Nor does the ancient Indian civilization know of abolition of death sentence although its disuse at some point of time in history has been effected because “the people were most truthful, soft-hearted and benevolent and to them vocal remonstrance sufficed. But in the event of failure of these measures, corporal punishment and death sentence were invoked to protect the society from violent criminals.”
Penologists in India have reacted to capital punishment differently. Some of them have supported the retention of this sentence while others have advocated its abolition on humanitarian grounds. The retentionists support capital punishment on the ground that it has a great deterrent value and commands obedience for law in general public.
Those who support capital punishment feel that death of the killer is a requirement of justice. They believe that death of victim must be balanced by the death of the guilty party, otherwise, the victim will not be avenged and the anguish and passions aroused by the crime in society will not be allayed.
The abolitionists, on the other hand, argue that enormous increase in homicide crime-rate reflects upon the futility of death sentence. Another argument generally put forth by abolitionists is that hardened criminals commit most cold-blooded murders in a masterly manner. They proceed with their criminal activity in such a way that even if they are caught, they are sure to escape punishment due to one or the other procedural flaw in the existing criminal law.
Reacting sharply against the abolitionists view, the Law Commission of India in its thirty-fifth Report observed:
“Having regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the disparity of the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the abolition of capital punishment. Arguments, which would be valid in respect of one area of the world may not hold good in respect of another area in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved the Commission is of the opinion that capital punishment should be retained in the present state of the country.”
Supporting the aforesaid view of the Law Commission, the Supreme Court in Bachan Singh v. State of Punjab, inter alia observed:
“Notwithstanding the views of the abolitionist to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, Judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society. The Parliament has repeatedly in last three decades, rejected all attempts to abolish death penalty. Death penalty is still recognised as legal sanction for murder or some types of murder in most of the civilised countries in the world It is not possible to hold that the provision of death penalty as an alternative punishment for murder in Section 302 of IPC is unreasonable and not in public interest.”
Statistics on homicide in various countries suggest that the incidence of this crime has not fallen despite increased risk of execution. This in other words, means that the deterrent effect of capital punishment is vanishing in modern times. It has been vehemently argued that deterrence doesn’t work against the majority of offences which are crimes of passion.
The foregoing analysis clearly indicates that neither retention nor abolition of death sentence can be justified in absolute terms. The desirability of this punishment, by and large, depends on the nature of the crime and the circumstances associated therewith. The following generalisations may, however, serve a useful purpose in deciding the desirability of capital punishment.
1. The retention of death penalty seems desirable in cases of hardened murderers who are incorrigibles and commit cold blooded murders in a calculated manner.
2. Particularly, in agricultural countries like India, the real problem of death penalty arises in case of murders committed during agrarian riots and disputes relating to possession or ownership of land-property. In such cases, the offenders are well aware of the consequences of their act but they fall a prey to criminality due to passion, excitement or anger for the victim whom they want to put out of their way once for all.
Thus these persons, though aware of the consequences, in fact do not intend those consequences to follow, hence they cannot be categorised as professional killers and death penalty can hardly serve any useful purpose in such cases.
3. Experience has shown that quite a large number of murders and homicides which occur in this country are due to permeance of racial, ethnical, and religio-political cultures. The offender often falls a prey to his surroundings and in a fit of passion commits homicide without thinking about its gravity and consequences. Such cases are more common in the Indian society where sex taboos are too strict and the marital relationships are likely to be disturbed on slightest suspicion or provocation.
4. Dr. Sethna carried out an intensive study of cases tried at the Criminal Sessions of the Bombay High Court and concluded that out of 507 cases of homicides only 26.28 per cent were premiditated murders while remaining 73.72 per cent were cases of unpremeditated murder. Thus most of the homicides are due to ill-will, emotion, irresistible temper or manic excitement and capital punishment serves no deterrent purpose in such cases.
5. The reason generally advanced for retaining the death penalty is protection of society. It means that the criminal is exterminated and got rid of once for all. But it must be remembered that it is not by the fear of death but by generating in the community a sentiment of horror against killing, that we can hope to deter offenders from committing that act.
The above generalisations suggest that classification of different types of homicides can be made on the basis of social environment and personality of the offender. Therefore, the efficacy of death penalty in such cases should be judged in the light of the surrounding conditions.
Considered from this standpoint, the habitual offenders and sex psychopaths are abnormal persons who develop a kind of menia for their crime without bothering about its gravity or evil effects. There is yet another category of criminals who take pleasure in killing human life without any apparent reason.
They commit murder one after another only for the sake of fun. When interrogated, these men-killers have boldly confessed that they commit homicides because they derive some kind of pleasure in watching their victim dying in pain and torture. Needless to say that death sentence is perhaps the only appropriate punishment for such beastly offenders.