By Richa Tomar and Suneet Kumar Dwivedi
The ‘death penalty’ means the punishment of death which goes with the taking of life of an accused person in execution of a court order. It is a common law principle of criminal punishment, and not divine retribution or The law of karma.
DEATH PENALTY IN INDIA DEVELOPMENTS
Attempts towards Abolition
Several attempts to abolish the death penalty by legislation 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 Minister however rejected that motion. The Government of Independent India also rejected the similar bill introduced in the first Lok Sabha. Resolutions introduced in the Rajya Sabha in 1958 and 1962 met with a similar fate, but the Government agreed to forward copies of the 1962 house debates to the Law Commission which was, at the time, reviewing the penal code and the code of Crimin al Procedure. The Law Commission, in its 85″ report presented to the Government in 1967 and the Lok Sabha in 1971, concluded that the death penalty should be retained, and that the executive should continue to possess power of mercy. The Lok Sabha specifically discussed the abolition of death penalty last in 1983.
The international community increasingly called for states to limit and, ultimately, elimin ate use of the death penalty. The cornerstone of contemporary human rights law is the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10″ December 1948. The conclusion from reading Article 3 and 4 of the Universal Declaration of Human Rights is indeed that respect for human life is non- negotiable.
In the 1993 statute establishing the International Crimin al Tribunal For the former Yugoslavia and the 1994 statute for the International Crimin al Tribunal for Rwanda, the United Nations specifically rejected including the death penalty as an option. The true test for international sentiment came in 1998 with the adoption of Rome Treaty for an International Crimin al Court. With 120 nations of the world signing the fin al act and only seven against. genocide, crimes against humanity makes the exclusion of the death penalty an especially important development.
One of the most important human rights treaties that India has ratified, the International Covenant on Civil and Political Rights (ICCPR), the covenant emphasized the need for stressing everyone’s right to life and the need for restricting the application of capital punishment with a view of abolition of death penalty.
The African Charter on Human and People’s Rights Article 4 reads as: Human beings are inviolable. Every human being shall be entitied to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his rights.
SOME DEBATEABLE POINTS
Can the state kill?
The first major argument of the abolitionists is on religious and moral grounds. Theologically speaking, life can be extinguished only by one who creates it i.e. god. Looking at things from moral prism, state or society has no right, authority, or justification to take away life for the simple reason that they cannot give one. The very reason for the existence of death penalty suffers from an obvious logical fallacy:
Fact — The murderer has killed
Basic Premise- It is wrong to kill
Conclusion — Let us kil the murderer
If a person has to be killed to maintain justice, then, clearly, the state has lost its rationality the reason for its existence. Either it cannot rule, or the society that exists at its core is not good or healthy enough to enable reform or a change of heart.
The life of a human being is his or her in alienable human right and is hence non negotiable. The importance of this argument lies in the fact that even if it is arguably shown by the retentionists that the death penalty does achieve a greater goal, individual human right cannot be sacrificed at the altar of societal good. To put it in simple words, one just cannot kill an individual because it might be beneficial to society.
The Hungarian Constitutional Court in 1990 declared that death penalty violates the ‘inherent right to life and human dignity” as provided in the country’s constitution.
The Pakistani national’s plea for mercy to Indian President Pranab Mukherjee was rejected. He was convicted of murder and other crimes in May 2010. He was executed in prison in Pune 21 November 2012. The Supreme Court upheld his death sentence in August.
The most draconian aspect of death penalty is its sheer irrevocability. You die only once, and you die forever. Given human fallibility, no human institution can claim to be free from the possibility of making errors. The judiciary sadly is no exception. Wrongly imprisoning a person can still be compensated in one form or the other.
But death means fin ality. Once the soul is divorced from the body; no human agency can bring about a reunion.
In Bachan Singh’s case, Justice Bhagwati in his dissent rightly acknowledged the limits to human infallibility. Their lordships considered the social, ethical and even spiritual aspect of death penalty while upholding the constitutional validity thereof.
The main theories of sentencing are Retribution, Just Deserts, Incapacitation, Deterrence and Rehabilitation.
Retribution appears to the instinct of revenge in human beings. If the justification of a sentence lies in revenge, it ishall be violative of article 14 and 19 of the justification to take away life for the simple reason that they cannot give one. The very reason for the existence of death penalty suffers from an obvious logical fallacy
If a person has to be killed to maintain justice, then, clearly, the state has lost its rationality the reason for its existence. Either it cannot rule, or the society that exists at its core is not good or healthy enough to enable reform or a change of heart
Constitution. Today the move is from retributive to restorative justice.
But in recent times, just deserts as a new avatar of retribution is seen as more acceptable. The point that this argument misses is that, just desert does not mean strictly equal punishment but equivalent and proportional punishment. So, we need not kill a murderer just as we don’t rape a rapist, or burn an arsonist. Imprisonment does serve just and proportional punishment for murder just as it does for many other offenses.
Incapacitation as a penological goal seeks to ensure that the convict is incapacitated from repeating the commitment of the offence. We have to admit honestly that death penalty fully realizes this goal and with a frozen fin ality. Incapacitation is also served by imprisonment or probation for the desired period of time.
