Death Sentence as Effective Deterrent

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The constitutional validity of Sec. 302 Indian Penal Code 1860 was questioned before the Supreme Court in Jagmohan Singh v. State of U. P., AIR 1973 SC 947 : 1973 Cri LJ 370 on the ground that imposition of capital punishment of death sentence is violative of Article 14 of the Constitution of India and that the said provision suffers from the vice of excessive delegation, as the legislature has abdicated its essential standards in what cases the Judge should pass death sentence.  The Constitution Bench of the Supreme Court comprising of five learned Judges, negatived the contentions raised in the case and the judgment was rendered by Justice Palekar, upholding the validity of Sec. 302. It was held that death sentence acts not only as a deterrence but as a token of the emphatic disapproval of the crime by the society, where the murder is diabolical in conception and cruel in execution and that such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Expediency of transplanting Western experience in our country was rejected, as social conditions and so also the general intellectual levels are different. The Court referred to the 25th Report of the Law Commission of India, in which it was stated that India cannot risk the experiment of abolition of capital punishment. Reference was also made to the rejection of the Bill in the Lok Sabha for abolition of capital punishment, which goes to show that the representatives of the people do not welcome the prospect of abolishing capital punishment. It was, therefore, rightly held that imposition of capital sentence cannot be held to be unconstitutional.  The fact that the possibility of en error being committed in the matter of sentence can be corrected by appeals and revisions to higher Courts was relied upon and it was held that only the Judges shall decide the question of imposition of sentence. It was also observed that any exhaustive enumeration of aggravating or mitigating circumstances is impossible and that it is also impossible to lay down standards which would go against the very core of the criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. It was observed that the exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguards for the accused. It was noticed that facts and circumstances of one case can hardly be the same as the facts and circumstances of another.  The contention based on Article 14 was rejected, holding that judicial decision must by necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law, may not necessarily amount to a denial of equal protection, unless there is shown to be present in it an element of intentional and purposeful discrimination. The discretion of judicial officers is not arbitrary and the law provides for revision by superior Courts and hence, there is hardly any ground for apprehending any capricious discrimination by judicial Tribunals.  The vires of Sections 53 and 302 IPC and Sections 235(2) and 354(3), Cr. P. C. 1974 was again challenged before the Supreme Court as violative of Articles 14, 19 and 21 of the Constitution, in Bachan Singh v. State of Punjab cases in AIR 1980 SC 898 : 1980 Cri LJ 636. By a majority of four Judges, the Constitution Bench upheld the validity of the provisions relating to death sentence, while Bhagwati J. (minority) struck down Sec. 302 as unconstitutional and void, insofar as it provides for imposition of death penalty. The majority view was that Art. 19 of the Constitution is not applicable, as no one can claim a right to commit murders and it cannot be reasonably or rationally be contended that any of the rights mentioned in Art. 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. The contention that the provisions relating to death sentence are violative of Art. 14 was also rejected, observing that 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. The contention that death sentence is violative of Art. 21 was also negatived, as the procedure established by law is fair and reasonable. In sum, all the contentions raised by the petitioners before the Court for striking down the provisions relating to death sentence were rejected. Having done so, the Supreme Court ought to have left the sentencing aspect to the discretion of Courts in individual cases, rather than laying down guidelines and principles and stating that death sentence should not be imposed except in the Rarest of rare cases, which has resulted in imposing serious fetters on the discretion of the Courts trying individual cases and the High Courts and Supreme Court in appeals.  Sec. 302 IPC was once again challenged under Art. 32 of the Constitution of India before the Supreme Court as violative of Art. 21. It was contended that capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect. It was also argued that the penalty of death sentence has a de-humanising effect on the close relations of the victims and it deprives them of their Fundamental Rights under Art. 21 to a meaningful life and that execution by hanging is barbaric and dehumanising.  The Constitution Bench of the Supreme Court rejected the contentions raised before them that death sentence is violative of Art. 21, relying on the decisions in Bachan Singh and Jagmohan Singh and the 35th report of the Law Commission in which it was observed that India cannot risk the experiment of abolition of capital punishment, as the paramount need is for maintaining law and order in the country. The Supreme Court observed that death penalty has a deterrent effect and it does serve a social purpose and that the law relating to death sentence need not be re-considered. The argument of the abolitionists that death penalty is barbaric and has a de-humanising effect was rejected as it over-looks the fact that murder itself is barbaric and this heinous act of a de-humanised person does not at all deserve any sympathy. The primary duty of the society is to protect innocence and law abiding citizens rather than take the spacious plea on behalf of persons who are not civilised and human.  