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There has been a worldwide growing humanistic approach towards the criminals and
punishment . Of late there has been an emerging public opinion in favour of
abolishing the death penalty. But the recent announcement by the Indian
Government , that it is not in favour of abolishing the capital punishment , has
again highlighted the question raised by many human rights activists i.e.
whether it is consistent with human rights and dignity?
The chronological perspective of death penalty in India shows that it was
codified as part of the Indian Penal Code in 1861. This Code provides death
penalty for the offences of Murder ( Section 302 ) ,Waging war against
Government of India ( Section 121 ) , Abetting mutiny actually committed (
Section 132 ) , Fabricating or giving false evidence upon which an innocent
suffers death (Section 194), Dacoity accompanied by murder (Section396).
In 1931, death penalty was challenged seriously for the first time in India ,
when a member of the Bihar Legislative Assembly unsuccessfully sought to
introduce a Bill seeking its abolition , but support for death penalty however
remained strong at that juncture . In the year 1955 , an amendment was brought
about in the Criminal Procedure Code. Section 367 of this Code ( as it was
before amendment) provided the imposition of death sentence for a capital
offence and if lesser sentence was to be imposed , the Court was required to
record reasons in writing. The Amendment Act 26 of 1955 omitted this provision
and the Courts had no longer to explain why the death sentence was not imposed
in a case.
1962 saw the moving of a resolution in the Lok Sabha for abolition of death
penalty . The Government referred the matter to the Indian Law Commission. The
Commission said that having regard to the social conditions and diversity of
population , India can not risk the experiment of abolition . However it
recommended that children below 18 year of age should not be sentenced to death
. A provision to this effect has been inserted in the Indian Penal Code
(Amendment) Bill , 1972 . Later in 1973 , it was provided that while handing
down a death sentence , special reasons must be given by Court. Thus now life
imprisonment was made a rule and capital punishment an exception to be resorted
to only for special reasons.
The year 1980 witnessed the landmark judgment in the case of Bachan Singh Versus
State of Punjab , wherein a Constitutional Bench concluded by a four to one vote
, that death penalty was not violative of Articles 14, 19 and 21 of the Indian
Constitution . However the apex Court warned the judges not to be bloodthirsty
and it was ruled that death penalty should not be imposed save in the " RAREST
OF RARE CASES ". In 1994 , the Supreme Court confirmed the death sentence in
Dhanunjoy's case and declared that when the Courts award sentences , then they
must not only keep the rights of the accused in mind but also the rights of the
victims and those of the society at large .
Hence the above flashback over the decades , shows that this cacophony
of differing judicial views is bound to continue so long as the death penalty
remains in the statute books . However since the pronouncement of the 1980
judgment, the " RAREST OF RARE DOCTRINE " has been widely applied in a number of
cases.
Philosophically , the abolitionists find support in the reformist theory of
punishment . They believe in the sacredness of life and for them death penalty
is an abomination for a criminal who needs treatment rather than punishment .
But on the other hand the anti-abolitionists believe in the retributionist
theory of punishment and say that punishment is a reward earned by the culprit
for committing an evil act and so it is the demand of justice to inflict capital
sentence for heinous crimes like murder and dacoity .
If statistics are to be relied upon , then by November 2003 , 76 countries had
done away with capital sentence and the countries which had abolished it , have
not witnessed any dramatic rise in the crime rate forcing them to re-introduce
it . But on the other hand there are at present about 80 nations which retain
death penalty. China , Congo , USA , Iran , Pakistan and Saudi Arabia are the
most prolific executioners of the world. Indeed a model country like USA , is
one of the six countries which even executes people who are under 18 years of
age at the time of commission of the offence . The Second Optional Protocol to
the International Covenant on Civil and Political Rights (which forms a part of
the Universal Declaration on Human Rights ) which came into force in 1991 ,
mandates the abolition of capital punishment. India has unfortunately not
signed it , thus placing itself in the doubtful company of the United States .
In nutshell , the international opinion is divided over the question of
abolition of capital punishment . In case of India there seems to have been a
conscious attempt by the judiciary to strike a workable balance between the
notions of deterrence , justice and reformation . The concept of " RAREST OF
RARE " is a unique innovation of Indian judiciary to restrict the use of death
penalty . But new legislations like providing death penalty for spurious drug
manufacturers has revived the debate that does severe punishment check the crime
rate in society ?
Infact it is not the severity of penalty but its certainity that checks the
crime rate . So what is actually required is to strengthen the entire justice
delivery system along with other steps like enhancing the efficiency and
transparency of the law and order machinery , fortifying strong diplomatic ties
for purposes of extradition etc..Only then India can think of going on to the
historic step of abolishing capital punishment .
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