value in our largest democratic country”.
In the view of above mentioned judgments it can be said that judiciary is moving towards discarding
retributive theory of punishment and adopting reformative theory of punishment. It is contended that
commutation of sentences is an attempt to give human touch to criminal law and is based upon Reformative
theory of punishment. Earlier, the SC in the case of Narotam Singh Vs State of Punjab had observed that, “The
reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation
without offending communal conscience and to secure social justice.”
Therefore, legislative and judicial inclination towards reformative approach is apparent from above discussion.
It is indeed an important approach and has been appreciated by human right activists. However I think that
this approach is not useful in present day scenario when increased crime rate has reached at alarming level. At
this juncture, commutation of death sentences following the reformative theory is giving a message that a
wrong doer is safe in the hands of so called welfare state. According to Jeremy Bentham punishment is evil in
I.
Provisions relating to commutation are adding towards
removing fear from the mind of a wrong doer. Since punishment is the redress
taken against the offender, non-punishment of offender is injustice to lawabiding people. Therefore deterrence theory propounded by Jeremy Bentham is
required at this stage.
II.
I agree with the view of the court taken in the case of State of
Punjab Vs Rakesh Kumar that, “Undue sympathy to impose inadequate
punishment would do more harm to the justice system that undermines the
public confidence in the efficacy of the law”.
III.
Since the inflicted punishment is proportionate to the crime,
commutation is unjust.
IV.
Our criminal justice already grants exemptions to persons of
unsound mind and act caused by grave and sudden provocation. There is no
logic behind granting exemption for voluntary acts.
V.
Commutation of death sentences is like avoiding people’s
hunger for justice and there is possibility of erupting public outrage.
It is significant to note here that there are many instances when public revolted
for giving harsher punishment to accused as happened in Nirbhya case and
Jessica Lal Murder case. These incidents show that if people’s hunger for justice
is not honoured, the society will not honour the criminal law.
According to Hart, “Sanctions are therefore required not as the normal motive
for obedience, but as guarantee that those who would voluntarily obey shall
not be scarified to those who would not. To obey without this, would be to risk
going to wall.”
Reduction or prevention of crime is the ultimate object of punishment.
Punishment causes fear and fear is an essential ingredient for avoiding crime.
Therefore, death sentences should not be commuted, because commutation
removes the element of fear.