Unfortunatley, though the provision relating to death sentence has been repeatedly upheld by the Constitution Benches of the Supreme Court mentioned above, in practice, the observations of the Supreme Court in Bachan Singh’s case has come as a stumbling block in the Courts exercising their discretion, even in very serious pre-meditated and horrifying cases, even resulting in several deaths, relying on the words “Rarest of rare cases” in Bachan Singh. Several culprits who have committed murder and deserve to be hanged, have, basing on the observation of the Supreme Court, escaped death sentence and are enjoying as guests of the society for long years in jail, as if they are being rewarded for doing something which is for the benefit of the society.  To give a few examples, we may refer to some of the cases dealt with by the Courts. One Teja Singh who had intentionally run down his father’s rival with his tractor and reversed the tractor to come back and shot and killed with his gun, was not given death sentence, holding that this is not one of the Rarest of rare cases meriting death sentence, in Teja Singh v. Mukhtiar Singh, AIR 1995 SC 2411 : 1995 Cri LJ 4159.  In Raja Ram Yadav and others v. State of Bihar, AIR 1996 SC 1613 : 1996 Cri LJ 2307 the Supreme Court did not impose death sentence, holding that it is not the Rarest of rare cases, though it was clearly held that the murders of 26 persons have been committed in a pre-meditated and calculated manner with extreme cruelty and brutality, though the victims were innocent and did no harm to the culprits, which cannot but send a shock-wave to the entire society in a gruesome manner.  Persons who had killed four people by setting them ablaze were not given death sentence, though the Supreme Court observed that the murders are gruesome, in Manohar Lal alias Munna v. State (NCT of Delhi) AIR 2000 SC 420 : 2000 Cri LJ 581 holding that it is not the Rarest of rare cases. The accused in Kishori v. State (NCT of Delhi) AIR 2000 SC 562 : 2000 Cri LJ 756 who killed three persons in a brutal and merciless manner in which the three young persons were dragged out of their house and hacked to death in the presence of their family members were not given death sentence, based on the Rarest of rare cases theory.  A classic case in which the Rarest of rare case theory propounded in Bachan Singh has been applied in letting off a most gruesome murder is reported in State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1691 : 2000 Cri LJ 2301. A girl aged 11 years was gruesomely murdered, motivated by greed for gold. While the Court observed that the act committed by the accused was horrendous and can doubtlessly be said that this is an extremely rare case, holding that it is not one of the Rarest of rare cases, on the ground that the Act was done due to utter ignorance of the accused owing to superstitious belief.  A 35 year old Deputy Commissioner of Police and other Police Officers were chased and caught and were beheaded by the culprits, but the Court, relying on Bachan Singh did not impose death sentence on the murderers, as it did not fall within the category of Rarest of rare cases, though the Court observed that the assailants were blood thirsty and mutilated their corpses, stripped them off, threatened them and tried to incinerate the dead bodies.  The death sentence imposed by the Sessions Court and confirmed by the High Court in appeal against the accused in Raju v. State of Haryana in AIR 2001 SC 2043 : 2001 Cri LJ 2580 for rape and murder of an 11 year old child, was converted to life imprisonment, as the case is not one of the Rarest of rare cases.  In the various cases referred to above and a numerous other cases, death sentence was not imposed, only due to the fetters imposed by the Supreme Court in Bachan Singh, though the murders in those cases forfeited right to live, after committing heinous crimes.  A strong protagonist for abolition of death sentence is Justice Krishna Iyer. He was firmly of the view that death sentence should not be imposed except in cases where security of the State and society, public order and the interests of general public compels the imposition of such a sentence. He was of the view that Art. 19(2) to (6) of the Constitution is attracted and militates against the imposition of death sentence, except in the cases mentioned earlier. This view was propounded in Rajendra Prasad v. State of U.P. in AIR 1979 SC 916 : 1979 Cri LJ 792. The Constitution Bench in Bachan Singh referred to earlier, did not agree with this view and held that Art. 19 is not attracted, as there is no right in any person to commit murder, or to commit any crime for that matter. Krishna Iyer, J. was of the view that only imprisonment for life can be imposed in murder cases, unless security of State etc. are threatened and the murderer could be given the opportunity to reform himself by incarceration. He did not believe in the deterrent effect that death sentence has on potential murderers. He totally rejected the retributive nature of death sentence. It is interesting that the learned Judge has noticed that imprisonment for life in jail did not reform a person convicted for murder, who after release, committed a second murder. He also noticed the fact that the jails are over-flooded and are hardly the places for reforming the prisoners. He further realised that it is not possible to provide necessary atmosphere in jails conducive for the reformation of the prisoners due to the various factors, including over-flooding of the prisons.  