Search
  • The L word Blog

Saza-e-Mout banaam Umarkhed: An Argumentative tussle

Written by: Saloni Lohan, Student, UILS, Panjab University, Chandigarh


Abstract

The basic purpose of criminal law is the reformation of offenders and not retribution. But as a counter-argument, it’s the duty of the state to protect the interest of society at large and to retribute for maintain society’s faith in the criminal justice system. Law in India regarding the imprisonment of convicts with life imprisonment has not just been evolved with time but it has become more complex and complicated with the passage of time. On the other hand, Capital punishment or death penalty is a governmental sanction which is approved by the courts of law. It is a kind of a legal homicide which is awarded to the offenders indulged in inhumane acts of utmost impunity and disregard to humanity. This article hence intends to decide the evolution of these two punishments and how they act in their independent sphere but with an argumentative tussle.


Introduction

“I constructed my prison with bars of self -will and self-indulgence from which I could not escape” -Kathy Fitzhugh

“should the killer live? The victim never had a choice!”


The basic purpose of criminal law is reformation of offenders and not retribution. But as a counter- argument it’s the duty of the state to protect the interest of society at large and to retribute for maintain society’s faith in the criminal justice system.

Life imprisonment

Law in India regarding the imprisonment of convicts with life imprisonment has not just been evolved with time but it has become more complex and complicated with the passage of time.


Since the British rule the concept of imprisonment was dealt with transportation of life but after independence transportation of life was amended to life imprisonment. Therefore, life imprisonment occupies an important place in the criminal justice system of India. It is the newest entrant among punishments under IPC but is now the most popular approach. It can be seen as an alternative to death penalty.

There is no killing in the name of justice” -Archbishop Desmond Tutu

Purpose of imprisonment

There are basically five purposes of life imprisonment: -

  • Punishment: the court of law has to punish the person who commits a crime. They are put in jail, deprived from their freedom and removed from the society. Punishment is attached to the crimes so that the people committing them can reform themselves.

  • Deterrence: deterrence is important so that a person who has committed an offence do not repeat that crime and respects the principles of the society by changing himself into a law-abiding citizen.

  • Public protection: when the person commits a heinous offence, he has to face severe punishment because justice must be seemed to be done.

  • Re-Habitation: The modern theory of imprisonment is not based on retaliation but is based on reformation. Hence, it is important to rehabilitate the criminal into society.

  • punishment must be in accordance to the degree and severity of offence committed.

Life imprisonment in India

life imprisonment means the entire life in prison. IPC does not mention any term fixed as life imprisonment. In response to this it is a settled principle through precedents that life imprisonment means a minimum of 14 years of imprisonment. after the Nirbhaya case in 2012, supreme court opined that life imprisonment means a minimum of 14 years but is not limited to 14 years and can be extended up to 25 years of imprisonment. Hence the chronology moves as:

  • In British India the severe most quantum of punishment was transportation of life after death sentence

  • After independence through amendment of 1955 transportation of life was replaced by life imprisonment

  • After this amendment, the new controversy arose over the duration of life imprisonment and what life imprisonment means.

  • In response to settle the controversy it was contended that life imprisonment shall mean imprisonment for a period of 14 years.

  • life imprisonment is different from rigorous imprisonment and simple imprisonment. So, the second issue of consideration before the courts was that whether life imprisonment should mean a simple imprisonment of 14 years or a rigorous labour of 14 years? In short, what is the nature of life imprisonment was again a question in consideration.

  • In Naib Singh versus state of Punjab the life convicted accused contented that since he has undergone rigorous imprisonment and has spent 14 years of his sentence in jail his sentence should be commuted. Rejecting his contentions, the court held that the change from transportation to life imprisonment does not change the nature of punishment. A prisoner sentenced to transportation will be considered to be sentenced to life imprisonment with rigorous labour.

  • In the case of Gopal Vinayak Godse vs. state of Maharashtra the court reiterated that life imprisonment means imprisonment for the entirety of prisoner’s life.

