THE CITIZEN’S CHARTER:INDIAN EXPERIENCE Basic

THE CITIZEN’S CHARTER:INDIAN EXPERIENCE

Basic Concept, Origin and Principles

It has been recognised world over that good governance is essential for sustainable development, both economic and social.  The three essential aspects emphasised in good governance are transparency, accountability and responsiveness of the administration.  “Citizens’ Charters” initiative is a response to the quest for solving the problems which a citizen encounters, day in and day out, while dealing with the organisations providing public services.

The concept of Citizens’ Charter enshrines the trust between the service provider and its users.  The concept was first articulated and implemented in the United Kingdom by the Conservative Government of John Major in 1991 as a national programme with a simple aim: to continuously improve the quality of public services for the people of the country so that these services respond to the needs and wishes of the users.  The programme was re-launched in 1998 by the Labour Government of Tony Blair which rechristened it “Services First”.

The basic objective of the Citizens’ Charter is to empower the citizen in relation to public service delivery. Six principles of the Citizens’ Charter movement as originally framed, were: (i) Quality : Improving the quality of services; (ii) Choice : Wherever possible; (iii) Standards :Specify what to expect and how to act if standards are not met; (iv) Value: For the taxpayers’ money;    (v) Accountability : Individuals and Organisations; and  (vi) Transparency : Rules/ Procedures/ Schemes/Grievances. These were later elaborated by the Labour Government as following nine principles of Service Delivery (1998) :-

·         Set standards of service

·         Be open and provide full information

·         Consult and involve

·         Encourage access and the promotion of choice

·         Treat all fairly

·         Put things right when they go wrong

·         Use resources effectively

·         Innovate and improve

·         Work with other providers.

  

The International Scene

The UK’s Citizens’ Charter initiative aroused considerable interest around the world and several countries implemented similar programmes e.g. Australia (Service Charter, 1997), Belgium (Public Service Users’ Charter 1992), Canada (Service Standards Initiative, 1995), France (Service Charter, 1992), India (Citizens’ Charter, 1997), Jamaica (Citizens’ Charter 1994), Malaysia (Client Charter,1993), Portugal (The Quality Charter in Public Services, 1993), and Spain(The Quality Observatory, 1992) (OECD, 1996).

Some of these initiatives are very similar to the UK model, while others chart new  ground by leaning on the service quality paradigm of the Total Quality Management (TQM) movement.  Other initiatives are pitched somewhere in between.  Even in the UK, in the context of the Next Steps/Modernising Government Initiatives, Citizens’ Charters have acquired a service quality face for delivery of public services. The quality tools adopted for improving public services include the Business Excellence Model, Investors in People, Charter Mark, ISO 9000 and Best Value (Government of UK, 1999).

The Government of Malaysia issued Guidelines on the Client’s Charter in 1993 to assist government agencies to prepare and implement Client’s Charter, which is “a written commitment by an agency to deliver outputs or services according to specified standards of quality” (Government of Malaysia, 1998).  A Best Client’s Charter Award was instituted in 1993.  The Malaysian system of Client’s Charter closely follows the UK Model.  A distinction is made between agency-wide and unit charters.  The concept of ‘service recovery’ enjoins taking steps to restore the trust and confidence of the client in a proactive manner when things go wrong.

The Commonwealth Government of Australia launched its Service Charter initiative in 1997 as part of its on-going commitment to improve the quality of service provided by agencies to the Australian community by moving the government organisation away from bureaucratic processes to customer-focused outcomes. Service Charters are considered a powerful tool for fostering change and require the organisation to focus on services delivered, to measure and assess performance, and to initiate performance improvement.  By providing goals for agencies to strive towards, a Charter acts as a surrogate for competition where none exists (Department of Finance and Administration, 1999).  Centrelink is a one-stop shop that provides access to Australian government services for over six million customers.  Centrelink has adopted one-to-one service as an innovative and personalised approach to service delivery.  One-to-one service treats customers with respect and consistency and takes the complexity out of dealing with government.

The Treasury Board of Canada Secretariat started a Service Standard Initiative in 1995 which took its cue from the Citizens’ Charters of the United Kingdom, but enlarged the scope considerably.  This Service Standard Initiative in Canada was started against the backdrop of citizen expectations relating to friendly, respectful and courteous service; faster response times; extended hours at government offices; and “one-stop-shopping”.  At the same time there was need to reduce the deficit and provide value for money through more efficient use of resources (Treasury Board of Canada, 1995).

