•
It
is well known that punishment is one of the older methods of controlling crime
and criminality.
•
Man
being selfish by nature, some kind of external coercive authority is needed to
keep him within limits and to control his unfiltered liberty. Uncontrolled
liberty would lead to a State of anarchy and chaos. In its proper sense,
liberty consists in the power to do everything that does not injury another.
•
HERBERT SPENCER, also said—
•
‘Every
man is free to do what he desires provided he infringes not with the equal
freedom of any other man.’
•
Thus, liberty implies freedom of action so far
permitted by law.
•
Justice according to Law:
•
In modern times, what is given by the courts to the people
is not what can really be called justice but merely justice according to law.
Judges are not legislators and it is not there duty to correct the defective provisions
of law.
•
•
Their
only function is to administer the law of the country. They are not expected to
ignore the law of the country.
•
In the modern state, the administration of
justice according to law is commonly taken to imply recognition of fixed rules.
•
Judges
do not play and are not expected to play the role of legislators.
•
If
law is defective, it is the duty of the people to demand from their legislators
to alter the same.
•
However,
so long as a particular law is on the statute book, the same has to be enforced
unmindful of the consequences.
• Procedure of Criminal
justice
•
In ancient law there was no such thing as a crime and the
introduction of outlawry marks the real origin of criminal law. Criminal law
however, differs from penal law in two respects. In the first place,
the former necessarily implies a judicial proceeding of some kind. Secondly,
it involves some element of public condemnation as it found in outlawry.
•
The
word ‘crimes’ comes from Latin ‘crimen’ and means ‘an act
publishable by law, as being forbidden by statute of injurious to the public
welfare.’ It is used of grave offences.
•
A
crime is often an injury to private person who has a remedy in a civil action
but it is as an act or default country to the order, peace and well being of
the society that a crime is punishable by the State.
• The Court-Room Procedure:
•
Step 1. - It
is very simply the apprehension of the respective defendant within the
territorial limitations of governmental jurisdiction concerned- i.e. unless he
voluntarily surrenders to the authorities, he is literally caught and arrested,
either in the act of commission, while fleeing, or of a result of an arrest
warrant, which the arresting officer must obtain in advance from properly
constituted authority.
•
Step 2. - It is closely related to the first, the
arrested person brought before a magistrate for the preliminary examination in
order to determine whether he shall be released or shall be held to answer. If
the latter, the accused will be held either in custody or released on
bail to await the decision of the public prosecutor on the question of whether
or not an information or an indictment shall be filed against him.
•
Step 3. – It represents the formal accusation by the
process of ‘information’, depending upon the statutory requirements or
practices in the several jurisdiction concerned.
•
Step 4. - It
consists of the arraignment and pleading. An arraignment consists simply of the
official formal reading of the terms of the indictment of the information to the
accused by the court of jurisdiction. The arraignment concludes with the
significant question, ‘How do you plead?’- Giving the accused the choice of
guilty’ or ‘not guilty’.
•
Step 5. - It is
the trial itself, if there is one at all – if not, the judges verdict takes its
place as it true in many, but not in pleadings of guilty. The judge conducts
the trail with the help of advocates. It includes various motions for dismissal
of the case, change of pleadings, placing of dispositions, possible dismissal or
change of charges.
•
The
next four steps are; Verdict, judgment, and sentencing, appellate review,
followed by enforcement of judgment, or the execution of the sentenced imposed.
•
B. DEPORTATION:
•
The
deportation of criminals is also called punishment. Incorrigible and hardened
or dangerous criminals were generally deported to far-off place with a view of
eliminating them from the community.
•
In
England, war criminals were usually transported to distant Austro-African
British colonies. The practice of deporting political offenders was commonly in
vogue in British India. It was popularly known as ‘ kalapani’ and such
offenders were dispatched to remote Island of Andaman and Nicobar.
•
This
mode of punishment involved transportation of criminals beyond seas and,
therefore, had a psychological effect on Indians because going beyond seas was
looked with disfavour from the point of view of religious and resulted into
out- casting of the offender.
•
The
practice was finally abolished in 1955.
• CORPORAL PUNISHMENT:
•
(1) Flogging:
•
In
India, whipping was recognised as a mode of punishment under the Whipping Act,
1864, which was replaced by a similar Act in 1909 and finally abolished in
1955.
•
Flogging or whipping is being used as a common
mode of punishment in middle-East countries even to this day but the
instruments and methods of flogging, however, different from country to
country. Some of them used straps and whips with a single lash while others
used short pieces of rubber-hose.
