From the beginning of 20th Century, several criminologists, penologists, sociologists, jurists, politicians, etc., started reformative thinking, and began to argue against the capital punishment. They fundamentally concentrated to bring several radical changes in the present criminal justice system, and the mode of punishment.
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They began to argue that the crime is a disease, and the germs of such disease are within the society, and first those germs should be eradicated. For the faults of the society, the law should not blame the criminal.
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Gandhiji was the foremost proposer to abolish the capital punishment. He preached Ahimsa He pleaded: “Hate sin, but not the sinner.”
The advocates against capital punishment submit the counter arguments as follows:
1. Capital punishment cannot deter the criminals and people:
The supporters for abolishment of capital punishment argue that by imposing capital punishment, neither the public nor criminals do not fear to commit the crimes.
They show several examples in the human history. Upto the 18th and 19th centuries, capital punishments on the criminals were executed as “Public Functions” in all of the countries.
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The people used to attend such hanging functions in huge crowds, just like to pictures, or marriages. In 1864, the newspaper reported news on a Hanging Function, to which several thousand attended to witness the capital punishment of one criminal.
Heavy crowd gathered there with enthusiasm and anxiety. About 100 persons died due to stampede and fights. While the hanging ceremony was being conducted, a twenty years young man did sodomy with a forty years aged woman, who was so enraptured by the scene that she did not notice what the young man was doing for a long time.
During the period of freedom for independence, several Indians, such as Veer Savarkar, Bhagat Singh, etc., were sentenced to death. Did the capital sentences, penal servitudes, life imprisonments, torture, etc., on such freedom fighters stop the freedom fighting?
The supporters against capital punishment illustrate such examples, and point out that if the capital punishment is able to deter the people and criminals from doing offences, why are such offences repeated in the society. Therefore, capital punishment failed to deter the criminals and people.
2. Social need:
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Indeed, a damaged limb is operated from the body of a person by the doctors to save the remaining body. In some of the occasions, certain artificial limbs, or limbs from other persons can also be transplanted to save the patient. Even then, in several circumstances, the patient dies. Are the doctors responsible for his death? No, not at all.
In the same manner, a criminal can be transplanted from criminal behaviour to law-abiding citizen, by adopting reformative and psycho-therapy methods. It is also social need to convert him into a good citizen. Because primarily the society itself is the prime centre for offences.
There are germs of crimes in the society itself. Hence first such germs of disease should be eradicated from the society. We cannot blame a single culprit for the fault of entire society. If we hang one or ten persons a day, hundred persons begin to do criminal acts. To what extent and how many persons can be hanged?
3. Not economic saving:
Capital punishment cannot save any public money. By killing a person, who is a gift of the God, we determine him from the earth and say that it is an economic saving to public money. It is ridiculous opinion. One cannot calculate the value of human being gifted by nature and god.
Even if we calculate the expenses on a convict for imprisonment for life and a convict put to capital punishment, the expenses on a convict put to capital punishment are seen higher than a convict for imprisonment for life, because the convict for imprisonment for life does hard labour in prison and earns sweat-money for the State.
If he is released after 14 years or after some years, for the remaining period of his life also works and earns something. Hence imposing imprisonment in place of capital punishment is an economic factor to the society.
4. Capital punishment is inhumane and barbarism:
It is ridiculous argument that by killing a criminal with less pains and sufferings is humanitarian thing. This argument is not having any credibility. The lions in a zoo are not dangerous to men. They do not harm even to children.
Similarly, the hardened criminals, who are kept in prisons for years together, loose their temper, anger, cruelty, sadism, etc. The prison life changes him into a chastened person. There are several chances to cause repentance in his mind.
There are empirical examples, which show that ninety per cent of prisoners repent for their acts done previously. In most of the occasions, the criminal acts are done automatically, spontaneously and in an angry and temper moment, due to exchange of words, etc.
There are several cases of killings pre-planned. Those are too caused by the ill-treatment of the deceased against the criminals. They too repent and regret for the past criminal acts. If a criminal is put to death, and is thrown into sky, there are no chances for getting repentance.
There are few persons, who may commit heinous criminal acts, due to the psycho reasons. Psycho-analysts opine that such people have mental abnormality. That means they are mental patients. Such patients must be appropriately treated.
5. Law is not definitive but changes:
Law changes from time to time depending upon the circumstances. Upto the end of the 18th century, there was slavery system in entire world. However, in the 20th century it was abolished.
There was a great honour to Sati before Lord Bentinck time. Lord Bentinck abolished it, and made it as offence, and the persons who abet to do Sati were severely punished. Now almost all areas of India forgot sati system.