A comparison of these four major Citizens’ Charter initiatives shows that the service quality approach is embedded in them in different degrees.  Once a decision is taken to make public services citizen-centric, the customer focus of the Total Quality Management (TQM) variety cannot be far behind.  In fact, the Citizens’ Charter approach has several things in common with TQM.  Both begin by focusing on meeting customer/citizen requirements.  Other key common elements are conformance to standards, stakeholder involvement and continuous improvement.

The Indian Scene

Over the years, in India, significant progress has been made in the field of economic development.  This, along with a substantial increase in the literacy rate, (from 51.63% to 65.38% in the last decade) has made Indian citizens increasingly aware of their rights.  Citizens have become more articulate and expect the administration not merely to respond to their demands but also to anticipate them.  It was in this climate that since 1996 a consensus had evolved in the Government on effective and responsive administration.  In a Conference of Chief Ministers of various States and Union Territories held on 24 May, 1997 in New Delhi, presided over by the Prime Minister of India, an “Action Plan for Effective and Responsive Government” at the Centre and State levels was adopted.  One of the major decisions at that Conference was that the Central and State Governments would formulate Citizens’ Charters, starting with those sectors that have a large public interface (e.g. Railways, Telecom, Posts, Public Distribution Systems). These Charters were required to include standards of service and time limits that the public can reasonably expect, avenues of grievance redress and a provision for independent scrutiny with the involvement of citizen and consumer groups.

Department of Administrative Reforms and Public Grievances in Government of India (DARPG) initiated the task of coordinating, formulating and operationalising Citizens’ Charters.  Guidelines for formulating the Charters as well as a list of do’s and don’ts were communicated to various government departments/organisations to enable them to bring out focused and effective charters. For the formulation of the Charters, the government agencies at the Centre and State levels were advised to constitute a task force with representation from users, senior management and the cutting edge staff.  A Handbook on Citizen's Charter has been developed by the Department and sent to all the State Governments/UT Administrations.

The Charters are expected to incorporate the following elements :-(i)  Vision and Mission Statement; (ii)  Details of business transacted by the organisation; (iii)  Details of clients; (iv)  Details of services provided to each client group; (v)  Details of grievance redress mechanism and how to access it; and (vi)  Expectations from the clients.

Primarily an adaptation of the UK model, the Indian Citizens’ Charter has an additional component of ‘expectations from the clients’ or in other words ‘obligations of the users’.  Involvement of consumer organisations, citizen groups, and other stakeholders in the formulation of the Citizens’ Charter is emphasised to ensure that the Citizens’ Charter meets the needs of the users.  Regular monitoring, review and evaluation of the Charters, both internally and through external agencies, are enjoined.  Till April, 2006, 111 Citizens’ Charters had been formulated by the Central Government Ministries/ Departments/ Organisations and 668 Charters by various agencies of State Governments & Administrations of Union Territories.  Most of the national Charters are posted on the government’s websites and are open to public scrutiny.  The organisations with Citizens’ Charters are advised to give publicity to their Charters through such means as print/ electronic media and awareness campaigns.

Comprehensive Website on Citizens’ Charters

A comprehensive website of Citizens’ Charters in Government of India (www.goicharters.nic.in) has been developed and was launched by the Department  of Administrative Reforms and Public Grievances on 31 May, 2002.  This contains the Citizens’ Charters issued by various Central Government Ministries/ Departments/ Organisations.  The website provides useful information, data and links.

  

Exemplary implementation of the Citizens’ Charte

While the overall efforts and initiatives of the government on Citizens’ Charter were continuing, it was realised that exemplary implementation of the Charter in a major public interface area of government would not only establish the new concept in the inertia-prone bureaucracy but also act as a role model for replication in other sectors/areas.  The banking sector was identified for this purpose keeping in view the second phase of economic reforms and the fact that this sector was fairly advanced in terms of customer service and was also taking advantage of information technology to speed up various processes.  The primary objective of this exercise was to build the Banking Sector as a model of excellence in the implementation of the Citizens’ Charter.

To begin with, three major National level Banks, namely,  Punjab National Bank, Punjab and Sind Bank and Oriental Bank of Commerce, were selected for a Hand-Holding exercise by the DARPG in the year 2000.  The following key issues were highlighted for exemplary implementation of the Citizens’ Charter :- (i)  stakeholder involvement in the formulation of Citizens’ Charters; (ii) deployment of the Citizens’ Charters in the Banks by full involvement of the staff, specially the employees at the cutting-edge level; (iii) creation of awareness about the Charter amongst the customers of the Banks; and (iv) special training for employees at all levels about the concept and implementation of Citizens’ Charter.

