NOOR UL SHAHBAZ

A crime violates the laws of society and heinous crimes like rape and murder violate not only laws but the moral foundations of society. If such cases are not dealt proportionately to the gravity of the offence, then it may send a “wrong signal”. Capital punishment in rarest of rare cases serves as a guard at the gates of society. It serves as a deterrence and as a warning. Death sentence as the forfeiture of right to life is a consequence of what the criminal has done. The judiciary has at times relaxed the punishment by commuting the death sentence to life imprisonment after proper analysis of the facts and circumstances of the case. A convicted person is deprived of his right to life only after following the due process of law. A soft approach in the form of a reformative approach seems to be of no avail.
Justice A.P. Sen in 1979 put forth his dissenting judgment in a case (which later became a majority judgment only after a year) titled Rajendra Prasad v. State of Uttar Pradesh. To quote him, “The case of this accused is destructive of the theory of reformation. The “therapeutic touch” which is said to be the best preventing repetition of the offence has been of no avail. Punishment must be designed so as to deter, as far as possible for commission of similar offence… I am quite sure that with the commutation of death sentence, the accused will… again become a menace to the society”.
The learned judge further observed, “The humanistic approach should not obscure our sense of realities. When a person commits a crime against society by committing a cold blooded and pre-planned murder of one innocent person, the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.”
A year later in 1980 the constitutionality of death sentence was upheld by Supreme Court in Bachan Singh v. State of Punjab. Overruling its earlier decision in Rajendra Prasad case by a majority of 4:1, the court held that death sentence as punishment for murder is not unreasonable and hence not violative of Articles 14, 19 and 21 of the Constitution.
One may question why there is repetition of similar crimes even after death sentence for such crimes, to which the answer is: if death sentence is abolished, what kind of message it will convey to the criminal? One may argue on humanitarian grounds but what about Nirbhaya who cannot say anything now about the justice she wants. What about those criminals who committed barbaric rape and murder of a helpless school-going girl of 18 years (Dhananjoy Chatterjee alias Dhana v. State of West Bengal)? What about those criminal gangs who used to kidnap small children below 5 years of age and make use of them whenever necessary and dispose them of when they were no longer useful (Renukai Bai alias Rinku alias Ratan & Another v. State of Maharashtra)? What about the minor daughter whose own father raped her (State of Himachal Pradesh v. Asha Ram)? What about the rapists and murderers of Aasifa and Neelofar? What about the school-going girl Tabinda Gani, who was raped and murdered in Langate? What about the rape victims of Kunan Poshpora? These daughters of the soil will always cry for justice if appropriate punishment, proportionate to the gravity of the offence, is not dispensed.
By saying that while awarding death sentence there may be miscarriage of justice, but the judiciary time and again has made strong efforts to prevent miscarriage of justice. The court while deciding such cases has to take into account the manner in which the offence was committed, motive, social effect, magnitude, and whether the victim is an innocent child or a helpless woman. More importantly, after 1980 the death penalty is awarded in only the rarest of the rare cases. Other elaborate safeguards provided in the procedural laws, e.g. Sec 235(2), 354(3) of CrPC, etc, clearly indicate that only after a thorough scrutiny at every stage of the case, the chances of human error or judgment are not only minimised but the procedure also satisfies the rule of natural justice and fair play.
Punishment to be effective should be proportionate to the gravity of the offence. The reformative view of penology should not be stretched too far. That has proved useful in cases of juvenile delinquents and some first-time offender cases, but recidivists, hardened, and white-collar criminals do not respond favourably to reformist ideology. It is for this reason that a great jurist, Salmond, observed, “Substitution of reformation for deterrence may be disastrous” (Salmond Jurisprudence. 12th Ed. 1966, p. 27).
—The writer is a lecturer at Sopore Law College

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