Nirbhaya rape and murder case is all set in its final stage to hang the convicted Akshay, Mukesh, Vinay and Pawan. The commission of crime by a criminal is always violative of the laws set forth for smooth functioning of a society and gravity of some heinous crimes like rape and murder falling under the category of “rarest of rare” cases is not only violative of the laws of a state but involve moral turpitude harmful for society, public peace and tranquility and is not restricted to two individuals or groups. If such cases are not dealt proportionately to the gravity of the offence then any lenient approach towards these criminals may send a ‘wrong signal’ to the society. Capital punishment in rarest of rare cases as a rule according to procedure established by law is the standard punishment for such cases which affect the society in general and the victim in particular. It serves as a guard at the gates of harmonious societies for protecting those who are helpless before dangerous criminals. It serves as a deterrent effect on criminals and acts as a sufficient warning to criminals and is undoubtedly one of the most effective punishments despite the fact that it fails in its proper application. Death sentence as a 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 into life imprisonment after proper analysis of the facts and circumstances of each case. To deprive a convicted person of his right to life is only after following the due process of law although the judicial luminaries sitting on the seat of justice delivery system are not God’s but they are second to God and they follow a set procedure to dispense justice in the cases before them. The soft approach towards the convicted criminal in the form of a reformative approach seems to be of no avail. A.P Sen Justice 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, held that death sentence as an alternative punishment for murder is not unreasonable and hence not violative of Article 14, 19 and 21 of the Constitution. The apex court has justified capital punishment in the above mentioned case and stated a reason of its infliction. To quote, “the question whether or not death penalty serves any penological purpose is a different and complex issue. It has evoked strong divergent views…..notwithstanding the view of abolitionists to the contrary, a very large segment of people, the world over, including jurists, sociologists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society”. The stating of reasons behind awarding death penalty is its deterrent effect on criminals, here one has a question, then why there is repetition of similar offences again and again by the criminals and the answer is that presume if it is abolished what kind of message it will serve to the society and particularly to the criminal gangs who will enjoy free space for commission of their criminal acts, it may amount to give a free hand to them and leave the society on mercy of Almighty. One has a say that on humanitarian grounds it is not good to hang a criminal and take away his life, but these questions will remain unanswered that what about Nirbhaya who has left nothing to prove his innocence? What about those girls while preparing for their exams, criminals took advantage of their being alone and committed the shameful acts on them (Molai & another v. State of Madhya Pradesh)?, what about those criminals whose sacred duty was to ensure the protection and welfare of people but they committed heinous and barbaric rape and murder on a helpless and defenseless school going girl of 18 years (Dhananjoy chatterjee alias Dhana v. state of West Bengal)? , what about those criminal gangs who used to commit thefts by snatching the gold chains in festivals or crowded places and kidnap small children below 5 years of age and make use of them whenever necessary and dispose them off when they were no longer useful (Renukai Bai alias Rinku alias Ratan & another v. state of Maharashtra)?, what about the victim minor daughter whose only trust in this world was his father and she lost the trust and became a victim of a heinous and grave crime committed by his father against her (State of Himachal Pradesh v. Asha Ram)? What about the culprits of Aasifa and Neelofar rape and murder Shopian case? What about the school going girl Tabinda Gani rape and murder case in Langate? What about the rape victims of kunanposhpora kupwara whose culprits are yet to be ascertained? These daughters of the soil will always cry for justice if appropriate remedy proportionate to the gravity of the offence is not dispensed.
One may have another question as to awarding it capriciously, arbitrarily, discriminately. By saying that while awarding it, there may be failure of justice but judiciary from time to time 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 when the victim is an innocent child or a helpless woman and more importantly after 1980 is awarded in rarest of the rare cases. Furthermore no one can deny the fact that death penalty is unconstitutional if imposed arbitrarily, capriciously, unreasonably, discriminately but here the defect lies in its execution not the matter in itself and we must remember if it is administered objectively and judiciously it will enhance confidence of people in criminal justice system and will serve the purpose. The 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 minimized but reduced to almost nil and that procedure also satisfy the rule of natural justice and fair play.
Conclusion: – Punishment to be effective should be proportionate to the gravity of the offence. Penal policy must be in conformity with the doctrine of pleasure and pain (principle of hedonism). The classification of criminals in categories from the point of view of their treatment and correction is a must. 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 favorably to reformist ideology. It is for this reason that a great jurist Salmond has observed that, “substitution of reformation for deterrence may seem disastrous” (Salmond Jurisprudence 12th Edt. 1966 p. 27).
Noor Ul Shahbaz (MA, LL.M GOLD MEDALIST) is a Lecturer and former acting Principal at Sopore Law College