After an evaluation of the current status of the Charters by the identified banks through independent agencies, Action Plans were chalked out to rectify shortcomings.  The Charters were, accordingly, revised and standardised on the basis of the model/ mother Charter developed by the Indian Banks Association (IBA).  Training for employees of selected branches through master trainers, trained by the National Institute of Bank Management using a module developed in consultation with Department of ARPG were organised.  Several measures to give wide publicity to Citizens’ Charter were also undertaken.

An external agency was engaged to once again assess and evaluate the implementation of Citizens’ Charter of these banks at the end of this exercise and also to document the Hand-Holding Exercise.  National Institute of Bank Management was assigned this task which had since been executed and a documentation was brought out in the Year 2003. 

Evaluation of Citizens’ Charters

An evaluation of the Citizens’ Charters of various government agencies was carried out by DARPG and Consumer Coordination Council, New Delhi, an NGO, in October 1998.  The results were quite encouraging given the nascent stage of this initiative in India. A brief questionnaire has been circulated to all Ministries/Departments and State Governments/Union Territories to enable them to undertake an in-house evaluation of their Citizens’ Charters.  Organisations have also been advised to undertake external evaluations, preferably through NGOs. 

During the Year 2002-03, DARPG engaged a professional agency to develop a standardised model for internal and external evaluation of Citizens’ Charters in a more effective, quantifiable and objective manner. This agency also carried out evaluation of implementation of Charters in 5 Central Government Organisations and 15 Departments/ Organisations of States of Andhra Pradesh, Maharashtra and Uttar Pradesh.  This Agency was also required to  suggest methods for increasing awareness, both within the organisation and among the users, and to suggest possible methods for orientation of management and the staff in the task of formulating and deploying Charters.

 As per the report of evaluation carried out by the Agency, major findings were :-

      (i)    In majority of cases Charters were not formulated through a consultative process;

      (ii)   By and large service providers are not familiar with the philosophy, goals and main features of the Charter;
(iii) Adequate publicity to the Charters had not been given in any of the Departments evaluated.  In most     Departments, the Charters are only in the initial or middle stage of implementation;

     (iv)  No funds have been specifically earmarked for awareness generation of Citizens’ Charter or for orientation of  staff on various components of the Charter;

Key recommendations, inter alia, include :- (i) need for citizens and staff to be consulted at every stage of formulation of the Charter, (ii) orientation of staff about the salient features and goals/ objectives of the Charter; vision and mission statement of the department; and skills such as team building, problem solving, handling of grievances and communication skills, (iii) need for creation of database on consumer grievances and redress, (iv) need for wider publicity of the Charter through print media, posters, banners, leaflets, handbills, brochures, local newspapers etc. and also through electronic media,  (v) earmarking of specific budgets for awareness generation and orientation of staff, and (vi) replication of best practices in this field.

  

Compendium on Citizens’ Charters in Government of India 

With the objective of generating awareness among the citizens as well as government functionaries of the commitments of various organisations enshrined in their Citizens’ Charter, the Department of Administrative Reforms and Public Grievances brought out a Compendium of abridged versions of all Citizens’ Charters in Government of India in a book as well as in CD form on 14 May, 2003.  The Compendium contains the operative standards and quality of services proposed to be provided as also the public grievance redress mechanism as committed in the Citizens’ Charters.  The Compendium also contains the name, address, telephone number, e-mail address etc. of nodal officers for Citizens’ Charters in Central Government Ministries/ Departments/ Organisations and also the list of website addresses of concerned Ministry/ Department/ Organisation.

The Compendium shall not only be useful to the citizens for ready reference, but will also enable them to critically review the functioning of these organisations.  This would also help the organisations to compare the standards set by them, vis-à-vis, those set by other organisations. 

Regional Seminars

Four Regional Seminars on Citizens’ Charters were organised during the year 2001-02, with a view to bring national and state level organisations alongwith other stakeholders including NGOs, intelligentsia, media etc. on the same platform and to share experiences in formulation and implementation of Citizens’ Charter.  These seminars were organised at Administrative Staff College of India, Hyderabad, Lal Bahadur Shastri National Academy of Administration, Mussoorie, R.C.V.P. Noronha Academy of Administration, Bhopal and Assam Administrative Staff College, Guwahati.  In all 24 State Governments/ UT Administrations and 15 Central Government Departments/ Organisations participated. 

