The LAW Learners
Death Penalty : A Need Of The Present Society
Daksh Khandal, Student, S.S. Jain Subodh Law College
Death penalty should be abolished or not is one of the major debatable issue in the country. Many people are in favour of of giving death penalty and others are against it. Death penalty in simple sense means penalizing someone that is giving punishment of the wrong that he has committed by taking away his life by well-established procedure. It is sometimes also referred as capital punishment or death sentence. Different countries follow different ways of of giving death sentence. In India it is given by hanging the person till death. We have seen the cases where court have given the death sentence and some of the famous cases were Indira Gandhi assassination, Kasab case, Nirbhaya case and some other as well. Here we are not talking about taking life of people murdering them but we are talking about murderers. We are not taking into consideration the old philosophy of tooth for a tooth, eye for eye, life for life, not about taking revenge but providing the punishment that is needed so that crime should be stop and justice to be made to the victim.
There is a deterrent theory behind death penalty that it can prevent other people who are having same mindset of committing the same crime for which the accused has got death sentence. Salmond once said it is better that snake is out of the world than in it. He is referring to snakes in form of humans he is focusing on, tendency not to the person, poison not to the bite, consequences not to the act.
Need of the death penalty
Some of the people say that death penalty did not serve a purpose of detrent theory they remark it by saying that after nirbhaya case death sentence execution and in various other cases crime has not stopped but risen. Though indeed it has been raised but if a punishment is not crubing out the crime it does not mean that the punishment is invalid or has to been abolished rather it is to be understood that we not have to liberalise the punishment but has to make it more stronger and effective. Abolishing death sentence on this idea that it does not fulfill the purpose is vague as abolishing death sentence would not make crime getting down but will help in getting a great hike in the number because people will feel more liberal to commit as law has been weaken punishment has been weaken. In present scenario we don't have to weaken the law but to make it more stronger ensuring proper justice to the victim and society that is the need of the hour. And our penal code is not for deterent purpose but it is for serving justice.
Now some to defend the abolition of death sentence also rely upon the principle of Mahatma Gandhi that is "If someone slaps you on one cheek, turn to them the other also rather than slapping him back. But we have to understand it was generalised statement and time has changed, number of crimes has changed, criminals and their brutality of committing the crime has changed." Its now not the about slap its rape." And death sentence is not given in general but is given in rarest of the rare cases. Criminals have to be punished, monsters have to be hanged.
Other point that is being stated is we don't have a right to take anyone's life. They argue on Article 21 providing right to life to all. There is need to understand that a individual is not taking life of other but its the society and why just to ensure justice. We all took stand that what about the right of accused and what not, but it is important to look at other side where the victim has also lost the life and the pain victim has suffered (reference of nirbhaya case can be taken) family of victim has suffered what about their rights. It is not the revenge but ensure justice and providing proper punishment to the accused.
Some argue that reformative theory be used. Accused can be reformed and rehabilitate. We are here talking about criminals, person who has committed the crime with a great brutality and in many cases it is seen after committing the crime the criminal is not having any remorse of his act. And sometimes they try to defend their acts by saying this has to been done with victim. Rapist are seen saying women wanted to be raped that's why that happened. There are number of cases where it is seen that person murdering a number of people and not even having remorse or regret for his act. Such people are a threat to the public and social order. While deciding the punishment not only brutality but also possibility of reformation of the accused is also taken into consideration. We are urging to reform people with this mentality who are defending their act and no regret at all. They do not have the right to be given a another chance and if so is done the person with such a mentality will be more harmful to society.
Another point being raised is no proper sentence given or sentence is given to poor without proper representation. So this will be dealt further that how law grants proper representation to all. And as far as issue of poor be hanged no help given to them so it should be taken into consideration that there are a number of lawyers taking cases of accused free of cost for good of the society and also legal aid as provided a fundamental right under Article 21 of the Constitution of India, so there are different legal aid committee working for free to provide proper representation of the people who can not afford the expenses of litigation and thus ensuring justice and proper representation to all irrespective of their economic status.
It is must needed that the past should be controlled to have a good future. And Mercy is to be provided only who are deserving. The act of giving death sentence if often termed as brutal, undemocratic, not suitable for progressive and developing society. But it should be taken into consideration that justice is not only for the accused but it is for victim as well.
In the case of Bacchan Singh vs State of Punjab Supreme Court provides guidelines regarding death penalty which were again now upheld in Nirbhaya Case. It provides that the death sentence be given in rare of the rarest cases.
Provisions of law relating to death sentence
Section 354(3) of Criminal Procedure Code provides that the judge providing the the death sentence has to record the special reasons for the same without doing that punishment cannot be given. So it is not a routine activity it is is given after clearly looking at the case and the circumstances.
A death penalty can only be awarded by Session Court or Additional session court judge
Section 235 (2) of Criminal Procedure Code impose duty on on the court to hear the accused on the the sentence. Court must hear regarding age of the accused, background of the accused that is his living. Court will also see whether there is any prior criminal record against him or is there any possibility of reformation of the person. All all these points defence can state their arguments supporting with evidence and all hearing all court will take the decision. So a fair opportunity being heard is provided to accused before giving punishment. And if court does not does it then it will be an error by the court.
Section 366 of Criminal Procedure Code provides that all the proceedings of the trial court has to be submitted by trial court to the High Court whether accused has made appeal or not. And after that when High Court confirmed it then only it can be executed. Accused may move to Supreme Court for further appeal of the decision and Supreme Court may or may not grant the relief.
As per Article 72 of the Constitution of India the person can also move to President for mercy and President by using his own diligence or taking suggestions from officers in Central government take the decision as he deemed fit.
There is a lot of provisions that provide different levels remedy can be sought and a decisions of death sentence has to move to different doors before final execution. So in this a lot of person having judicial brains and powers invested in them are being used to provide a proper trial and punishment.
From the above we can justify that how important death sentence is for the society. This is always a debatable issue and a lot more abolition of it is demanded but that is not the right path to move on it will harm the public moral and social order of the society and will lead drastic impact on it with raising more of crimes and making society a hell to live in where everywhere there is crime and lack of safety, security of life in the society. People have their different views and perspective of looking it but it is need of the country as crime especially crime against women raising day by day and there is a need to have steps in controlling it and no such acts be done that liberalise people and make them free to commit crimes. So it is must needed in the present society.