Don?t abolish capital punishment

Quite a lot of controversy has been raised in our country in recent time, on the question of capital punishment being abolished or not. An intense debate has been going on even at the present time over the existence of death penalty in our penal code in the wake of the suggestion of our President Abdul Kalam, who is very much in favour of humanitarian view to be taken while dealing with mercy petitions of condemned prisoners.

Quite a lot of controversy has been raised in our country in recent time, on the question of capital punishment being abolished or not. An intense debate has been going on even at the present time over the existence of death penalty in our penal code in the wake of the suggestion of our President Abdul Kalam, who is very much in favour of humanitarian view to be taken while dealing with mercy petitions of condemned prisoners.

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Being a very gentle and kind hearted person he could not really tolerate a person being sentenced to death and sent to gallows or executed because that would revolt against his humane approach of all social problems which is innate in his nature.

But quite interestingly enough our earstwhile Chief Justice of India Justice RC Lahoti even on the last day of his office did not fail to strongly support the retention of capital sentence in the statute that must be based on his vast personal experience as a Judge and otherwise also which urged him to take this extreme step of addressing pressmen even when he was laying down the reigns of his office as Chief Justice of India on October 31.

However, his successor Justice YK Sabbarwal, who has now taken over as CJI agrees with President Kalam, and has clearly expressed himself in favour of abolition of Capital Punishment. He is reported to have said on the assumption of his high office that as a judge of the apex court he was not against the capital sentence in rarest of rare cases, but personally he wanted the capital sentence to be erased from panel code. He clearly told the press ' I am of the view that as per the provision of law, death penalty should be awarded in the rarest of rare cases. But if you ask my opinion as a citizen of this country, I am for abolition of death penalty'. This very clearly explains his view.

With all respect to these high dignitaries namely President Kalam or for the matter of that our present CJI Justice Sabbarwal, I somehow do not agree with their view at all and would rather like to support the view of our ex-Chief Justice of India Justice RC Lahoti, who has affirmatively observed that death penalty should not be abolished from our statute. And reasons are not far to seek. My Personal experience of more than 60 years at the Bar, 55 years in the High Court and 5 years in the District Court and that too exclusively on the criminal side coupled with my revered father Pandit Ram Nath Shangloo, very wide experience of criminal trials of more than 60 years at Faizabad, compels me to say that it will be utterly wrong and against the interest of the people at large to abolish capital sentence from the statute once for all. I agree that you may impose capital sentence in the 'rarest of the rare cases' as our present CJI says.

In fact, it is even now being imposed in very serious cases and our Indian Judiciary is extremely conscious of this and only imposes death sentence in rarest in rare cases. But once you abolish it from the statute itself, how are you going to impose it in rarest of the rare cases even if you want to and even if the circumstances of the case strongly demand it.In fact, it is the deterrent effect of a capital sentence only which can prevent the recurrence of such a brutal crime. Yet another example. Supposing a person once convicted for murder and undergoing imprisonment for life jumps out of jail or in jail itself commits another murder, such a person will be charged u/s 303 IPC in which the sentence provided by law is only death sentence. Will you abolish death sentence u/s 303 IPC also? So you have to guard against such situations also.

Remember, even if a death sentence was awarded wrongly by a sessions judge, it was yet to be confirmed by the High Court, which could convert it into Imprisonment for life and then there was the Supreme Court also to intervene and alter the death sentence if the High court also went wrong and had confirmed it.

Finally, the President and the state Governors were there to grant pardon in a plea for clemency in suitable cases. So, why abolish capital punishment from the statute at all so that you may become absolutely powerless even to impose it in the rarest of rare cases also else peoples' fait in our judiciary is likely to be shaken and the crimes may also increase by leaps and bounds.

Of course, it will be imposed on confirmed criminals only who cannot be reformed at all and are a danger to our society and country. Such persons in fact have no right to live and are 'lynched' also when caught on the spot committing a brutal crime.
(The writer was former senior vice president HCBA)