Capacity Building Workshops

On the basis of the feedback received and experience gained in these seminars, it was decided to organise separate Capacity Building Workshops with specific focus on (i) formulation of Charter (ii) effective implementation of Charter and (iii) enhancing the capacity of trainers available at State Administrative Training  Institutes/ Central Civil Services Staff Colleges. 

Evaluation of Delivery of Services  

The Department of Administrative Reforms and Public Grievances has developed a model for conceptualizing and implementing a Scheme for recognizing excellence in service delivery by government organizations. The Scheme has been tailor-made for government organizations with specific focus on citizen interface and expectations and is slated for implementation in the Ministries in a phased manner. The model synthesizes the ground realities in India with International Best Practices and is based on proper implementation of citizen charters, effectiveness of public grievance redress mechanism and status of service delivery enablers from the citizen’s perspective and efforts made by the departments in improving their own capability to deliver. The model had been tested among several organizations and was presented before Workshops of NGOs, citizen groups and government departments. These discussions have eventually culminated in implementation of the certification requirements. Using the tools provided by this model, government agencies can self-assess and improve quality of their service delivery, and over a period of time graduate to a level where an objective evaluation can be done and excellence can be publicly recognized.

  

Information and Facilitation Counters (IFCs)

Information and Facilitation Counter (IFC) is a facility set up by selected  Central Government organisations to provide information to citizens about their programmes/schemes, rules and procedures etc. as well as status of cases/applications.  An IFC also acts as a nodal point for redress of public grievances.  The IFC, therefore, is a physical manifestation of Citizens’ Charter.  Hence it has now been decided to set up IFCs in all government ministries/ departments having Citizens’ Charters. 105 Information and Facilitation Counters/ May I Help You/ Inquiry Counters have been set up so far.

Evaluation of the functioning of the IFCs was carried out by the DARPG and the Consumer Coordination Council.  The organisations concerned have taken action on deficiencies pointed out in these evaluations.  This Department also regularly monitors the working of the IFCs through a half-yearly return prescribed for all the organisations that have set up IFCs.

Problems faced in Implementing the Charters 

As pointed out, the Citizens’ Charters initiative in India had started in 1997 and the Charters formulated are in a nascent stage of implementation. Introduction of a new concept is always difficult in any organisation.  Introduction and implementation of the concept of Citizens’ Charter in the Government of India was much more difficult due to the old bureaucratic set up/procedures and the rigid attitudes of the work force. The major obstacles encountered in this initiative were :-

1.   The general perception of organisations which formulated Citizens’ Charters was that the exercise was to be carried out because there was a direction from the top.  The consultation process was minimal or largely absent.  It thus became one of the routine activities of the organisation and had no focus.

2.   For any Charter to succeed, the employees responsible for its implementation should have proper training and orientation, as commitments of the Charter cannot be expected to be delivered by a workforce that is unaware of the spirit and content of the Charter.  However, in many cases, the concerned staff were not adequately trained and sensitised.

3.  Sometimes, transfers and reshuffles of concerned officers at the crucial stages of formulation/implementation of a Citizens’ Charter in an organisation severely undermined the strategic processes which were put in place and hampered the progress of the initiative.

4.   Awareness campaigns to educate clients about the Charter were not conducted systematically.

5.   In some cases, the standards/time norms of services mentioned in Citizens’ Charter were either too lax or too tight and were, therefore, unrealistic and created an unfavourable impression on the clients of the Charter.

6. The concept behind the Citizens’ Charter was not properly understood. Information brochures, publicity materials, pamphlets produced earlier by the organisations were mistaken for Citizens’ Charters.

Lessons learnt

The following lessons have been learnt from the experience to date of implementing Citizens’ Charter initiative:

1.  As with any new effort, the Citizens’ Charter initiative is bound to be looked at initially with skepticism by bureaucrats as well as citizens.  An effective awareness campaign amongst all the stakeholders at the initial stage is essential to overcome this skepticism.  These awareness campaigns should be designed and delivered innovatively and effectively.

2.  The issuance of Citizens’ Charter will not change overnight the mindset of the staff and the clients, developed over a period of time.  Therefore, regular, untiring and persistent efforts are required to bring about the attitudinal changes.

3.   A new initiative always encounters barriers and misgivings from the staff. There is a natural resistance to change, particularly among the cutting-edge staff.  Involving and consulting them at all the levels of formulation and implementation of Citizens’ Charter will go a long way in overcoming this resistance and will make them an equal partner in this exercise.

4.   Instead of trying to reform all the processes at once and encounter massive resistance, it is advisable to break it into small components and tackle them one at a time.