Example:
Section 121 of the Indian Penal Code states about waging war against the Indian Government, and the punishment is death sentence. Under this Section, the then British Government imposed death sentences on several thousands of Indian people, including Bhagat Singh.
Before independence, the Britishers harassed, exploited and punished Indian people for the simple reason that the poor Indians were unable to pay land revenue. The Britishers exploited entire money, gold, diamonds, including Kohinoor diamond to their country.
If any Indian questioned, such Indian was put in prison or put to capital punishment. After independence, the persons who agitated against the then British Government had become Heroes of the Nation. Similarly, Nelson Mandela was put in prison for 27 years under the White Government.
After release, he has become the President of his country. During the White Rule, the Black were suffered, harassed, imprisoned, put to capital punishment for the simple reasons that the Black entered into White colony, or Black teased a girl of White. Now the position has been changed. Now the Black are questioning the very existence of the White in their native country. Can we say that the law is not changeable and definitive? No, not at all.
6. Moral values:
The morality and ethics are not transferred from parent to his children. They are taught to the children from family to college level, and in the society. If any person does not possess good morals, it means that he is not properly and correctly taught such morals by his parents, teachers, colleagues, co-citizens, etc. It means the defects are within the society. There are several economic, psycho, physical, social, political, etc., causes and reasons for a person changed into a criminal.
In majority of the cases, the root causes for criminal behaviour are within the society. When the society itself is out of order, then why should it blame a person turned into criminal for several reasons? Therefore, by abolishing capital punishment, the delinquents must be reformed, and at the same time, the society also should be overhauled.
7. Not selective:
The supporters of capital punishment argue that capital punishment is selective. The supporters for abolishment condemn that no criminal justice system is selective upto now. There are several defects in the procedures and rules. There are several defects in the society.
The poor and innocent accused is unable to defend himself from the prosecution and Courts. Whereas a highly rich and influential person can commit any criminal act and can safely escape from prosecution by bribing or goondaism or political influence. He can purchase the witnesses, advocates, etc.
If any witness dares to give evidence against him, he can kill or harass his family members. Thus such witnesses become hostile. Then what is the use of selective procedure of law? Is there any selective procedure in India, where there are 70 M.Ps. recorded as accused in several criminal cases?
8. Grave injustice may be caused:
Grave injustice may be caused to innocent and poor persons alleged as criminals by the criminal justice system. Capital punishment determines a person from the world permanently. There are no chances for getting him back. There may be judicial errors in imposing capital punishment on an innocent.
The rich, political and influential people can escape from the Courts by investing huge amounts on witnesses, police, and advocates. Where is the way to a poor person?
The statistics say that majority of the prisoners belong to poor only Because the rich, higher class people know the loop-holes of the laws, Courts, police and can escape by spreading their money. A poor innocent suffers death sentence due to lack of money.
In fact, there are manipulation, manoeuvre in the police department and also played tricks in proceedings before the Courts. All these are a part of competitive game between the Advocates, but not depend upon the heinous and brutality of the case.
There are several incidents occurred in the world legal history that innocents were put to capital punishment, and after their death the real criminals were caught by the police accidentally. Meanwhile, the innocents were put to death sentence. Who is responsible for the execution of death sentence on a poor and innocent person?
Hunting, criminologist observes:
“Death penalty is a socially insufficient means of punishment to which must be added the possibility of judicial error, which one cannot exclude.”
9. Rarest of rare:
It is argued by the supporters of capital punishment that it is imposed in rarest of rare cases. The supporters of abolition argue that Bhagat Singh, Alluri Seetarama Raju, etc., are also rarest of rare people. The great leaders fought for their people were put to capital punishment.
Subhash Chandra Bose was declared as a terrorist and an offender of waging war against the British Government. He escaped three times from the British Government. If he could not escape, the then British Government could have hanged or shoot him.
Rajendra Prasad vs. State of U.P. (AIR 1979 SC 916)
Introduction:
There were three appeals filed before the Supreme Court by three different appellants, (i) Rajendra Prasad vs. State of U.P. (Crl. Appeal No. 512 of 1978); (ii) Kunju Janardhanan vs. State of Kerala (Crl. Appeal No. 511 of 1978); (iii) Shiv Shanker Dubey vs. State of U.P. (Crl. Appeal No. 513 of 1978).
The Supreme Court consolidated these three appeals and considered the question of law pertaining to Sec. 302. In these three appeals, the appellants were sentenced to death under Sec. 302 by the three different Sessions Judges, and their appeals to the respective High Courts were totally dismissed. The three appellant’s challenged the validity of Section 302.