•
Experience
has shown that whipping, as a mode of punishment had hardly proved effective.
It did not serve any useful purpose in case of hardened criminals and
recidivists. However, it proved effective in case of minor offenders like eve
teasing, drunkenness, vagrancy etc.
• (2) Mutilation:
•
It
is also a common form of corporal punishment. It was known to have been in
practice in ancient India during Hindu period as well as Moghul period also. In
case of theft, one or both the hands of the offender were chopped off and in
case of sex offence his private part was cut-off.
•
The
justification advanced in support of mutilation was that it served as an
effective measure of deterrence and prevention.
•
This mode of punishment as well has been
completely discarded being barbaric in nature. As observed by Sir samuel
Romilly, such punishments have an inevitable tendency to infuse cruelty
among people.
• (3) Branding:
•
Branding
was a mode of punishment was commonly used in oriental (Eastern Asia) and
Classical (Traditional) societies. Roman Criminal law supported this mode of
punishment and criminals were branded with appropriate mark on their forehead,
so that they could be easily identified and permanently subjected to public
ridicule.
•
In
England, branding was practiced till 1829, when an Act of Parliament finally
abolished it. The system was in vogue in America as well. Particularly,
blasphemy was made punishable with branding the letter “B” on the forehead.
In Indian subcontinent branding was prevalent during the Moghul rule in its
crudest form.
• (4) Chaining:
• Chaining the
offenders together was also commonly used as a mode of punishment. Their
liberty and mobility was thus completely restricted. The hands and legs of
criminals were tied with iron rods and chained together.
• This method is now
being sparingly used in the present prison-system in our country.
• (5) Pillory:
•
Pillory
was yet another form of cruel and barbaric corporal punishment, which was in
practice till early 19th century. This type of punishment was also called
poetic punishment although it was more often used in fiction than in poetry.
•
The
offender was brought in public place for the execution of the sentence. He
could even be publicly stoned if offence was of a serious nature.
•
Pillory is still used as a mode of punishment
in Islamic Countries, which take offences against woman quite seriously.
•
The
system in pillory existed slightly in different form during the Mogul rule in
India. However, this mode of punishment has no place in modern sentencing
policy.
• D. IMPRISONMENT:
•
Imprisonment
presents a most simple and common form of punishment, which is used all around
the world. It is an effective method of incapacitating the offender.
•
Imprisonment
is a kind of punishment, which if properly used, can serve all the three
objects of punishment. It can be deterrent, because it makes an example of the
offender to others. It can be preventive, because it disables the offender, at
least for some times from repeating the offence, and it might, if properly
used, give opportunities for reforming the character of the offender.
• SOLITARY CONFINEMENT:
•
Solitary
confinement is an aggravated kind of punishment. This kind of punishment seeks
to fully exploit the sociable nature of the man, and by denying him the society
of his fellow being, it tries to inflict pain on him.
•
It
has been felt by many criminologists that this kind of punishment is inhuman
and perverse. It is possible that this might convert a man with sound mental
health into a lunatic.
•
If
used in excess, it may inflict permanent harm on the offender. Though in
limited cases, if used in a proper proportion, this kind of punishment may be
useful, yet if those limits are surpassed, it is likely to be unnecessary
cruel.
•
CAPITAL PUNISHMENT
• In the history of
punishment, capital punishment has always occupied a very important place.
• In ancient times, and
even in the middle ages, sentencing offenders to death was a very common kind
of punishment. Even what might be considered as minor offences in modern
criminal law attracted the death penalty in those days.
•
In England, there was a time when there were as many as
200 felonies (serious crime) for which the punishment was the death penalty.
Even the offence of theft of property worth more than two shillings could
attract the death penalty. And even as late as the middle of the seventeenth
century, the penalty for the offence of forgery was death.
•
Then
there began a movement in the eighteenth century, which raised a voice of
protest against the inhuman nature of punishment. BENTHAM may be
considered to be the spearhead of the movement. He analyzed the causes of crime
and showed how punishment was inadequate. According to him—punishment itself
was an evil, but a necessary evil. No punishment was to be inflicted unless it
brought greater good.
• The Australian law
provides death penalty for the offence of murder and rape. The Moghul
rulers in India also made use of death penalty to eliminate unwanted criminals.
They used crudest methods for execution of death sentence. However, with the
British rule in India, these inhuman and barbaric methods of execution were
abolished and death by hanging the only remained mode of inflicting death
sentence.