5.   The charter initiative should have an built-in mechanism for monitoring, evaluating and reviewing the working of the Charters, preferably through an outside agency.

Future Vision : Development of Charter Mark 

In 1992, the UK Government introduced Charter Mark, a scheme for recognising and encouraging excellence in public service.  To win a Charter Mark the organisation has to demonstrate excellence against the following nine Charter Mark criteria which correspond to the principles of public service delivery, namely, (1) Performance Standards;  (2) Information and openness; (3) Choice and Consultation; (4) Courtesy and helpfulness; (5) Putting things right; (6) Value for money; (7) Use satisfaction; (8) Improvements in service quality; and (9) Planned improvements and innovations.  The Government of Malaysia also instituted a “Best Client’s Charter Award” in 1993 based on the UK model.

In India, the DARPG has identified a professional agency to develop an appropriate Charter Mark scheme.  This scheme will encourage and reward improvement in public service delivery with reference to the commitments and standards notified in the Charter.  The ‘Charter Mark’ is proposed to be awarded after assessment by an independent panel of judges.  This would not only give a sense of achievement to the organisation awarded the Charter Mark but also promote a spirit of competitiveness amongst various organisations that have issued Citizens’ Charter and generating awareness among citizens.  A prototype has been developed by the professional agency and is in the process of validation in identified Departments/ Organisations. 

The implementation of Citizens’ Charter is an on-going exercise because it has to reflect the extensive and continual changes taking place in the domain of public services.  Indian Government continuously strives to serve the citizens in an effective and efficient way so as not only to meet but to exceed their expectations.  The Citizens’ Charter initiative is a major step in this direction.

Source: Department of Administrative Reform and Public Grievance

CAPITAL PUNISHMEENT:REVISITING THE ABOLITION-RETENTION DEBATE

CAPITAL PUNISHMEENT:REVISITING THE ABOLITION-RETENTION DEBATE

"A society which felt neither anger nor indignation at outrageous conduct would hardly enjoy an effective system of law" - Salmond.

The clemency petition filed by three convicts in the Rajiv Gandhi assassination case Murugan, Santhan and Perarivalan and convicted terrorist Mohammed Afzal Guru in recent past has obtained a large amount of attention in the media. One end mercy plea advocated by the Jammu and Kashmir Chief Minister and the coalition partner of his government and another end resolution passed by Tamil Nadu assembly and mass protest in the state invoked the debate on Capital Punishment among the people and the legal experts in India.

All this has given rise to a debate over following issues

1. Whether death penalty be abolished?

2. Whether Afzal Guru’s case satisfies the relevant legal tests incorporated under law and laid down in various judicial decisions?

3. Whether the provision of death penalty as an alternative punishment for murder, in sec. 302, Penal Code is not in the public interest?

4. Whether the provisions of section 302 of I.P.C. are against the ethos of Article 19 as well as 14?

From the time immemorial this has for long remained a controversial question both at national and international level. The issue has been tirelessly debated on national as well as international level but nothing conclusive has come out till now. No doubt the problem is of serious nature but the difficulty involved should not deter us from venturing into the pros and cons involve in the question. The opinion of intellectuals such as Legal Philosophers, Jurists, Judges, and other social scientists stands divided. In many countries capital punishment is an integral part of criminal justice system and it has remained to be accepted form of justice through the ages though its form may have been different because of reasons of geography, culture, and the passing of time.

The Indian jurisprudence is a blend of reformative and deterrent theories. While the punishments are to be imposed to deter the offenders, it is also inalienable part of Indian penal jurisprudence that the offenders should be given opportunity for reformation. Bearing in mind these fundamental tenets, the legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection basically lays down that special reasons are to be recorded by the Court for imposing death punishment in capital offences. Thus, the position of law after Cr.P.C. 1973 became that the general rule was life imprisonment while the death sentence was to be imposed only in special cases.

Crime has rightly been described as an act of warfare against the community touching new depths of lawlessness. The object of imposing deterrent sentences is threefold:

(1) To protect the community against callous criminals for a long time.

(2) To administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow, and

(3) To deter criminals who are forced to undergo long-term imprisonment from repeating their criminal acts in future. Even from the point of view of reformative form of punishment "prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe"for the society.

Hobbes asserted that every man had under the natural order has the right of reprisal for wrongs done to himself or anyone else. Then he said that social contract had left this right to the sovereign while taking it away from everyone else. Kant viewed that every political society had a duty to enforce retributive justice. Rousseau felt that the subject ought not to complain if the sovereign demanded the subject’s life. He considered death as a proper punishment, if the criminal was beyond redemption. "A society which felt neither anger nor indignation at outrageous conduct would hardly enjoy an effective system of law" (Salmond).

