Is capital punishment a panacea for all the crimes? Is capital punishment a miscarriage of justice? Is capital punishment justice or revenge? Is capital punishment a crime against criminal? Does capital punishment actually deter crime?
Nowdays, capital punishment is a burning issue in the social media and amongst netizens. And they are continually demanding that in every heinous crime, the accused should be hanged till death. They do not know anything about the criminal justice system, welfare state, civilised values and human rights. They are still living in the Dark Age and believe in the retributive system of justice, which is not justice but a management to control the anger of the uneducated society. They believe in an eye for an eye and have forgotten that if this principle is followed, one day whole world will become blind as Gandhiji said. They are the true disciple of Lombroso and Garfallo, who considered it as a weapon to fight a moral war against incorrigible immoralists. Rang de Basanti
They do not believe that life is a gift of God and only God should take it away. The death penalty is irreversible and human judgment is fallible. Infallibility is not a human trait — it is divine. Capital punishment is inhuman, unjust and nullifies the purpose of reformation, rehabilitation and reintegration of the criminal, which is the utmost purpose of law. Its deterrent effect also proves unproven. Vengeance can never be the purpose of law and cannot be accepted in a civilised society.
Significantly, in Bachan Singh v State of Punjab (AIR1980 SC 898), the Supreme Court laid down the principle of “Rarest of Rare cases”. And in Machi Singh and others v State of Punjab (AIR 1983 SC 957), the court crystallised the above principle.
However, it noted with dismay that the reality is that in later decisions neither the rarest of rare doctrine nor Machi Singh principle was followed universally or consistently. Later, the Supreme court changed its approach regarding the capital punishment and applied the principle of LWOP (Life Imprisonment Without Parole) of the United States in the Swamy Shardhanand v State of Karnataka [22 July, 2008] and named it — Life imprisonment till the end of life. It understood the spirit of law and set aside the letters of section 433A of the Criminal Procedure Code, which stipulates “that Appropriate Government has the discretion to commute a sentence of imprisonment for life, once the convicted has served at least 14 years of imprisonment.”
This way, the court gave a substitute of capital punishment, i.e., life imprisonment till the end of life. But looking at it from a different point of view, which is supported by some penologists who consider it as a living death, where a person dies a little every day. But still it is better than to become blood-thirsty.
The cruellest form of punishment is neither capital punishment nor solitary confinement but waiting for capital punishment, known as the ‘Death Row Phenomenon’. The prolonged delay in executing a sentence compelled a convict to pray, in the words of Faiz, “How much longer will my patience be tested? I have suffered a lot already, I swear by you. My boast of endurance and patience was nothing but a boast, I am yearning for some peace, Pray do come now.”
“Every saint has a past and every sinner has a future,” would be a catch phrase in the criminal justice system. By accepting this principle, we will be capable of deriving their best which may serve society at large. So capital punishment will remain a stigma on the face of civilisation till the person understands the value of life.
We can quote Bernard Shaw from Act IV of his play Caeser and Cleopatra: “and so to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the Gods are tired of blood and create a race that can understand.”
(Vineet Jakhar is a final year L.L.b. student, Dept. of Laws, Panjab University, Chandigarh.