• The object of capital
punishment can be said to be twofold—
•
Firstly, by putting the offender to death, it may
instill fear in the minds of others and make lesson out of it.
•
Secondly, if the offender is an incorrigible one, by
putting him to death, it prevents the repetition of the crime.
•
But
it is evident that it is not based on the reformative object of punishment; in
a sense, it is a step of despair. There are many arguments for and against
capital punishment.
• ARGUMENS IN FAVOUR OF
CAPITAL PUNISHMENTS:
•
The
Supporters of death sentence mentioned the following arguments to justify the
necessity of capital punishment__
•
It
brings forth the greatest possible justice for society and the victim of
crimes. Punishment must be held in proportion to the crime for justice to be
served. And justice—not humanity—must be cornerstone by which ruthless violent
criminals and murderers shall be judged.
•
It
shows the greatest respect for the ordinary man’s—and especially the victim of
crimes—unchallengeable value. Society acknowledges and exalts the value of the
lives of victims of crime on the most visible way by punishing violent
criminals and murderers with death.
•
It
defends man’s dignity in the strongest way. Man’s—the victim of crimes—dignity
is also determined by the punishment that is imposed against violent criminals
and murders. To treat violent criminals and murderers mildly deprives victim of
crimes of their dignity.
•
It
recognizes man’s natural sense of justice. It has been put down in man that the
most heinous anger must have the most severe punishment. Capital punishment
satisfies that feeling more than any other punishment.
•
It
expresses—more visible than other penalties—sympathy and empathy with all
victims of crime and their relatives. The severity of the death penalty exists
because of love for the victim of crimes. But a more or less mild imprisonment
simply instead reflects empathy for the criminals.
•
It
gives many of us—and especially many victims of crime and their relatives—peace
of mind and brings a more visible closure to the crime.
•
On
the other hand, violent criminals and murderers in prison will always pose an
anxious threat against people and are a constantly open wound which causes
people pain.
•
It
confirms and highly values all ordinary men’s ‘right to life’.
•
On the other hand, heinous violent criminals
and murderers are not embraced by this right and neither are prisoners by the
‘right of freedom’.
•
The
right to life is a ‘human right’ concept which from its beginning approves of
capital punishment.
•
It
effectively stops violent criminals and murderers from committing more crimes.
The brutalizing of society decreases. On
the other hand, imprisonment gives cause to more crimes—in prison, at leave, at
escapes, and after release.
•
It
is the most effective deterrent of violent crime and murder. There are
scientific studies which confirm that. Also, common sense and common judgment
confirms that the threat of death deters considerably more than the threat of
imprisonment.
•
It
creates a little more safety in society for all citizens. When violent
criminals and murderers are gone forever, a more peaceful society will be
created. Imprisonment can never bring about that kind of safety.
•
It
shows that how seriously society looks at the most heinous crimes. Death
penalty reveals the dreadful gravity of a crime in a way no other penalty can.
•
It
is a witness of highest morality and righteousness. The moral evil in the worst
of violent crimes can not be revealed in a more visible way than when such
crimes are punished by death.
•
It
recognizes man’s natural demand for retribution, which is a sound instinct deep
in men’s soul. Retribution is accomplished when the judicial system imposes
stiff penalties in proportion to the cruelty of the crimes. Death penalty
brings about such concept the best, in cases of the most heinous crimes.
•
It
confirms the punishment as such, and does that in a more visible and more
powerful way than any other penalty. And it confirms the simple thesis that
there are criminals which simply deserve death.
•
It
strikes fewer ‘innocent persons’ than alternative penalties. Because among
prisoners and ex-prisoners there are many who relapses into new crimes which
strikes ‘innocent persons’.
•
It
is supported by a wide number of people.
•
It
removes, from an economical viewpoint, the entire offensive elements that are
found today in alternative penalties to capital punishment.
•
On
the other hand, others argue that there may be some offenders, who are not only
incorrigible, but also who are immensely dangerous to the society, and there is
no reason why society should be burdened with maintaining such people. If you
cannot cure, and if this incorrigible element is harmful to human society, why
not quietly remove it?
•
Another
argument in favour of capital punishment is that, it must be noted; punishment
by the State is a substitute for private revenge. If a murderer is not punished
with death, it is quite possible that other relatives of the victim might
murder the murderer, and thus a chain of murders might set in. So long as human
emotions are powerful, and so long the powers of vengeance prevail, capital
punishment, it is argued, is a necessary kind of punishment.
