Law Analysis
Legal analysis on deathpenalty
Arpeeta Shams Mizan
“Death cases are indeed different in kind from all other litigation. The penalty, once imposed, is irrevocable", Justice John Paul Stevens.
For most of the world's history, death penalty was, and has been, used as a punishment for crime, with little thought given to its legitimacy or justification, until recently. It was simply accepted as an efficient mechanism for dealing with criminal offenders. From the earliest days of colonization in the Indian subcontinent, capital punishment was considered neither cruel nor inhuman nor unusual.
The death penalty historically was not peculiar to the British rulers in the Indo Pak Bengal Subcontinent. It had been recognized from the Vedik throughout the Hindu and Muslim Periods. The Mahabharata and the Ramayana contain certain references of punishment by Vadhadanda which meant amputation by bits. According to Manu, in order to refrain people from sinful acts, death penalty was necessary. In the absence of such penalty, the state of anarchy will prevail and people would devour each other as the fish in the water, the stronger eating the weaker , known as the Matsanyaya.
Death penalty in murder cases were inspired by the Babylonian Code of Hammurabi ( eye for an eye). But the Penal Code 1860 for the first time codified this sentence as a legislative i.e. judicial procedure.
Colonial Mindset of the Drafters and the historical background: The Penal code first was codified and drafted in the year 1860 by the British legal minds under the chairmanship of Lord Macaulay. It is to be borne in mind that the period of this codification followed the previous period of great upsurge of the Sepoy Mutiny of 1858 followed by queen Victoria's taking direct control over the domain. This mutiny for the first time made the colonial rulers conscious of the fact that a stronger well equipped iron hand and similarly strong and sound legal instruments are necessary to control the sub continental colonies.
This historical background is well reflected in the sections of the penal code. Capital punishment in this code(original) can be found only in the cases of high treason, state mutiny and other grievous crimes. Prevention of crime is the foremost jurisprudential aspect of Penology , while other sections concerning offences against the state were the reminders of the capital punishment awarded to Khudiram, Mongol Pandey as well as the trio of Badol, Binoy and Dinesh. On the other hand, similarly Section 396 dealing with Dacoity, murder might have been inspired by the looting of Chittagong arsenal by Masterda Surjo Sen .
Jurisprudential aspect of the death penalty within the purview of the PC 1860:
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Death is the highest form of punishment authorized by Bangladeshi Law. When a person is sentenced to death, the sentence shall direct that “he be hanged by the neck till he is dead.” In Bangladesh, only the High Court Division, the Courts of the Sessions Judge or the Additional Sessions Judge may pass a death sentence. However, any death penalty passed by the sessions judge court or additional sessions judge court is subject to confirmation by the High Court division(Section 368, Code of Criminal Procedure, 1898). This whole concept of death penalty in today's world requires a close scrutiny under the shade of contemporary practices in other countries.
In S v Makwanyane (1995 (3), SA 391 (CC)), the South African Court held that the constitutional right to life and dignity is the most important of all human rights, and also is the source of all other rights. The Hungarian Court (Decision 23/1990 (X31) AB) also has cited that it is of absolute nature. Langa J. stated that state must demonstrate society's own regard for human life by refusing to destroy the life of the criminals. The African concept of Ubuntu also upholds that the life of another person is at least as valuable as one's own.But under the Bangladesh Constitution and other International Instruments such as ICCPR and European Convention on Human Rights, right to life has been qualified , providing that the right may not be deprived arbitrarily or other than in accordance with a sentence of the court ( the Penal Code in this case). For instance, it has been held in the same case that:“Self defence is recognized by all the legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor……”. If we focus on the sections of the Penal Code 1860 which propound for death penalty, then we might find out the intrinsic jurisprudential and theoretical philosophy.
Sections 121 and 132 pose a deterrent effect in respect of offences against the state. The most notable section is 302 providing punishment for murder and culpable homicide. It is thus evidently clear that a heavy duty cast by sec 302 of the PC on the judge, of choosing between death and imprisonment for life for the person found guilty of murder, is now expected to be discharged in a highly responsible manner by the provisions of the CrPC so that the principle of natural justice and fair play holds its sway in the sphere of sentencing. It also helps the judge to individualize sentencing justice and make it befitting to the crime and the criminal. Another exclusive section is section 303 providing punishment for a person already convicted with death penalty. The provisions of this section require overview. It is a common rule of administration of criminal justice that while giving the judgment of certain offences, all other external and psychological factors affecting and causing the commission must be taken into consideration. The law mentions that gravity of offence is supposed to be lessened if there is any provocation (whether sudden and grave or not) which leads the offender towards committing the offence, the amount of punishment is generally never the maximum. It is to be mentioned that every other section of PC contain plurality of sentences ranging from a minimum to a maximum except section 302. Thus giving solitary definite punishment that also in the extreme from violates natural justice and also human rights. in that sense it is also unconstitutional. Thus the section overlooks the other extenuating, motivating /contributing factors. The legislators could have provided for two consecutive terms of life imprisonment rather than the irreversible sentence of death.
This is the first part of a story. Check next issue for concluding part.
The writer is a street Lawyer & student of Law, University of Dhaka.
