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1、Death Sentence And Criminal Justice in Human Rights Perspective I.G. Ahmed* M.A., LL.M. (London), Ph. D., Professor, Head and Dean, Faculty of Law, University of Calcutta.1. IntroductionCapital Punishment is to be very sparingly applied with special reasons in cases of brutal murder and gravest offe
2、nces against the state. About retention or abolition of capital punishment, debates are raging the world over amongst social activists, legal reformers, judges, jurists, lawyers and administrators. Criminologists and penologists are engaged in intensive study and research to know the answer to some
3、perennially perplexing questions on Capital Punishment. A. Whether capital punishment serves the objectives of Punishment? B. Whether complete elimination of criminals through capital punishment will eliminate crime from the society? C. Whether complete elimination of crime from society is at all po
4、ssible or imaginable? Human beings are neither angels capable of doing only good nor are they demons determined to destroy each other even at the cost of self destruction. Taking human nature as it is, complete elimination of crime from society is not only impossible but also unimaginable. Criminolo
5、gists and penologists are concerned about and working on reduction of crime rate in the society. Criminals are very much part of our society and we have to reform and correct them and make them sober citizens. Social attitude also needs to change towards the deviants so that they do enjoy some right
6、s as normal citizens though within certain circumscribed limits or under reasonable restrictions.But we also have to think from victims point of view. If victims realise that the state is reluctant to punish the offenders in the name of reform and correction, they may take the Law in their own hands
7、 and they themselves may try to punish their offenders and that will lead to anarchy. Therefore, to avoid this situation, there is a great need for prescribed and proportional punishment following Benthams theory of penal objectives that pain of offender should be higher than pleasure he enjoys by c
8、ommission of the crime. But this “higher” must have proportionality and uniformity too; for example, for theft, trespass, extortion and so forth, capital punishment is not reasonable and even life imprisonment is disproportionate and unreasonable. 2. International Scenario2.1 The United Nations (UN)
9、: Capital punishment is one of the most debated issues around the world. The UN General Assembly recognised that in case of capital punishment there is a need for high standard of fair trial to be followed by every country. Procedures to be followed must be just, fair and reasonable. For example the
10、 UN Economic and Social Council (ECOSOC) in resolution No. 15 of 1996 (23 July 1996) encouraged member countries to abolish death sentence and recommended that those countries who retain it must ensure defendants a speedy and fair trial. Article 5 of the Universal Declaration of Human Rights 1948 pr
11、ovides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
12、 By several resolutions the United Nations suggested protection of human rights of the persons facing capital punishment which were again approved by Economic and Social Council in resolution No. 50 of 1984 (26th May ,1984). These may be summarised as follows: (1) Countries which have not yet abolis
13、hed capital punishment may impose it only for the most serious crimes; (II) Capital punishment may be imposed only in case of serious offences according to established law for the time being in force. There must not be any retrospective effect of the punishment; (III) Young persons at the time of co
14、mmission of crime, whose age was below16 years, should not be awarded death penalty; (IV) Death penalty must not be imposed upon pregnant women or on new mothers or insane persons; (V) Capital punishment must be imposed after following fair procedure according to Article 14 of the ICCPR and when gui
15、lt is clearly proved leaving no room for reasonable doubt or alternative explanation of the fact; (VI) Any person sentenced to capital punishment shall have right to appeal to the higher court and steps should be taken to ensure him right to appeal; (VII) Any one sentenced to capital punishment shou
16、ld be given the right to seek pardon or commutation of sentence; (VIII) When appeal, pardon or commutation of sentence proceeding is pending, capital punishment shall not be executed; (IX) Execution of capital punishment must be by way of minimum possible suffering. 2.2 The European Union: During 19
17、th century due to work of Prof. Beccaria and other criminologists, political and economic changes as well as due to initiatives of Central and Eastern Europe, the European countries almost became capital punishment-free area and recognised death penalty as cruel and inhuman, which imposes psychologi