•
ARGUMENTS AGAINST CAPITAL PUNISHMENT:
•
Those
who denounce this kind of punishment argue that capital punishment has not
served its deterrent object at all. For example, in certain States of the
United States of America, where the death penalty has been abolished, there are
fewer serious crimes than in those States where capital punishment is retained.
If capital punishment had the deterrent effect, it is supposed to have, crimes
in the former States ought to have increased, and crimes in the latter States
ought to have decreased. Therefore, it is argued that the statistics do not
prove the deterrent effect of capital punishment. Abolition of capital
punishment has been a recent experiment in England and the immediate results
are indeed encouraging.
•
The
death penalty does not lead to a decreasing number of heinous violent crimes.
Statistics shows that the rate of murder or rape has upward tendency through
death sentence are imposed for these offences.
•
The
punishment may be preventive, but at what cost and with what justification?
Crimes are committed very often, not by normal human beings, and not under
normal circumstances. It is not even certain that a murderer would repeat the
murder again. He might have committed this heinous crime under the most extra-
ordinary circumstances.
•
Professor Henting draws attention to another
salient defect of capital punishment. According to him, no thinking person can
claim that our law of evidence and the law of procedure are foolproof, and
always lead us inevitably to the truth.
•
It
is possible that there are judicial errors, and in such cases capital
punishment is awarded cannot be revoked. Therefore, it is argued that this
punishment is neither effective nor just.
•
Thus,
there have been cases where after execution of an alleged murderer, the true
murderer is caught. But can the mischief be remedied? It is therefore; better
to save nine murderers from capital punishment than inflict it on one man who
may be, in fact innocent.
•
In conclusion, it may be said that though capital punishment
serves some purposes, in the present context, out of respect of human dignity
and possibility of reforming the character of the offenders, an experiment of
abolishing capital punishment might not be a risky attempt.
•
The
countries, which abolished capital punishment, notably, Germany, Austria, The
Netherlands, Denmark and some Latin American States, reported no ill effect of
abolition of death sentence.
•
Capital
punishment has been the most significant among the various forms of punishment
since human civilization.
•
Whether
death penalty should be abolished or not is one of the most debatable legal
issues. In Bangladesh death sentence is permitted for some grievous offences
and the mentality of the people of this society is not yet prepared to abolish
death sentence
•
PENAL CODE PROVIDED DEATH SENTENCE FOR CERTAIN SPECIFIED
OFFENCES, WHICH ARE NOTED BELOW:
•
Waging
war against the government (Sec.121)
•
Abetment
of Mutiny (Sec. 132)
•
Fabrication
of false evidence leading to one’s conviction for capital offence (Sec.194)
•
Murder
(Sec. 302)
•
Murder
by a convict undergoing (Sec.303)
•
Abetment
of suicide of child or insane person (Sec.305)
•
Attempt
to murder by a life convict (Sec.307)
•
Docoity
with murder (Sec.396
• In addition to Penal
Code, 1860 other laws like Special Powers Act, 1974; Nari-O-Shishu
Nirjatan Damon Ain, 2000 etc, also have the provision of capital
punishment. The offences are—
• Women trafficking
• Child trafficking
• Ransom
• Death in consequence
of Rape
• Death in consequence
of Dowry
• Sabotage
• CAPITAL PUNISHMENT
& INTERNATIONAL COMMUNITY
•
The United Nations introduced a resolution during the
General Assembly’s 62nd session calling for a universal ban of death sentence.
•
The
approval of a draft resolution by the Assembly’s third committee, which deals
with human rights issues, voted 99 to 52, with 33 abstentions, in favor of the
resolution on November 15, 2007 and was put to a vote in the General Assembly
on December 18.
•
It
passed a non-binding resolution (by a 104 to 54 vote, with 29 abstentions) by
asking its member States for “a moratorium on executions with a view to
abolishing the death penalty”.
•
A
number of regional conventions prohibit the death penalty, most notably, the
Sixth Protocol (abolition in time of peace) and the Thirteen Protocol
(abolition in all circumstances) to the European Convention of Human Rights.
•
Most relevant operative international treaties
do not require its prohibition for cases of serious crime, most notably, the
International Convention on Civil and Political Rights.
•
This
instead has, in common with several other treaties, an optional protocol
prohibiting capital punishment and promoting its wider abolition
• Several International
Organizations have made the abolition of the death penalty (during time of
peace) a requirement of membership, most notably the European Union (EU) and
the Council of Europe. Among non-governmental organizations, Amnesty
International and Human Rights Watch are noted for their opposition to capital
punishment.