Procedural Arbitrariness
The entire procedure of sentencing a person to death is inherently and irreparably marked by arbitrariness. The statute provides a wide and unchannalised discretion to the judge to decide whether the punishment to be life imprisonments or death penalty. There is statutory
Before private bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Minister however rejected that motion. The Government of Independent India also rejected the similar bill introduced in the first Lok Sabha guideline except a requirement of recording ‘special reasons’ for the award of death sentence. The statute gives no clue to as what these special reasons are. Even the “rarest of rare” doctrine evolved by the Supreme Court is hardly of any help. An analysis of case laws shows that these special reasons that whether these are ‘special reasons’ or whether the case is ‘rarest of rare’ is entirely based on the whims and subjective satisfaction of the judges. Everything boils down to the fact that whether a person is to be send to the gallows is decided by the judge’s own ideologies, perception of crimes, sentencing and punishment policy, educational, cultural and social background and personal outlook.
It is not mere coincidence that Justice Bhagwati has not sent a single person to the hang-person’s noose, whereas the special judge in the Rajiv Gandhi Assassin ation Case sentenced all the twenty six convicts to death including people whose connection with assassin ation were very remote. While dealing with it, in the Supreme Court, nineteen of the twenty six were found to be innocent of the offense of murder and all of them of any TADA charge. Of the seven that were found guilty of the murder charge, four including a woman Nalini, were sentenced to death.
A very interesting case that demystifies these notions of convenience of our judges is Harbans Singh v. Union of India fin ally The Supreme Court recommended the President to commute his sentence. This case also emphasizes the ironic fin ality of the death sentence, which has already been discussed.
Class Bias
Basically Capital Punishment comes to mean that if you have capital, this is not the punishment for you!
These arguments of the class bias and arbitrariness show prima facie violation of article 14 of the Constitution of India and require the death penalty to be struck down as unconstitutional.
The painfully long judicial process is not unique to death penalty cases alone. But what makes it istand apart from others is the inhuman wait the accused has to go through, not knowing whether he or she shall end up hanging. The knowledge of the possibility of being executed kills the person a thousand times before actual hanging, even if it does not take place. There have been times, when the execution has been stayed minutes before the scheduled time, only to be reconsidered later.
Hanging is just one of the many methods employed by
the state to kill. Sometimes, even by hanging, life is not extinguished immediately, but might take long and painful process. In the case of Nathuram Godse (convicted for assassinating Gandhi) for example, the individual died a quarter of an hour after being dropped from the scaffold. However, hanging is the only method used in India. Other countries employ methods like lethal injection, gas chamber, beheading, shooting, and electrocution besides hanging. It is really difficult to find out which method causes the least pain, for the person who could have told this is already dead. Imagination or scientific study cannot completely replace experience. Lethal injection might sound a comparatively bloodless and humane way of killing, yet the argument against it runs that it has to be administered by a medical practitioner and it is against ethics of medicine to kill. Why do we fail to see that it is not only against ethics of medicine, but also the ethics of humanity to kill?
It is submitted that there can be no humane way to kill.
If whipping was taken out of statute book for being cruel and inhuman, how can death penalty continue to exist?
Mohammad Afzal Guru, an Indian national, was convicted by Indian court for the December 2001 attack on the Indian Parliament, and sentenced to death. His appeal was rejected by the Supreme Court of India in 2005 and on 3 February 2013, his mercy petition was rejected by the President of India, Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar Jail on 9 February 2013 and afterward buried inside jail grounds in Operation Three Star. His family was not informed prior to execution and his dead body was later denied to his family, while his execution resulted in violent protests across the Kashmir region.
Too Few To Matter
One of the arguments forwarded in the Indian context is that anyways there are too few people hanged annually to deserve a serious consideration of the issue. The entire issue has much wider socio, ethical and political ramifications. In contemporary human rights jurisprudence, where the right of every individual is to be respected, it is the value of life more than the number of lives, which matters.
Even Justice Bhagwati, in his laudable dissent in Bachan Singh realized this ideological proximity between the idea of death penalty and Nazism. Both firmly believed that the useless and dangerous members of the society must be elimin ated. The only difference lies in the different parameters they use for danger and uselessness — the former’s barometer is the accident of having killed someone, while the latter decides it on the basis of birth.
Conclusion
The message is loud and clear death penalty cannot be justified either logically or rationally, or looking at it from the human rights or feminist point of view. It is the ultimate denial of the value of human life, creation and an insult to human existence. It is a remnant of ancient totalitarianism of the state, supported by medieval irrationality and justified by modern utilitarianism. We have moved beyond all this. The world has moved to a point where human dignity is inviolable and non-negotiable. Here death penalty becomes quite incongruent.
Death penalty demeans us. Reports from the United States telling about people wanting to witness the execution or press the fin al lever to put one to sleep
only arouse disgust. How low can humanity stoop? How inhuman can we get to derive sadistic pleasure from the sight of death? Thankfully, public opinion in India has not reached such level of grossness. Yet, it is imperative that we do away with this sentence if we want to preserve a basic respect for human life.
-Richa Tomar and Suneet Kumar Dwivedi