Some honourable members of the Rajya Sabha had raised a proposal to do away with capital punishment. D. Raja, a CPI leader, even moved a resolution for the abolition of such punishment in India, because in his opinion it has its own basis of formulating laws and it should respect the prevailing sentiment of the people. According to him, it is not a question of technicality or legality but a crucial matter of philosophy and morality. So in his view the time has come to abolish capital punishment from the country.
However, the resolution was rejected by the House by a voice-vote. But some other members advised the Government to consider the issue with necessary care and wisdom. According to them, it should amend the rules relating to death sentence and until then such penalty needs to be stopped. Moreover, some laws which provide for such life-penalty should be changed, because many crimes are committed due to predicament and deprivation. This is why it has been suggested that the issue should be referred to the Law Commission for its meticulous consideration.
But Kiren Rejiju, the Minister of State for Home, emphatically informed the House that the government is not in favour of abolishing the death-sentence in the prevailing circumstances. It means that it would remain in force, because in the present condition we can do away with it at the cost of our own peril.
It is absolutely true that many countries have abolished such punishment for some obvious reasons. They felt that some people may commit heinous crimes like murder but the state cannot kill them by law. It has the serene duty to save the life of every citizen and the time and date of one’s death is to be decided by Providence alone. Moreover, they believe that death-penalty of a person can by no means prevent crime in society because out of a distrust on the legal system, some people feel that they should take the law in their own hands and some offenders fondly think that they might go away with impunity.
But Rijiju countered all arguments of the dissidents by some cogent logic. First, the Constitution has expressly provided various safeguards against the miscarriage of justice regarding death-penalty. We have a three or four-tier legal system and, more often than not, a case comes up to the higher court on appeal. If capital punishment is awarded by a lower court by judicial mistake, it can be corrected by the appeal-court. Moreover, even if such case is not moved to the higher court, the sentence pronounced by the Judge is to be approved by the High Court which can correct the error.
Thirdly, our Supreme Court has made it crystal clear that this judicial power must be exercised in ‘exceptional circumstances’ and as ‘an unavoidable alternative’. In other words, the apex court clearly ruled that such sentence can be pronounced only in the ‘rarest’ case.
Above all, the accused can, under Art. 72 (i), appeal to the President to grant pardons, reprieves, respites or remissions of punishment or to suspend or commute the sentence. Almost similarly, he can under Art. 161, also send an appeal to the Governor to exercise his mercy power. In such case, the President can, if he deems fit, save the life of the offender and the Governor can, in some cases, use his clemency-power.
Such power has been conferred upon the executive for a valid reason. The courts apply the law and they cannot go beyond it. But the President and the Governor can consider several non-judicial factors such as the offender’s socio-economic condition, motive, health, age, sex, psychological stage, background of the crime and circumstantial sequence. So there is sufficient scope for commutation of the death-penalty.
While a pardon absolves the offender from punishment, commutation substitutes one form of punishment to another of a light character. Remission reduces the amount of sentence without changing its nature. Respite means a lesser punishment due to some reason like pregnancy and reprieve implies a stay of the execution of the sentence.
In this matter, the Constitution has granted almost concurrent power to the President and the Governor. So if one of them refuses to respond, the petitioner can approach the other. However, V.D. Mahajan points out the President alone should be vested with such clemency-power, because it is normally a prerogative of the Head of the State which cannot be claimed by others. Of course, this gubernatorial power is not so wide as that of the President, because he can exercise it in case the punishment is inflicted for violating a law relating to the executive power of the state.
But, it has practically widened the range of executive mercy to the accused by keeping two alternatives. Thus, the President’s power does not affect the similar power of the Governor. Of course, there seems to be some inconsistency between Art. 161 and Art. 72(1) (c), because both the President and the Governor have been granted clemency-power. But, according to G.S. Pandey, the two can surely be reconciled. In cases where death-sentence has been awarded, the President alone can leniently deal with it.
Thus, there should be little fear for judicial ‘murder’. Before pronouncing the death-sentence, the courts meticulously consider all sides of the case and, very rarely, do they issue an order to hang the offender. Moreover, such verdict can be modified by the executive Head of the State on humanitarian grounds.
As a stark reality, every civilized society requires some sort of penalty for individual acts of offence. A cold-blooded murder or a gang-rape cannot go with impunity and if one deliberately destroys another’s life, he cannot have the right to live. Moreover, the capital punishment definitely has a deterrent effect – the fear of death often prevents people from committing a heinous crime.
However, it does not in any way imply that the legal system should be based upon the cruel principle of ‘eye for an eye’ or ‘tooth for a tooth.’ It simply means that society must be legally cleansed. When an enemy agent sells a secret document to his master for sabotage or the terrorist takes away innocent lives, no legal system can show him any mercy. Even our Law Commission has suggested that in the case of terrorism and waging war, death-sentence shall be the befitting penalty. In other words, some kind of fear is really needed in order to stem the rot in the polity.
The aim of the law is to protect people from the terror and tyranny of the miscreants. So, when the crime is diabolical, the law should be sufficiently severe in order to punish the offender and prevent its recurrence by other. This is why the death-penalty should remain in force until peace and tranquility are within our reach. We can, at best, codify some crimes which, in effect, would entail death-penalty.
The writer is a Griffith Scholar, Author and Former Reader, New Alipore College.