1. England abolished death penalty for murder, in spite of the Murder (Abolition of Death Penalty) Act, 1965 in England death sentence can be lawfully imposed in cases of high treason, setting fire to Queen’s ships, arsenals etc and in piracy with violence. 2. In the Soviet Union Death Penalty was abolished in May 1947 and in May 1950 it was reintroduced for Treason, espionage and sabotage and in 1954 for intentional homicide under aggravating circumstances. 3. French Penal Code of 1810 as amended in 1959 retained Death Penalty. 4. Death Penalty has been retained by the prepatory draft for the revised Penal Code of Japan though it should be invoked with great caution. This points out towards the fact that most of the nations are reluctant to do away with the Death Penalty.

One of the arguments of abolitionists is that death penalty is against Hindu Philosophy but this will not stand the scrutiny of mythological texts. The imposition of death penalty in India: appears to go back to ancient times according to the country’s epics and mythology: stories abound in our mythology of the destruction of demons who, became a deadly menace to the life, property and authority of mortals and the divine race alike; tales of Hiranyakashyapu, Bali and Mahishasura etc. No doubt religion preaches against killing of human being but that presupposes an ideal society and if we cannot provide ideal conditions then we cannot of particular aspect in isolation. The statistics, which talks of absence of any relationship between death penalty and occurrence of crime, cannot be straightway trusted for such an important policy decision as that of death penalty. The statistics derived from a quantitative method may not be an appropriate method to judge the basic truth about the qualitative aspects of those results.

Retributive character

The punishment is retributive in character. The object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it lest it may lead to Lynch Law. There have been instances where victim’s relative killed the accused. Criminal Law has its origin in vengeance. Punishment mechanism revolves around the satisfaction of law-abiding person’s anger. Anger is not always bad but it is the indifference of community towards the circumstances, which is more harmful. One of the purposes of law is to calm the community’s anger by punishing the criminal. Anger which is not selfish like greed or jealously is socially constructive and when it erupts for right cause it should be rewarded. Punishment is primarily satisfaction of private revenge and at the same time an emphatic denunciation of the crime by the society. Any civilized society which shies away from showing righteous indignation has nothing to distinguish it from maim soul The Criminal Law stands to the passion of revenge in much the same relation as marriage to sexual appetite6. Retributive punishment tends to control recidivism.

The theory of deterrent punishment draws its inspiration from the hedonistic philosophy of Beccaria’s classical school of criminology. A rigorous and maximum punishment as against a moderate and lesser punishment helps to prevent the commission of a crime. For the incorrigibles and habitual and hardened criminals death penalty is best suited and it is the only method teaching hardened criminals. The incorrigible and hardened criminal as a rotten limb of the society must be eliminated. The prevalence of recidivism offers a serious stumbling block to a too ready acceptance of the idea of readily achieved reformation. The recidivist becomes the criminal who after having experienced rehabilitation treatment returns to crime and ultimately to prison again to be rehabilitated further. Making murder a safer proposition, a less deadly proposition for the killer will have a hostile effect on society. The capital punishment is an effective tool to curve the grave wrong act such as of killing and it can also be instrumental in preventing society from becoming ever more imperfect than it need be.

Previous efforts to abolish the Death Penalty

Legislative attempts to abolish the death penalty in India have failed. Before Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion.

The Government of independent India rejected a similar Bill introduced in the first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958 and 1962 but were withdrawn after some debate.

The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy.

The issue of constitutional validity of Sec. 302, the SC in Jagmohan V/s State of U.P. Apart thrashed out I.P.C. in detail from the constitutional validity, the SC also discussed position in other countries, the structure of Indian Criminal law, the extent of Judicial discretion etc.

It was held in Jagmohan Singh v. State of U.P.7 that death sentence act as deterrence but as token of emphatic disapproval of the crime by the society, where the murder is diabolical in conception and cruel in execution and that such murderers cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Expediency of transplanting western experience in our country was rejected, as social conditions and so also the general intellectual levels are different. The court referred to the 25th Report of the Law Commission of India, in which it was stated that India cannot risk the experiment of abolition of capital punishment. The fact that the possibility of an error being committed in the matter of sentence can be corrected by appeals and revisions to higher courts was relied upon.