  • In the landmark case of Union of India versus Sriharan 2016 the constitutional bench of the supreme court made far-reaching observations in regard to life imprisonment with the majority of 3:2. The court opined that while commuting a death sentence into life imprisonment, the courts could place the sentence beyond remission for a predetermined period when death sentence seems to be harsh and imprisonment seems to be mild.

  • Therefore, after Sridhara’s case there are recent developments on life-term sentencing which are affected in two categories:

  • Category 1: people who are convicted with life imprisonment after the criminal amendment act of 2013 and 2018. Here, life imprisonment shall mean imprisonment of person’s remainder of natural life.

  • Category 2: prisoners whose death sentence are judicially commuted to life imprisonment: here, the court can alter the death sentence to imprisonment for more than 14 years say for example 20 to 30 years as per the gravity of the offence.

Therefore, a life imprisonment sentence can be commuted or remitted.

  • In short, the law of life imprisonment in India has witnessed drastic changes from the British era till date:

  • firstly, transportation of life was removed from the legislations of penal laws in India. It was replaced by life imprisonment, but the topic did not end here. New controversies emerged in response to nature of life imprisonment and duration of life imprisonment. Although, the legislation is silent about the aforementioned issues but the courts from time and again have made precedents in order to deal and settle this legal issue. Initially, life imprisonment was meant to be an imprisonment of 14 years but with the change in time, chronology and historical events going on at global level it was seen that life imprisonment should be given its literal Meaning that is imprisonment for the person’s entire life. Therefore, looking and giving due consideration to the facts and circumstances of each case it is a settled principle now that life imprisonment means imprisonment of a minimum period of 14 years but it is not limited to 14 years and may extend beyond 14 years as the case may be. In certain cases, it also means imprisonment for the remainder of persons natural life. When it comes to the nature of life imprisonment, it shall mean imprisonment with rigorous Labour as the court may deem fit as the case maybe.

Life imprisonment can be extended as much as the action of the prisoner. There is no uniformity of this punishment. Basically, how much quantum of punishment is to be decided and given to an accused or convicted person depends upon fact to fact and circumstance to circumstance of each case. It is the court which will decide the quantum of punishment. Various factors led to the determination of such quantum for example the severity of offence, the victim involved in the offence, etc. Therefore, the penological trends keep on changing because the law lacks uniformity and clarification as to the fixed quantum of punishment. This question is open to judicial interpretation.

Advantages of life imprisonment

  • In severe offences such as a rape and murder, the life of the victim and their family gets destroyed so if they accused gets life imprisonment there is a sense of mental satisfaction given to the victim and his family as justice is seem to be done.

  • life imprisonment is seen as a chance given to the criminals to realise their mistakes so that they can reform themselves by getting pardoned from death sentence

  • Imprisonment for young and youthful offenders is favourable. They have their entire life to live and an act committed in the heat of passion must not put a full stop on their lives

  • restitution into the social set up is the utmost goal of the Indian criminal system.

Disadvantages

  • life imprisonment cannot be a substitute punishment for capital offences which are punishable with death sentences

  • Punishment must be scaled in an effective manner if the execution of life imprisonment is not proper then there is always a risk that the offender will violate the societal setup and affect the life of the victim once again.

  • punishments should remain constant: a punishment given in regard to the same nature of offence must be constant. But, the issue with life imprisonment is that it has already been modified and altered with the requirements of time. for example, in the case of murder if two different murders take place committed by two different accused then depending upon the gravity of offence these two accused may be punished with different punishments. Therefore, life imprisonment is not a uniform punishment. This creates problems in the execution process and confusion in the minds of the accused and the executor.

  • we are still unable to maintain the balance between the judicial function of sentence imposition and the executive function of sentence implementation due to varieties of life imprisonment.

  • the people indulged in antisocial activities should not be given a chance to be maintained on the state’s expenses

  • For the proper execution of life imprisonment, proper infrastructure such as additional number of prisons, authorities, etc. are required which is not up to date


Capital punishment

Introducing of death penalty is not revenge, it is the highest degree of social protection” -Vladimir Antyufeyev

Capital punishment or death penalty is a governmental sanction which is approved by the courts of law. It is a kind of a legal homicide which is awarded to the offenders indulged in inhumane acts of utmost impunity and disregard to humanity.

