by Sidhanta Sarkar
The death penalty which is also known as “Capital punishment.” In criminal law though, in ancient times a number of ways were present to punish an accused with reference to the nature of his crime against the society. Such punishment was considered based on the nature of criminality presence in an act of the accused. In ancient Indian epics like; the Mahabharata and the Ramayana have also considered the death penalty which was known as “vadhadand” which meant ‘amputation by bits’ which classified into fourteen modes. While in furtherance of retention of the death penalty, King Dyumatsena observed that “if the offenders were leniently let off, crimes were bound to multiply.” In his statement, he explained that the execution of unwanted criminals was perfectly justified in the existing society. As in the same manner the great eminent law-giver Manu also stated: “that in order to refrain the people to indulge in any criminal activity fear as an essential mode for which death penalty was necessary in the society”. He further stated that in the absence of this mode of punishment the weaker would not be able to survive in the society. The concept of the death penalty was only effective in an ancient period but also has the same status in the reign of Mughals rule in India where the death penalty was not executed in a simple manner. Each and every accused person was bound to suffer and also to bear the pain until his death. Mode of the death penalty by way of nailing the body of the accused on walls was common which was abolished later in the British system of criminal justice. Thereinafter, only the mode of the death penalty by way of hanging has remained and which is yet, continuously followed by the Indian criminal justice administration. Being a way to deter offenders, it also enshrined in Section 54 of the Indian Penal Code (45 of 1860) which mentioned the death penalty as a way of punishment to refrain criminals.
Death penalty since ancient time considered as an effective weapon of refraining the people to indulge in any heinous criminal activities which may affect their life or through them in the well of death. Since that period this mode of punishment is also considered as an effective measure of retributive justice. In furtherance of the justification of the death penalty, it is to be said that this is a lawful measure to punish an offender who already takes away the life of another person. It is to be said by a scholar that “a person who kills another must be eliminated from the society and therefore his execution is justified.”
The death penalty though one hand has a retributive effect but on the other hand, it also has a deterrent effect which mainly deters the offenders to indulge in most heinous crimes. Its deterrent effect can be the best way by which perhaps, offenders keep themselves away from the criminality. If they are made aware of this and make such fear in their mind than in a positive way there can be a reduction of the incidences of homicide in the existing society. But in present, the method of public hanging in the early days is prohibited in respect of present laws in our country because of the extension of the human rights regime.
In our country, there shall be retention of the death penalty because in the present era there is no substitute for the death penalty which may play a similar role towards punishing the criminals convicted in heinous criminal activities. In India, there are several people as well as some communities raising their voice to abolish the death penalty but there is no substitution or alternate of death sentence which may prevent the criminals to commit those offenses which may be punished with a death penalty as a mode of punishment. If in India, the death penalty would be abolished than in those cases the amount of criminality or criminals or rate of the offenses would increase as the time passes. Therefore, it is not quite possible to abolish death sentence as a mode of punishment mentioned in the Indian Penal Code, 1860. Because if someone wants to harvest crops from the fields, then he has to decide before what substitute he will plant. Similar is in case of the death penalty if there is a need to change the mode of punishment which already exists in the present society or also enshrined in the codified laws than a further step should be there for deterrence of the criminal minds and their behaviors towards the particular community or society at large. Though, as per the opinions of some of the people belonging to the society support the idea that in more than hundred countries death penalty has been abolished, then they should be remember that we cannot change anything with only seeing particular actions instead of this we should rely upon the circumstances of those countries where it has been abolished. The judicial actions taken and policies revised are not only based on present circumstances but also on past events which lead to historic commitments in a country hence, it is rightly said that: ‘future may be based on past’. If we want to cut the tree then we are required to analyze its roots to cut out them, similar is the case if we want to abolish the death penalty. Therefore, death penalty should be retained in India and those laws which are existing in present society shall be enforced. For the prevention of criminal activities or the rise of criminals or heinous crimes, we can say that such laws need to have some enforcement among the people as well as society at large in India.