18、cal terror and gives scope for disproportional punishment. The 6th protocol to the European convention on Human Rights 1982 provides for the complete abolition of death sentence in peacetime by all members. The Assembly of the Council of Europe in the year 1994 with further protocol to the European
19、convention on Human Rights recommended for the complete abolition of death penalty even in war time and under the Military Laws. On 3rd May 2002 the 13th protocol to the European convention for the protection of Human Rights and Fundamental Freedoms was open for signature of member states which prov
20、ides for the total abolition of death penalty in all circumstances. Most of the countries in the European Union have abolished death sentence. Capital Punishment has been recognised as cruel, degrading and inhuman punishment which infringes upon the basic human rights of the accused as expressed in
21、article 3 of the European Convention on Human Rights. For details see 13th protocol to the European convention for the protection of Human Rights and Fundamental Freedoms. Article 3 of the UDHR also provides for right to life, liberty and security of human beings. Following the resolutions of the Eu
22、ropean Union and the United Nations, several countries abolished death penalty completely. For example, Germany is a death penalty-free zone. However, China imposed maximum death penalty. Saudi Arabia, Iran, Iraq, the United States of America (USA) are also in the first row so far the application of
23、 capital punishment is concerned. In England it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the end of 18th century about 200 offences were punishable by death. In Warwickshire (England) a person was prosecuted on the charge of murder. A. Felicitla, Human Rights and
24、Capital Punishment, in Human Rights and the Law: National and Global Perspectives, (Snow white) 1997, 207. A little girl was under the care and custody of her uncle due to death of her multi-millionaire father. Accordingly she was about to inherit her fathers property when she would become 16 years
25、of age .The uncle was affectionate to her about her food, shelter, education and other reasonable necessities. When she was about nine years of age, one night the neighbours heard her cry which was quite unnatural saying “oh good uncle, please dont kill me” and so forth. Just after this incident she
26、 disappeared and could not be traced. The police were informed about the matter. The uncle was suspected of committing murder of his niece and disposing of her body as in her absence he was her fathers heir apparent and would inherit his huge estate. He was arrested immediately though was released o
27、n bail on condition to produce the girl soon before the court. He could not produce the girl and he was sentenced to capital punishment. But after several years of the execution of death sentence, the girl returned to Warwickshire. She said that due to fear of punishment for her mischief, she had es
28、caped to the neighbouring town for those years. Death sentence once enforced is irreversible and irrevocable and the life which is lost cannot be brought back and the injustice done is irreparable. 3. Penological aspects There are several theories of punishment such as deterrent theory, preventive t
29、heory, retributive theory, reformative theory, rehabilitative theory and so forth. Deterrent theory of punishment emphasises more on protection of society from offenders by eliminating offenders from society. According to this theory there are certain objectives of punishment that criminals should b
30、e deterred from breaking the Law, and deterrent punishment such as capital punishment should be an example to society and persons who have tendency to commit similar crime; and that if any one commits such a crime, he will be punished in the same manner. In this way it prevents people from breaking
31、the law and it reduces crime rate in the society by elimination of criminals. Therefore, this theory has four justifications (1) Prevention, (2) Isolation, (3) Elimination and (4) Exemplary threat to potential criminals in the society. 4. Indian scenario 4.1 Legislation: The Indian Penal Code, 1860
32、(IPC) is the Public Law and substantive Criminal Law which defines crimes and prescribes punishments. Section 53 of the IPC provides for death sentence and imprisonment for life as alternative punishments. These are as follows: (1) death sentence or (2) imprisonment for life, (3) imprisonment with o
33、r without hard labour, (4) forfeiture of property and, (5) fine. Under Indian Penal Code, death sentence is alternative punishment for the following several offences such as; waging war against the government of India (sec.121); Abetting mutiny actually committed (sec.132); Giving or fabricating fal