The approach of our Supreme Court in the matter of death sentence is cautious as well as restrictive which is in consonance with the modern and liberal trends in criminal jurisprudence. The doctrine of Rarest of Rare evolved by the apex Court reflects the humanist Jurisprudence. There have been ample instances where the Supreme Court has restricted the use and imposition of death penalty only to cases coming within the category of rarest of rare. Under sec 354(3) of the Criminal Procedure Code, 1973 a new provision has been introduced to say that when the conviction is for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reason for the sentence awarded and in the case of sentence of death, the special reason for such sentence.

Rarest of rare cases

Whether a case falls under the category of rarest of rare case or not, for that matter the Apex court laid down a few principles for deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. Court opined that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed.

In Machhi singh vs. State of Punjab8 the court laid down: - "In order to apply these guidelines inter-alia the following questions maybe asked and answered:

(a). Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"

Aggravating Circumstances

1. Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

2. Murder- for a motive, which evinces total depravity and meanness.

3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath (not for personal reasons).

4. Bride burning/ Dowry death.

5. Murderer in a dominating position, position of trust or in course of betrayal of the motherland.

6. Where it is enormous in proportion.

7. Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.

Mitigating circumstances

1. That the offence was committed under the influence of extreme mental or emotional distribution;

2. If the accused is young or old, he shall not be sentenced to death.

3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

4. The probability that the accused can be reformed and rehabilitated; the state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

6. That the accused acted under the duress of domination of another person.

7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

Where two members of an unlawful assembly went forward to deal with their target by disposing him of and, on being not able to get him, gunned down his two young girls whom they chanced to spot on way back, the Supreme Court held that it was not one of those "rarest of rare" cases in which death penalty would be warranted.

Supreme Court in Dhananjoy Chatterjee v. State of W.B. held that the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.

As already stated that opinion on Capital Punishment stands divided and large segment of population including notable penologists, judges, jurists, legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent and a greater deterrent than life imprisonment. Courts must administer shock therapy to deter certain crimes, as threat of death to the offender may still be a promising strategy in some frightful areas of murderous crime. Death penalty serves as a deterrent as well as retributive. Only penalty of death will provide maximum deterrence. No other punishment deters men so effectually from committing crimes, as the punishment of death. Death is death; its terrors cannot be described more forcibly. Prima Facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human behaviour than any other form of punishment, though it is difficult to unravel the innermost recesses of the minds of potential murderers. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not. If accepted that death penalty have no deterrent effect then it will be most illogical and irrational to ask for continuances of a scheme of penalties for lesser offences against society. How can lesser punishment have a deterrent effect when the severest in the scheme of penalties have no such effect?

Some of the observations made by the apex court in Bachan Singh's case are worth mentioning. On the question of reasonableness of death penalty, the SC observed- "...if not withstanding the view of the abolitionists to the contrary , a very large segment of people, the world over, including sociologists , legislature , Jurists , judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion canalized through the peoples representatives in parliament, has repeatedly including the one made recently to abolish or specifically restrict the area of death penalty, if death penalty is still a recognized legal sanction for murder or some types of murder in most of the civilized countries in the world , if the farmers of the Indian constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th report and subsequent reports of law commission suggesting retention of death penalty, and recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354 (3) were before the Parliament when it took up revision of the Cr.P.C.

Further the opinion of Sir James Fitziames Stephen, a great Jurist, who was concerned with the drafting of I.P.C. is very important to mention- "No other punishment deters man so effectually from committing crimes as the punishment of death. This is one of those propositions which is difficult to prove simply because they are in themselves more obvious than any proof can make them. In any secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot be described more forcibly. " These views are very strong answers to the people who oppose death punishment with the arguments that it does not serve penological purpose.

Constitutional validity of death sentence

In the case of Jagmohan V/s State of U.P . the question of constitutional validity of death punishment was challenged before the SC, it was argued that the right to live was basic to freedom guaranteed under Article 19 of the constitution . The S.C. rejected the contention and held that death sentence cannot be regarded as unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the constitution.

In Bachan singh’s case it was categorically opined by the Apex court ..it is not possible to held that the provision of death penalty as an alternative punishment for murder, in sec. 302, Penal Code is unreasonable and not in the public interest. The impugned provision in Sec. 302 , violates neither the letter nor the ethos of Article 19" . [ Para 132]. Sarkaria J. delivered the judgment for majority discussed all these issues at length, and the SC, with the majority of 4:1 rejected the challenges to the constitutionality of sec.302 I.P.C.

