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Capital Punishment Still A Requirement In India

India is a developing country but India is lagging behind to preserve justice. There is lacuna in our criminal justice system, as so many cases are still pending without trial. Our parliament makes laws to curtail the crime in our society or to reduce the crime rate. Punishment simply means when a person breaches the law and has to be punished for wrongdoing. All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing.

There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. Capital punishment is the most serve form of punishment.

Capital punishment is always considered as one of the tortures punishment. This article mentioned three theories namely, reformative theory and preventive theory. This article has detailed view about the capital punishment in India and also the methods of execution in India.

Introduction
Capital punishment is the legal killing of a person who has committed a serious crime. Capital punishment means state take life of the individual, state using authority and power to snatch the live and liberty of individual who has committed a grave offence. Death penalty is mentioned 13 places in Indian Penal Code. The constitution of India provide under article 21 that no one can curtail life and liberty of any individuals except the procedure established by the law[i]. A person can be deprived his life even under capital punishment only if the is law which is just, fair and reasonable.

Supreme court rule that the article 21 does not get violates because of death sentences[ii], there is exist a proper procedure and that procedure is fair and non- discriminatory because of this procedure state have power to snatch the life of individuals therefore capital punishment are constitutional [iii] is this country. Supreme Court gives a landmark judgment in case of Bachan Singh vs. State of Punjab [iv] that death punishment is given in the rarest of the rarest[v] cases.

In Machhi Singh vs. state of Punjab [vi] SC rule death penalty should be given only when the option of awarding the sentence of life imprisonment is "unquestionably foreclosed". Supreme court held two test need to be performed to determine the rarest of the rarest doctrine test no. one- is there something uncommon about the crime that if we give life imprisonment to the offender would leads to miscarriage the law and justice and test number two is the circumstances in the crime which render the life imprisonment as inadequate even after the judges maximum weight age to the mitigating circumstances which speak in favors of accused.

The crime was committed in the horrific manner if the life imprisonment was awarded to the accused it should be travesty to the justice. Judge will have to draw a balance sheet between aggravating circumstances and mitigating circumstances. The 262nd report of the Law Commission titled The Death Penalty[vii] which had recommended abolishing the death penalty in the country.

In February 2013 Justice radhakrishna pronounced a judgment and mention that the judge have no discretionary power in matter to the rarest of rare cases but depends upon society abhorrence for certain crime. By hanging some individuals the state reinforces a belief that bad things happen to bad people and good things happen to good people. A guilty people deserve to be punished in proportion to the severity of their crime.

For deterrence we need to capital punishment but we all are aware of the one rule of life- what does dead can never be alive again. Only nature has the right to take and give life, if someone is awarded life capital punishment, and then there is a violation of his natural right. The aim of penal system to punish accused to reform the accused person, if judiciary gives death sentence then the question arises how he will improve?

Through the reformation process the judiciary is trying to reform the person which mean to change the criminal character of a person so the in the future the person should not commit any offence. There is no sufficient proof to show that death penalty operate as a greater deterrence than the life imprisonment that means it is not possible to prove that death penalty greater deterrence than life imprisonment or death penalty can discourse more that what life imprisonment can do.

In a subsequent occasion the judgment which was passed is a mistaken conclusion in that case death penalty is irretrievable the person is no more than the judiciary cannot ratify its mistake because death sentence is irreversible. There are three theories of punishment Retributive, Deterrent and Reformative. When the punishment is governed by feeling of revenge eye for eye it's called distributive form of punishment.

Deterrence means to deter someone from committing a certain act, so it is believed that if capital punishment is given it will have deterrence effect on other it will reduce the future crime. Reformation theory we often use with Gandhi's theory, virtue is knowledge. Socrates said that if people have the true knowledge, knowledge of ethnic, knowledge of what is right or wrong they will not commit error.

Plato was the first western philosopher who attempted a systematic study of society held that the state's most important function is pedagogic. No one commits crime knowingly; people commit crime due to ignorance. Even those person who think that they are doing right thing by committing the crime for example who think that they are doing the right thing in the interest or to impress the god and commit the terrorist act even such person are ignorant they do not know true knowledge that committing the crime is not satisfied their soul and they are under the illusion or they are being brainwashed.

If a person has true knowledge that this particular act is wrong then that person will never commit crime, so somewhere the people commit the heinous crime it is not just the fault of that particular person it is fault of society, as well as state that not able to educate people about the right and wrong conduct. Capital punishment is always considered as one of the tortures punishment. In context to India, India is still having the system of capital punishment.

However unlike many other countries around us like china, Iran, Pakistan etc, the number of capital punishment in India is quite less. Justice P.N. Bhagwati said that death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived. The reasons include lack of adequate legal assistance to the marginalized.

As per judicial doctrine capital punishment only given in the rarest of the rare cases[viii]. People they abhor that retribution should not basic of any punishment some people believe that deterrence has no empirical basic that people are really deter by the capital punishment and some people are believe in reformative approach. We cannot completely ignore retributive punishment because retributive basic means revenge.

Revenge is to be seen also from the perspective of the family of the bereaved and nothing can feel the vacuum when the members of the family lose their life because of failure of law and order. We are all living being and revenge is very natural sentiment there is something to compensate the loss to the family of bereaved. We cannot ignore the perspective of the family who has lost their dear ones.

Conclusion
In India still is we lack the robust criminal justice system, India has not yet implemented the police reforms recommended by the Supreme Court. there is a possibility that the innocent persons may wrongly convicted now because of our criminal justice system is yet not robust and so if innocent person is given capital punishment it will tend to amount to be the murder by the state which is not acceptable in any modern society.

We need the institution robustness of our criminal judicial system it is essential that we should replace the capital punishment with life imprisonment. The state should think about the continuation because life is one such thing which cannot be given back hence considering the state of criminal justice system. in India it is much better if we shift capital punishment into the life imprisonment fine so life imprisonment gives an opportunity that in future if somebody is found innocent we can correct our mistake and as well as we are also giving an opportunity of reforming as Gandhi said hate the sin and not the sinner and even life imprisonment can also heal the element of revenge or can also serve this revenge element of punishment it serves the reformative element and directly or indirectly it can also serve the deterrence angle and it saves India's estate from committing any such crime and it enhances or it will upgrade India's stature in the community of the nations and it will strengthen India's the candidature even for the permanent seat of U.N security council so imprisonment is going to be a win-win situation, it will take into account the current realities and it also provides the benefits and addresses the concerns of the various stakeholders in the system. Judiciary in India continues the capital punishment as deterrence.

However there is no logic between reduction in the crime and deterrence, up till now there is no empirical basis to support the deterrence theory. In India to deter the person with respective to capital punishment was not fully sound because of Supreme Court of India also given the doctrine of capital punishment only in rarest of the rare case.

If a criminal know that capital punishment is rarest of the rare it will hardly act as deterrence. Reformation of the soul should be the aim undoubtedly because somewhere a person commits a crime it is not just that person committing a crime but man is not abstract individual man lives in a society and somewhere the social cultural environment also is responsible.

End-Notes:
  1. Articles 21 of the Constitution.
  2. Triveniben vs. State of Gujarat, A.I.R. 1989 S.C 142
  3. Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.
  4. Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898
  5. https://www.juscorpus.com/doctrine-of-rarest-of-rare-cases-is-it-truly-rare/
  6. Death Sentence: A Critical Analysis. http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
  7. https://lawcommissionofindia.nic.in/reports/Report262.pdf
  8. http://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1458.

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