34、se evidence upon which an innocent person suffers death (sec.184) ; section 302 punishment for murder, abetment of suicide of child or insane person under section 305, section 307 punishment for attempt to murder by life convicts, section 396 dacoity with murder; but nowhere it is mandatory except u
35、nder section 303 which deals with punishment for murder by a life convict. In Mithu v. State of Panjab (1983)2 SCC 277 the apex court declared that section 303 is unconstitutional because it is not in tune with articles 14 and 21 of the constitution. In India, non-governmental organisations as well
36、as general people are fighting against inhuman, degrading and cruel punishment and protection of human rights. Nevertheless capital punishment still remains in force. Although judiciary has evolved the principle of “rarest of rare cases” and has indicated that it is with special reasons that death p
37、enalty must be imposed in cases of exceptional and aggravating circumstances where offences are very grave in nature, the application of the principle itself, as evident from a plethora of cases, is violative of Constitutional provisions. 4.2 Constitutional Law: Article 21 of the constitution guaran
38、tees right to life and personal liberty to all which includes right to live with human dignity. No person shall be deprived of his right except according to the procedure established by law. Therefore, the state may take away or abridge even right to life in the name of Law and public order followin
39、g the procedure established by Law. But this procedure must be “due process” as held in Maneka Gandhi v. Union of India AIR 1978 SC 597. The procedure which takes away the sacrosanct life of a human being must be just, fair and reasonable. So, fair trial following principles of natural justice and p
40、rocedural Laws are of utmost importance when capital punishment is on the statute book. Therefore, our constitutional principle is in tune with procedural requirements of Natural Law which constitute the inner morality of Law which may be stated as follows: (i) Death sentence is to be used very spar
41、ingly only in special cases. (ii) Death sentence is treated as an exceptional punishment to be imposed with special reasons. (iii) The accused has a right of hearing. (iv) There should be individualisation of sentence considering individual circumstances. (v) Death sentence must be confirmed by the
42、High Court with proper application of mind. (vi) There is right to appeal to the Supreme Court under article136 of the Constitution and under section 379 of the Cr.P.C. The Supreme Court should examine the matter to its own satisfaction. (vii) The accused can pray for pardon, commutation etc. of sen
43、tence under sections 433 and 434 of the Cr.P.C. and under articles 72 and 161 to the President or the Governors. Articles 72 and 161 contain discretionary power of the President and the Governor beyond judicial power to interfere on merits of the matter; though judiciary has limited power to review
44、the matter to ensure that all relevant documents and materials are placed before the President or the Governor. However, the essence of the power of the Governor should be based on rule of Law and rational considerations and not on race, religion, caste or political affiliations. (viii) The accused
45、has a right to speedy and fair trial under articles 21 and 22 of the Constitution. (ix) The accused under article 21 and 22 has right not to be tortured. (x) The accused has freedom of speech and expression within jail custody under articles 21 and 19 of the Constitution. (xi) The accused has right
46、to be represented by duly qualified and appointed legal practitioners.4.3 Judicial approach: In Jagmohan Singh v. State of U.P. AIR 1973 SC 947, 1973 Cr. L.J. 330, 1973 SCC (Original) 162. it was argued that capital punishment for murder violates articles 21 and 14 of the Constitution. The counsel f
47、or the appellant contended that when there are discretionary power conferred on the judiciary to impose life imprisonment or death sentence, imposing death sentence is violative of article 14 of the Constitution if in two similar cases one gets death sentence and the other life imprisonment. On this
48、 point the Supreme Court held that there is no merit in the argument. If the Law has given to the judiciary wide discretionary power in the matter of sentence to be passed, it will be difficult to expect that there would be uniform application of Law and perfectly consistent decisions because facts and circumstances of one case cannot be the same as that of the other and thus these will remain sufficient ground for scale of values of judges and their attitude and perception to play a role. It was also contended that death penalty violates not only article 1