Since the existence of human civilization, crime has been a part of our society. Capital punishment has been prevalent since times in memorial. ‘an eye for an eye a tooth for a tooth’ is the philosophy behind it. Since the beginning of recorded history, there is an indication that capital punishment or death sentence has been a part of justice system. In ancient society, the concept of blood money was prevalent. By the time of mediaeval age, before the beginning of the prison system death penalty was a generalized punishment even in minor offences. In Rome, a person was punished by hurdling from rock if he committed any offence. Taiwan adopted lethal injections and Saudi Arabia used to behead the offenders or stone them to death. All such executions were public events. It was only after the emergence of concept of nation state, that natural and legal right became the topic of utmost consideration and now death penalty was to be reviewed from its core. Among countries around the world, all European Countries (except Belarus), Australia, New Zealand and Canada have abolished capital punishment while Brazil allow it in severe cases as exception. Almost 139 countries have abolished capital punishment. They see capital punishment to be against human rights. In India, during the Mughal reign there were no fixed norms for punishing any crime but in British rule judicial procedure was followed whether acceptable by Indians or not. Good number of freedom movement leaders were hanged to death. The British enacted the Indian penal code (IPC) to penalize crimes included a long list of crimes punishable with death penalty. Even, article 21 of the Constitution of India provides that no person can be deprived of his right to life except according to the procedure established by law. In mithu versus state of Punjab the supreme court of India abolished mandatory death sentence and declared it to be unconstitutional as violative to article 21.

Initial execution of capital punishment

Initially capital punishment was executed for the following reasons:

  • For preventing humans from committing heinous offences

  • By the fear of law and punishment

  • this fear of death regulated the human acts of indulging in severe offences

However, with the social evolution and awareness of Human rights, such practice can no longer be tolerated but may continue with aberrations.

Procedure followed before execution of capital punishment

In India, the high courts and the supreme court can award death penalty without confirmation but the sessions court has to get confirmation from high court to execute the award of capital punishment. The option of appealing to higher courts is an Eveready option for the accused. He can also submit a mercy petition before the President of India or the governor of the state as the case may be.

Execution of death sentence

In India the execution of death sentence is carried out by two methods:

  • Hanging by neck till death as per CRPC

  • Executed by firing squad as per army act of 1950

IPC lays down the legal Framework which is used for capital punishment it permits the use of death penalty in the rarest of rare cases. It means that even after several leniency from judiciary if a person does not improve himself, he deserves the severest punishment that is death penalty.

Advantages of capital punishment

  • Arguably the greatest deterrent to criminal: Human beings naturally fear to die. Hence, capital punishment is the most effective way to discourage crimes in society

  • heinous crimes for example rape, murder treason, terrorism can be reduced when death penalty is practiced

  • The severity of crimes deserves a serious punishment. Let's take an example a terrorist who deliberately murders dozens of innocent civilians do he deserve to live in prison at the cost of state and be taken care by the same society which he harmed? Justice must not only be done but it must be seemed to be done.

  • Punishment must be equivalent to the crime

  • In the greatest interest of the society serial killers having high tendency to continue killing must be awarded death penalty.

  • capital punishment is the best and the last resort. If despite of repeated re-institution, a person does not improve his social behaviour deliberately, he must be severely punished.

Disadvantages to capital punishment

“Capital Punishment is the most premediated of murders" -Albert Comus
  • Killing is a sin: it is believed that human being must respect all sorts of mankind which will ultimately uplift humanity. Hence, killing is seen as a sin.

  • Thou shall not be killed: an expression made in the Bible which indicates that killing is something which one must never endorse.

  • Death penalty is a barbaric act of Indecency: no matter how serious offence one has committed it is inhumane to punish him by taking away the most precious thing: his life. Death penalty is too barbaric to be practiced by a civilized society.

  • methods of execution of death sentence are crude and cruel and therefore inhumane.