Indispensability of Capital Punishment in India

Life imprisonment in our country is not of much significance as it can be substantially reduced (limitation is that it cannot be reduced below 14 years). Life imprisonment under no circumstances should be reduced as it is in most heinous crimes that the sentence life imprisonment is awarded. Even if this is accepted still there are other valid objections. Death penalty cannot be removed or abolished on humanitarian grounds or on the grounds of other alternative mode of punishment are available. A killer who is a perpetrator of other’s right to live can’t claim to have an inviolable right to live. The focus should be on the mischief flowing from what the criminal has done to his victim and those near and dear to him and greater attention be paid to victimlogy and therefore to the retributive aspect of punishment. The abolitionist needs to shift their focus from criminal to victim, as a killer is a proven enemy of society. Even if option to decide on death penalty or life imprisonment is to be given it should be left to the victim’s family who have suffered due to the killer and know more about cruelty than the abolitionists. The demand of abolition of death penalty is a demand in wrong direction and represents a trend reversal when society is considering the issue whether mercy killing be accepted or not. Death penalty to a killer is a sort of mercy to an ailing society, which wants to get rid of its enemy. The process of reformation of criminals with an unascertained record would entail a great risk as a sizable number of criminals instead of being reformed may be encouraged to commit offences after offences and become a serious and horrendous hazard to the society. The question, therefore, is--should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself, Valmikis are not born every day and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible.

Even for the sake of argument if it is accepted that capital punishment has no deterrence then it means that criminal is not afraid of death and it will be difficult for the state to keep such a person in prison after all it is the fear of death that keeps a criminal in jail. After all criminal facing life imprisonment need a single chance to set himself free for taking a revenge from adverse witnesses and the prosecution who according to him were responsible for sending him to jail. Judge may also become the victim of his anger. As there is a saying so long as there is life, there is scope for irrepressible hope and hope for a break for freedom. A prisoner serving life imprisonment can go on a killing spree and there can be no further punishment from the punishment he is already facing. One important question that arises is shall we sacrifice the lives of future victims in order to spare the life of a murderer. Argument that goes against death penalty is that the societies do not have the right to take anyone’s life since it cannot give life then why to kill soldiers of enemy, terrorist. One may say what is the need of providing arms to security forces if no human being can be deprived of his/her life whatever may be the circumstances. Prima Facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human behavior than any other form of punishment, though it is difficult to unravel the innermost recesses of the minds of potential murderers.

The conditions prevailing in some western countries that have abolished death penalty are incomparable with India. In abolitionist States even the most notorious criminals are effectively segregated from civil society for the rest of their natural life.

Contrastingly, in India life sentence can be reduced to 14 years. Our prison system is inadequate and unable to hold capital offenders for longer periods as in most western countries. How many times we have read the reports in newspaper about recovery of cell phones from prisons and many criminals find it suitable to operate from jails as they are protected from their rival criminals.

Conclusion

"Each extreme is a vice; virtue lies in the middle" - Aristotle

The death penalty is a part of Indian law, and unless it is altered by legal or constitutional amendment, it is a given which every judge of every Indian court is bound to apply, whenever the relevant legal test are fulfilled.

The Indian jurisprudence is a blend of reformative and deterrent theories. While the punishments are to be imposed to deter the offenders, it is also inalienable part of Indian penal jurisprudence that the offenders should be given opportunity for reformation. Bearing in mind these fundamental tenets, the legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection basically lays down that special reasons are to be recorded by the Court for imposing death punishment in capital offences. Thus, the position of law after Cr.P.C. 1973 became that the general rule was life imprisonment while the death sentence was to be imposed only in special cases.

Prima facie, the penalty of death is likely to have a stronger effect as a deterrent to normal human being than any other form of punishment, though it is difficult to unravel the innermost recesses of the mind of the potential murderers. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the culprit deserves it, irrespective of whether it is a deterrent or not. Retribution is still a socially acceptable function of punishment. The instinct for retribution is part of the nature of man. Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals, which ultimately merge into one. Death penalty to a killer is a sort of mercy to an ailing society, which wants to get rid of its enemy. Anger which is not selfish like greed or jealously is socially constructive and when it erupts for right cause it should be rewarded.

Even for the sake of argument if it is accepted that capital punishment has no deterrence then it means that criminal is not afraid of death and it will be difficult for the state to keep such a person in prison after all it is the fear of death that keeps a criminal in jail. The abolitionist needs to shift their focus from criminal to victim, as a killer is a proven enemy of society.

If the law is not enforced then cure is enforcement, not repeal. If death penalty is an evil it is a necessary evil and a criminal chooses this voluntarily.

*Source: Legalserviceindia