Brief Facts:
There were longstanding family feud for years together between the accused/appellant Rajendra Prasad’s family and Ram Bharosey’s family. Both of the groups burnt the houses of the opposite party. Wife of Pyarelal (father of the accused) was kidnapped by Ram Bharosey.
Annoyed with this Rajendra Prasad murdered the brother of Ram Bharosey. He was sentenced to life Re imprisonment. Rajendra Prasad was a young man at the time of the conviction. Serving in the prison for some years Rajendra Prasad was released on Gandhi Jayanthi day.
The prison life did not change and reform the accused/appellant. Within a short period of his release Rajendra Prasad stabbed Ram Bharosey and his friend Mansukh.
Mansukh died. The Session Court convicted Rajendra Prasad with death sentence keeping in view the desperate character and repeated murders. On appeal the High Court confirmed the death sentence. More or less the facts of the other two criminal appeals were similar to that of Rajendra Prasad.
Judgment:
The Supreme Court by majority commuted the death sentence to imprisonment for life for all the three appellants.
10. Recidivists:
In case of a habitual offender, who had murdered his friend, and was punished with life imprisonment. He was released on parole, and during the parole, he murdered his own father.
Is such person entitled to be pardoned? Darrow, criminologist, strongly supports capital sentence. He argues that there must be capital punishment as long as there are punishments under criminal justice system.
There are certain cruel criminals, viz., Jack the ripper, Boston strangler, etc., who murdered several women, and were having the habit of sucking the blood of luscious women, pumped air into female bodies and thus caused their bodies burst, etc.
Darrow opines that such cruel and sadist criminals are not deserved to live on the earth, and such persons deserve not only to die but should suffer while dying. Plato, the famous Greek Philosopher wrote: “If a man cannot be harmless other-wise than in sleep, it is better for him to die than live.”
11. Political grudges:
Due to political grudges, religious feelings, on several occasions, several lakhs of people were imposed to capital punishment.
Example:
In Germany during the reign of Hitler, the Courts imposed capital punishments on lakhs of Jews, and it was supported by the German people, in those days under the hypnotism of Hitler’s power and preaching’s of German Nationalism.
In the similar way, the Britishers legally killed several thousands of Indian freedom fighters under the veil of “capital punishment” and tortured under “Penal Servitude”.
In the same way, during the reign of Nizam, the then Courts imposed capital punishments on several thousands of Hindus who asked equality, freedom, and finally at the time of freedom of India to merge Nizam State into Indian Territory.
How can the supporters of capital punishment support all these brutal and inhumane political murders under the veil of legally imposed capital punishments?
12. Reforms:
The supporters of abolition of capital punishment argue that the germs of the crime- disease are within the society, viz., socio, economic, physical, mental causes, etc. If these germs are removed from the society, no person can turn into offender.
For this purpose, the people, society and State should provide all kinds of reformative means to the criminals. The system of present punishment should be reformed. The society first is overhauled. All the defects in the society shall be eradicated.
The weak minded persons shall be treated psychologically under the supervision of the efficient professionals, doctors, etc. Good education, training in any technical profession shall be provided to a prisoner. After his release, he must get self-employment, and should behave as a law-abiding citizen, and can be helpful to the society in his remaining life.
13. Unpunished criminals:
It is an admitted principle that the Courts impose capital punishments to a few criminals in the rarest of rare cases However; it is also true that there are ten fold criminals, viz., killers, mafia groups, rapists, sadists, etc., in the society, who are not detected nor caught by the police for several reasons.
Those criminals are still doing their illegal activities. The harm to the society has already been done by such criminals. There will be no new or added harm to the society, just by converting the capital punishment to the imprisonment for life for those who are convicted by the Courts.
14. Victimology:
The present criminal justice system is unable to prevent the offences. It could not be helpful to the society in establishing peace. Further it also does not help the real victims of the criminals.
The police and courts concentrate on punishing the criminals only. But what is the position of the victims and their family members? What remedies are available to them?
Examples:
(a) A-a person rapes B, the Court punishes A. (b) X kills Z. Court punishes X. What is the remedy available to B or Z’s wife and children? As the bread-earner-Z was murdered by X, Z’s family comes on the road. The Government, police or Courts do not provide any financial help, livelihood, etc., to Z’s family or B.
The supporters of abolition say that instead of imposing capital punishments on X or A in the above cases, it is suggestible to put them in the imprisonment, and to order them to work hard, and the amount earned by A and X during their life time, or during the imprisonment life shall be ordered to pay their earnings to B and Z- the victim or victim’s family members.
