore life that without applying the judicial mind, it would be unfair to comprehend to be just ,fair and reasonable. It may be denounced as arbitrary and oppressive. Such an action could not be justified under the normal judicial caliber and contemporary idea of modern penology.

“There is a very famous legal maxim ‘justicia non novit patrem nee matrem’ which means that justice knows no father nor mother is a very primitive doctrine . But it is to be noted that the same can not be used meticulously in determining the sentencing policy. “

In the case of Sushil Murmu vs State of Jharkhand[18], the Supreme Court was called to determine

the exclusivity of death sentence in which the death of a child was caused in the most barbaric and diabolical manner and hence the apex court following the decisions of Machhi Singh and Bachan Singh upheld the death sentence stating the case to be falling in the category of rarest of the rare.”

Critical analysis of death penalty :

Now as we know that there is a majestic philosophy that “every saint has a past and every sinner has a future” as no man is a born criminal, it is the circumstances which transform him into a criminal. So the object of punishment is to reform and not revenge. It is to make a person regret for what he/she has done and to transform him into such a human being which is tolerable in a civil society as moral law abiding and harmless social being. So every effort should be made to recreate a human being .

Now the question is as to what if the death penalty has been inflicted to an accused by the highest court of law in India and after its execution it is later found that the person was not a convict actually. It might happen that the courts might be mistaken as to a decision due to lack of evidence or some new fact or evidence which might come later which can affect the decision of a case either by acquitting the accused or by commuting the death sentence. Will the court be able to return the life of that innocent person or would it be able to pay the cost of its life as ‘money cannot buy a life’. Nothing can be done in such cases. And such cases have occurred in the legal history of India. Therefore the death penalty is irrevocable . Once inflicted or executed cannot be revoked. Hence its an exception to the general rule and is to be provided in the rarest of the rare cases and the court before arising at such conclusion of inflicting death sentence must examine the facts and evidences and all aggravating and mitigating circumstances duly and thoroughly and apply its judicial mind or reason or fair play into it rather than deciding the same according to the whims and caprice. If only after using all such remedies the court find it to still lies under the purview of rarest of rare, only then such discretion of awarding death sentence must be reached only then the sentence would meet the end of justice . “The accused must be proved guilty beyond all reasonable doubt” has much relevance in the cases of death penalty as compared to other cases. Hence we have a very famous saying that “let thousands of criminal be set free but not a single innocent should be punished”.

In the case of Jagmohan Singh vs State of U.P.[19], it was held that deprivation of life is constitutionally valid if done according to the procedure established by law.

“We need to remember that “Society’s perspective is generally formed by the emotionally levied narratives, which need not necessarily be legitimately accurate, accurately informed or procedurally correct.” It was stated by my lordship in the case of Channulal vs State of Chhatisgarh[20] , that the capital punishment is in distress to achieve constitutionally valid penological goal. It is the obligation of the court to constitutionally correct even when its view stands on counter-majoritarian  is a factor which the court must consider when it deals with the collective conscience of public opinion.It also stated that Bachan Singh has failed to prevent death sentence from being freakishly imposed.”

Conclusion:

In view of Modern penology:

The approach as to the “Murder has killed so let’s kill the Murderer”. This is an incorrect approach as the object of punishment in modern penology is to ‘reform rather than retaliate’. The authentic meaning of the retribution is to punish in a just , fair and reasonable manner.

Liberty is of utmost significance rather than executing .It is crystal clear that deterrence is not obtained by killing the person accused of the offence. Thus the practice of manslaughter is not acceptable in a civilized society. Therefore retribution must not be stipulated as a retaliation. It should no longer be seen as revenge or retaliation.

We are generally swayed by the nature of the crime which is an aggravating factor but hardly anyone bothers about the mitigating factors like she, social status, upbringing , literacy level ,economic background, mindset and stage of mind .

With regards to deterrence it does not always mean an ‘eye for an eye’ or a ‘tooth for a tooth’ but it but it also projects to the society that if you indulge into such kinds of crime, you will end up languishing in jail and your freedom will be curtailed which is of a due significance.

Now let me raise a question. “Did the judgment of Nirbhaya tend to have any deterrent effect”?, just because few days after, we get to see another Delhi bus gang rape.

The primary duty of the state is to protect the life of the person and not to take away or deprive them of life.

Article 6 of ICCPR [21](International Covenant for Civil and Political Rights ) safeguard the rigt to life.

Further Article 6(2) of ICCPR also states that the countries that have not abolished the death penalty can only inflict in the cases which are grave and severe. Subsection 5 of the same article propounds that the death penalty shall not be inflicted upon the person below the age of 18 and the same shall be debarred to be inflicted upon the pregnant women.