  • Chances of killing innocent people in the name of legal homicide are quite high and is against the criminal law principle of executing an innocent and excusing a guilty.

  • When certain crimes are done due to impulse driven by emotions in the heat of passion, in such cases capital punishment would be too harsh to be executed

  • self-guilt is the biggest realisation: if the offender or the accused person is himself guilty of killing someone, in that particular case his self-guilt must be taken into consideration and he must be given a chance to restore himself into the societal set up by reforming and not a retributing.

  • Crime never pays: There is nothing like a perfect crime. A person’s actions invite reactions if you have done something severe to the society then its outcome should be severe but for minor offences the outcome should not be capital punishment.

  • Death penalty takes always the chance of reformation.

Conclusion

Death sentence vs. life imprisonment: An Argumentative tussle

“Who exactly gives us the right to kill? If killing is wrong, then why are we allowed to kill?”- John Grisham

After analysing in great detail about the evolution, pros and cons of life imprisonment and death penalty as punishments for criminal offences, it is now time to highlight the argumentative tussle going on between them. The scholars and supporters of human rights believe that taking someone’s life under the shadow of legal homicide is inhumane. But on the contrary crimes are themselves acts of inhumanity, something against mankind. Hence, now the issue is how should such offenders be punished? Should they be deprived of their right to life for taking away someone else’s? or should be the one to suffer lifelong in confinement? The balanced approach to answer this question would be a mid-way approach. Humans are God’s Supreme creation. We are painted wearing a uniform of humanity which is supposed to be respected by all. There is no society or civilization in the world which exist without the presence of anti-social ingredient but at the same time a firm commitment to uphold human rights is a must. Initially, in less progressive societies of ancient civilizations, death sentence was the only punishment that was executed if certain wrong was committed. At that time, the gravity and severity of offence was not taken into consideration. But today, human rights are the supreme watchdog. They are to be upheld at any cost. This argumentative tussle can best be settled down by giving due regard to both of them in their independent spheres. Recently, the supreme court of India has observed that capital punishment is an exception and life imprisonment is a rule. Therefore, in awarding capital punishment human rights must not be neglected. In India, this mid-way approach is reached by practising certain precedential and legislative rules such as:

  • The theory of rarest of rare

  • Breaking the pen’s nib: A symbolic ritual

  • Mercy petition

  • Severe life imprisonment with rigours labour

After the abolishment of mandatory death sentence in mithu Singh’s case, the execution of death sentence now depends on its severity. Today death penalty is awarded in cases where the case is of rarest of rare nature. For instances, the recent capital punishment was executed to the accused of Nirbhaya’s case in 2020.Even in the execution of death sentence, human rights are to be considered. That method of execution is to be used which causes the minimum pain.


It is the symbolic traditional practice of courtroom judges to break the pen’s nib after writing a death sentence because:

  • He doesn’t want to write another death sentence in his tenure

  • Taking someone’s life is believed to be unholy

  • To override his guilt as he in his legal capacity is doing an act which only god is empowered to do.

The accused has the right to appeal before higher courts and may also ask for mercy from the head of the state. For instance, Pawan Gupta, the accused of Nirbhaya’s case pleaded for mercy before the president which was rejected. Hence, this shows that the execution of capital punishment is a long procedural task. All these procedures are created just to ensure that human rights were given utmost regard. So, there is a very little difference between awarding death penalty and life imprisonment. Hence certain things are to be considered:

  • The nature of offence

  • The gravity of offence

  • Who is the victim?

  • Who is the accused?

  • Age of the accused

  • Circumstances under which the offence was committed, etc.

All these questions are to be analysed with the application of judicial mind and circumstances of each case. Lastly, the question as to which of these two punishments is better? The answer would be none. As humans we must hope that the dark clouds of crime don’t overtake humanity. There is nothing like a prefect crime because crime never pays. It only effects the peace of the society and creates a feeling of terror and fear in the minds of law-abiding citizens.

Punishment is the justice for the unjust” -Saint Augustine

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.

Subscribe Now

Contact Us

 © 2020 All Rights Reserved. Created by Paras and Team