Imposition of death penalty: Time for second look
INTRODUCTION: Sir Henry Maine, the English legal historian, observed that punishment evolved from social necessity .'Special reasons' necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal, e.g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills and relishes is beyond rehabilitation within a reasonable period according to current psycho-therapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances.
COMPARATIVE VIEW: Cases in which the death penalty was retained were those where, in the view of the Government, murder was most dangerous to the preservation of law and order, and where the death penalty was likely to be a particularly effective deterrent. The death penalty for murder was thereafter temporarily abolished for a period of five years, as an experimental measure by the Murder (Abolition of Death Penalty) Act 1965. Due to an increase in the incidence of criminal behaviour, and steady rise in the volume of reported crime, there is a genuine public concern in Britain for re-assessment of the penal policy of the Government. In India death penalty is awarded only in “ rarest of rare cases “.The doctrine of the "individualisation of punishment", that is to say of the punishment of the individual rather than the crime committed by him, which is of commanding importance in present day penology, is only a development of the neo-classical school of the revolutionary period in France, which modified Beccaria's rigorous doctrine by insisting on the recognition of the varying degrees of moral, and therefore, legal responsibility. Its fundamental doctrine is that the criminal is doomed by his inherited traits to a criminal career and is, therefore, a wholly irresponsible actor. Society must, of course, protect itself against him, but to punish him as if he were a free moral agent is as irrational as it is unethical.
CIRCUMSTANCES FAVOURING IMPOSITION : The weapon used by the accused in committing the crime,
the manner in which the operation was carried out, and the determination with which the accused acted, as well as the number of injuries inflicted on the unfortunate victims, give a clear picture of the cruelty and brutality. Survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence, sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence
CONCLUSION: The movement to abolish death penalty started with the humanitarian doctrine evolved by Marches De Cesar’s Bunsen Baccarat, Italian publicist. In 1764. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental Case. Time is ripe to have a second look at the life versus death question. If there has to be a law reform at all, some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation... Criminologists all the world over, however, argued that death has decisively lost the battle, and even in our Codes it has shrunk into a weak exception.