This is the correct and appropriate measure to deter the people from committing the crimes. It prevents recidivism, personal revenge, and criminal behaviour in the society. It also helps to the victims financially.
Conclusion:
Indeed, capital punishment is one of the travesties of the administration of criminal justice in modern times. The modern penologists, sociologists, reformists, Gandhians, psychoanalysts, etc., strongly urge for the abolition of capital punishment, and also to reduce the rigidity of other punishments. They also place tremendous humanitarian grounds too.
However, the majorities of jurists, jurisprudents, penologists, victimologists, etc., strongly condemn it and strongly argue that it is not possible at this junction to abolish the capital punishment.
They admit that the causes for the crimes are within the society, and it is also possible to reduce the criminal behaviour in the society by psycho-therapy.
However, there is a high gap in between hope and practicability. In the present structure of the world, globalization, privatization and its economy, it is highly impossible to reform every criminal, and particularly the habitual offenders and recidivists by psycho-therapy and social reforms.
Poverty, scarcity of food, unemployment, illiteracy, orthodox and religious beliefs, etc., are spread in the world. First of all, these must be eradicated from the world. Then psycho-therapy treatment can be afforded to all the mentally disturbed persons.
For this purpose huge amounts are required. No doubt to say that all the countries, including India, are incurring crores of rupees, and their major earnings towards the armament and defence of their countries.
If the political parties pay attention to develop their people by the positive ways, policies and means, all the defects and economic troubles will be wiped out from the Globe. Each country looks other country as its enemy, and improves its army and armament. But does not pay attention on its own people.
For example, India and Pakistan did three wars, and again they are preparing for another war, by allotting huge amounts towards the defence. They are also now equipped with nuclear weapons.
At the same time, Governments in both the countries barely neglected their people. Hence the poverty remained as it is even after 60 years independence. Illiteracy, poverty, orthodox religious beliefs, atrocities on women, unemployment, irregular urbanization and industrialization, etc., are spread in both the countries, and are causes for the spreading of crimes.
Without removing all these defects, no Wiseman can expect the peace and prosperity in the society. This is the condition of poor countries.
The criminal rate is higher in developed and well educated countries, such as America, Canada, Britain, France, etc., than developing countries. What are the reasons and defects for increasing criminality in those countries, even though they are rich and well educated? Even’ in communist countries, including China, where it is propagated that socialism is achieved, the criminal rate is not decreased. More capital punishments are implemented in China (17 per day) than in India.
The reason is human tendency. Every man is selfish. That is explained by Jeremy Taylor: “A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them.”
Man is selfish and cruel by nature. His ravish nature must be controlled by the State. The so- called humanitarian arguments in favour of abolition of capital punishment are good to hear, but not in practice. It is true that Veerappan was made as a forest smuggler by the society itself.
It is also true that he killed 137 Government servants and civilians. Karnataka and Tamilnadu Governments tried to arrest him for the two and half decades, but failed. At last, he was shot dead by the Tamil Nadu police after two and half decades of searching.
Was Veerappan entitled for excuse? Can he be reformed? Is it possible to the Government to spare huge amounts for the psycho-therapic treatment for every criminal, including Veerappan? Is it possible to the Society to welcome all the sadist, brutal killers, blood suckers, sex-maniacs, perverts, abnormal persons, smugglers, mafia leaders, etc.? Can the society absorb them? No, not at all. In the present circumstances, it is not possible.
In the ancient times, the criminals were not regarded as human beings. They were treated as slaves.
They were physically and mentally punished heavily for the smallest offences. There were 15 or more kinds of death punishments; those too were executed very violently and brutally in public places.
Nowadays, in all the countries, the death punishments are imposed in rarest of rare cases. Out of 15 kinds of death punishments, only two or three, viz., shooting, electric chair, hanging, etc., are used.
Comparing with the cruelty and harassment did by the criminal on a weak woman; child or person, the punishment on that culprit is very painless. We can hope at least in the next century these three kinds of capital punishments may also eliminate from the globe.
There is high expectation in social, economical and technical changes through out the world. Thus suitable arrangements for the safety and protection for all the people may be possible,
This is only expectation and imagination. However, until then, the capital punishments should be continued. There is no other way for present human civilization until a suitable solution is discovered Fu to prevent the crimes in the society, the capital punishments should continue.
It is the duty of the criminologists, sociologists, psycho-analysts to search the new ways, methods, procedures, laws, policies, etc., to eradicate the crimes and to reduce the rigidity of punishments on criminals and at the same time to search the remedies for victims suffered by such criminals.