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Shikha Patel

Justice Iyer observes that “ In any scientific system which turns the focus, at the sentencing stage, not only on the crime, but also the criminal and seeks to personalize the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of social and personal nature, sometimes altogether irrelevant , if not, injurious at the stage of the fixing the guilt, may have to be brought to the notice of the court when actual sentence is determined.”Nevertheless, the punishment remains as the most counterpart of crime. Punishment is an expression of the society’s disapproval of the acts and its magnitude decide punishment. Although the word “punishment” is used in varying contexts, it is generally accepted that it is served out unpleasantly to an individual in hopes that the person learns from the punishment and, therefore, doesn’t repeat the bad deed. The supreme court of India has not relied or based its sentencing or rather interference in sentencing on any specific theory of the punishment.

Capital punishment is one of the type of punishment given if the case falls in the domain rarest of rare cases. Capital punishment is given for horrendous crime. It is necessary to change an offender into a non offender. The goal is reformation not retribution. Appreciable thought of Mahatma Gandhi tells that if the principle of ‘an eye for an eye’ prevails then there will two blind persons at last. But, this principle is repudiated by the classical jurisprudence and sanction impose by the law. The view of Justice Iyer in E. Anamma v State of Andhra Pardesh was a earmark for beginning of the reformative theory of punishment.

In Jagmohan v State of U.P. capital punishment is not held to be unreasonable. Code of Criminal procedure, 1978 has made life imprisonment for murder a rule and death sentence an exception. But in Bachan singh v State of Punjab Constitutional bench upheld the validity of the death sentence but the aggravating as well as mitigating circumstance & motivating factor need to be considered determining the sentence under sec. 302 the Supreme Court evolved the dictum of rarest of rare cases for imposing death sentence and further justification was outlined in five categories.


“I have always found that mercy bears richer fruits than strict justice.”

-Abraham Lincoln, 16th U.S President .

Without such a power of clemency, to be exercised by some functionary of the government, a country would be most imperfect and deficient in its political morality. With this view, our Indian constitution had given space for clemency which can be granted by the executive. Under section 415, 416, 417 of CrPC states grounds ground for postponement of execution sentence of death in case of appeal. But there is no underlined rule nor any guiding principle to govern the mercy petition. Consequently it leads to delay.

It envisaged that the convict is awarded death sentence for his crime, when it falls in the ambit of Rarest of rare cases. Instead of executing the death sentence the accuse has been put behind the bar years together for deciding the Mercy petition and delaying the execution of the sentence. Therefore, undergoing many years in imprisonment after confirmation of death sentence it would amount to dual punishment because firstly the convict had undergone many years of his life in prison and thereafter he would be face the mirror of his death by judicial hanging, which is contrary to provision of constitution and criminal jurisprudence.

The common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. The accuse is protected under Art. 20 (b) for double jeopardy whereas there is no law restraining dual punishment which the convict countenanced for postponement in execution of death penalty.

Speedy trial hold the key to the success of any sentencing policy. The Apex Court had declared in A. R Antulay v R. S. Nayak that the right to speedy trial is a part of fundamental right to life and personal liberty guaranteed by Art. 21 of the constitution. It is settled law that inordinate delay in the trial and further proceeding by the way of appeals or revision itself is a mitigating factor justifying a lesser sentence. Postponement in carrying out death sentence is result of undue time taken by the executives i.e. the President empower under Art. 71 & Governor under Art. 161 of the constitution for granting mercy petition. Apparently, it end up only affecting the convict neither the death sentence is executed nor is relived from threat of capital punishment thus he stands at middle of cross road with hope to live though wrongfully bearing confinement and is at ambiguous situation.

In deciding the mercy petition there exist many impediments which conclude in taking so much time which is concurrent to the minimum punishment prescribed for the offense. And many a time due to political intervention delay is subsequent into not only days but years together. A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts.

As per convention of Universal declaration of human right. Art. 3 & 5 affirms that no one should be inflicted with the cruel, inhuman or degrading treatment or punishment. Everyone has the right to liberty & security of person. Referring to violation of human right by the state law enforcing agencies the court is of the view that these acts were breach of humanitarian law and as well as total negation of constitutional guarantee & human decency.

Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the Executive needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism.

Death Sentence is deterrent type of punishment. The main object of awarding capital punishment is to create fear in the mind of other offenders and restraining reoccurrence of such a grave offense. As a result of delay in execution for several year, the effectiveness of creating threat among society is not fulfilled which may be achieved by immediate execution. Pertinently delay results in ineffective and the change of circumstance may not warrant for such a grave punishment after years. Thus, Capital punishment may not be required.

One of the pivotal object of capital punishment is deterrent in nature if it executed within short time after commission of offense. While undergoing the imprisonment its needless to presume that the convict had not gone under any reform in his life therefore there can be change in his criminal mensrea or might have wiped out misdeed and he is not the same person as he was at the time of commission of offense. While deciding Mercy petition his current state of mind is requisite to be considered. For example, Great sage Valmiki who was once upon a time was a great dacoit but with passage of time it was evidential that he became great sage. No strait jacket formula should be applied for execution rather evaluation of convict current status must be looked upon.

Appeals of such type of cases ought to have been decided in the limit bound schedule so as sentence does not lose its effectiveness and potentiality & to meet with the object of punishment. There is lacuna in time bound program for deciding such mercy petition& standard operating procedure (SOP).

The vast majority of countries in Western Europe, North America and South America–more than 95 nations worldwide, have abandoned capital punishment. Countries has adopted policy of with regards to United Nation declaration of Human rights which give due respect to human dignity and there are many more initiative taken by UN thus to preserve the human value. Therefore, India can abandon the Capital punishment inspite of losing the virtue of capital punishment by delaying it.

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