Capital punishment should be abolished???
Justice Kurian Joseph has presented his views on abolishing capital
punishment. He has re-ignited a debate. The law laid down in Bachan Singh
(1980), upholding the validity of the death penalty and laying down guidelines
for awarding death in ‘the rarest of rare’ cases’, still holds the field. The world is increasingly questioning the
wisdom of capital punishment. Justice Joseph has underscored the arbitrary
manner in which it is awarded by different judges and the way public discourse
influences such decisions.
The constitutional regulation of capital punishment has failed to prevent
death sentences from being “arbitrarily and freakishly imposed”. The maximum sentence that may be imposed
usually revolves around the nature of the crime, its gravity and cruelty, and
the number of fatalities. Theories of punishment are based on whether it ought
to be punitive, retributive, reformative or restorative. If there still
prevails a perception of arbitrariness in the way death sentences are awarded,
the only lasting solution is their abolition.
But a smaller fraction of human rights activists, since long time have
been demanding repeal of death sentence. Absolutely no doubt, death sentence
could be used as a last resort and with extreme sense of responsibility, in
order to control heinous crimes. But, to repeal it totally would mean
encouraging criminals to do any degree of heinous crimes against helpless
citizen and get away with so easily because Death penalty has been abolished?
Our legal elites may have a perception about the arbitrariness of the
death penalty. Ordinary people don’t share in this perception. The judiciary
and the law commission have historically shown very little sympathy for the
victims. The Nirbhaya case continues to drag on because of the delays in the
Supreme Court and now it’s stuck waiting for them to hear the case yet again.
We should also remember that there is no such thing as a life imprisonment. Furthermore,
even if a criminal is convicted, they are frequently paroled for a wide variety
of reasons. To abolish the death penalty will be yet another confirmation that
the judiciary has very little interest in providing justice to the victims or
their families.
Gandhi dreamt of a Ram Raj where a woman bedecked with jewelry could walk
safely in the dead of night peacefully, unmolested by anybody for that matter. Is
it there? Is it likely to be there? In that case the state withers away and
there is no need for capital punishment. With social sanction relegated to
oblivion, fear of punishment appears to be the only deterrent available to keep
in check from the marauders, robber barons to petty thieves. As is known when the
disease becomes severe the treatment has to be severe including surgical
removal. More the society sinks deep into the mire more severe should be the
punishment. Either the society must aspire and reach Gandhian heights or must
seek practical measures to build an orderly society. Capital punishment may be
the last resort. Many other contributory factors must be brought into play
their expected roles in every branch of the governance paraphernalia and even
social life and the capital punishment may become redundant.
A question has been directed to those who oppose capital punishment. Should
we have kept Ajmal Kasab alive and fed him biryani at the taxpayers' expense? In
fact, our only regret with our execution of Ajmal Kasab is that we could only
execute him once.
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