Reformation of a hardened criminal like a person who commits deliberate murder after pre-meditation may be a good idea, but the possibility of his not being reformed after undergoing the sentence should be taken into account. It is common knowledge that death sentence serves as a deterrent and will act as a deterrent for prospective murderers, excepting in cases where the murder is committed on the spur of the moment. Planned murders, murders for a piece as in the case of professional criminals, dacoity accompanied by murder, murders of several persons, causing death of victims of rape etc. are some of the examples in which death sentence would certainly act as a deterrent. When there is an application of mind while committing the crime, there is every possibility of the mind warning the prospective criminal of the consequences of the crime. In the realm of considering possibilities and probabilities, it is safer to err on the right side in favour of the society, rather than on the wrong side in favour of the individual whose hands are bloodied by the blood of the victim. Urge for retribution against horrible crimes such as murder, cannot be wished away. In Indian society, there are galore of cases where the victim’s families or the communities in general, have taken law into their own hands, by killing the criminal and thereby, feeling that they have done justice, which the law has failed to do. It is, therefore, necessary that this aspect of the urge of the victims for retribution should be kept in mind and cannot be ignored by way of mere intellectual exercise and by ignoring the nature and feelings of common man.  Some murders may be of purely private significance and the injury or harm resulting therefrom affects only specific individuals and no rational being can say that imposition of death sentence on such murderers is in the general public interest. The Law Commission of India in its report, and the judgment of the Supreme Court in Jagmohan Singh and in several subsequent cases, recognised that death penalty serves as a deterrent. Having regard to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country, India cannot risk the experiment of abolition of capital punishment, which virtually, is the effect of the judgment in Bachan Singh.  A large segment of the population, including notable penologists, judges, jurists, legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent and a greater deterrent than life imprisonment. Courts must administer shock therapy to deter certain crimes, as threat of death to the offender may still be a promising strategy in some frightful areas of murderous crime. Horrendous features of the crime and the hapless and helpless state of the victim should steel the heart of law for the sterner sentence. Death penalty serves as a deterrent as well as retributive. Only penalty of death will provide maximum deterrence. No other punishment deters men so effectually from committing crimes, as the punishment of death. Death is death, its terrors cannot be described more forcibly. Capital punishment is a uniquely powerful means of protecting the community. Courts must reflect a public abhorrence of crimes, and justice demands that some attempt be made to impose punishment fitting to the crime. Prima facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, though it is difficult to unravel the innermost recesses of the minds of potential murderers. Even retribution in the sense of society’s reprobation for the worst of crimes, i.e., murder, is not an altogether outmoded concept. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not. Retribution is still a socially acceptable function of punishment. The instinct for retribution is part of the nature of man. Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. The fact remains, however, that whenever there is a serious crime, the society feels a sense of disapprobation.  Murders for gain, contract killings, abduction or kidnapping followed by murder, rape coupled with murder, gang rapes, rape resulting in the victim committing suicide etc. have become common occurrences, which may not be treated as “Rarest of Rare Cases” and the perpetrators of such heinous crimes escape death sentence and enjoy the hospitality of the State. The Parliament ought to have stepped in and enacted corrective legislation to plug the loop hole in law, which is the result of the judgment in Bachan Singh’s case. It is unfortunate that nothing was done by the Legislative Body, resulting in the increase of deliberate murders and heinous crimes which is a daily occurrence, shocking the conscience of the society. It is very necessary that Parliament should address itself to the situation and make a legislation by removing the fetters imposed by the “Rarest of Rare Cases” theory, which has no legislative sanction.  It is commendable that the Law Commission of India in its recent Report had proposed a humane mode for execution of death sentence by giving three choices to the condemned prisoner.  The Report of the Justice Mallimath Commission had made commendable suggestions for making the criminal law more effective, by taking into consideration the modern trend of crimes. However, the recommendation relating to rape requires careful consideration, as the Report of the Commission had not focussed its attention on the fetters imposed by the “Rarest of Rare Cases” theory, in the cases where the rape resulted in the death of victim and the other situations enumerated above.  It is essential for the Parliament to consider the imperative need to set at naught the “Rarest of Rare Cases” theory, having regard to the urgency in tackling horrible crimes. In the battle between the criminal law enforcing authorities and the criminal, the criminal has the upper hand and the law enforcer is at a loss in combating modern crimes with the outmoded and ineffective tools in hand. Hence the need to make the law more stringent and effective tool as a deterrent.

Author Name: Hon'ble Justice J. Eswara Prasad