By Megha Arora
The Asian Human Rights Charter clearly states that ‘all states must abolish the death penalty’. But keeping the realities in mind it goes on to add, ‘Where it exists, it may be imposed only rarely for the most serious crimes.’
The death penalty has been outlawed in most of the major democracies and several other countries. According to Amnesty International, 68 countries have done away with it for all crimes and 14 for ordinary crimes, while another 23 have ended it in practice – either having executed no one for at least ten years or having made an international commitment to suspend further executions.
The sentence of death, the supreme penalty, has ironically found pride of place in many a statute book in the past. To most people, the sentence of death is barbaric. It is an ancient relic justified on the principle ‘an eye for an eye and a tooth for a tooth’.
Capital Punishment: Position in England & the U.S.
The death penalty for murder was abolished in Britain on December 18, 1969. It was the fourth time that the proposal had been put forward, but earlier attempts had been blocked by the House of Lords.
The last executions in Britain were carried out on August 13, 1965, when Peter Anthony Allen, aged 21, was hanged in Walton Gaol, Liverpool, and Gwynne Owen Evans, 24, was hanged in Strangeways, Manchester. They were both convicted of murder.
Since the abolition of the death penalty there have been numerous proposals for bringing it back. In 1994, a majority defeated a proposal for reintroducing the death penalty for the crime of murdering a police officer on duty.
In 1998, the United Kingdom also abolished the use of the death penalty in cases of crimes committed in war, becoming a ‘fully abolitionist country’. The provisions of the Crime and Disorder Act, 1988 abolished the death penalty for the civilian crimes for which it remained on the statute books, and the Human Rights Act 1988 replaced the death penalty with a life sentence in armed forces legislation.
The European Convention on Human Rights was incorporated into English Law on October 2nd, 2000, of which Article 19 says:
‘No one may be removed, expelled or extradited to a state where there is a serious risk that he may be subjected to death penalty, torture or other inhuman or degrading treatment.’
In USA there are 38 retentionist states (of which at least 35 have very active death penalty dockets), 11 circuits with many federal district courts in each circuit all handling death penalty cases, all making law some in conflict with others. Federal law provides for 60 death-qualifiable offences, and federal military law also provides for capital punishment.
U.S. criminal procedure divides a trial for murder (or any other capital offence) in two separate stages. During the first stage a popular jury decides if the accused is guilty or innocent, and during the second the same jury, the judge, or a group of judges (depending on the state) weigh the mitigating and aggravating circumstances and decide on the punishment.
Appeals are also divided into two phases: appeals concerning the guilt or innocence of the accused, and those that deal with the degree of punishment.
The fact that the laws of an individual state provide life without parole, that is, without the possibility of the prisoner ever being freed, is considered a positive factor because it makes the granting of clemency more probable.
India’s Stand
India, the largest democracy in the world, retains the death penalty. The death penalty is provided for by the Penal Code and by Article 21 of the Constitution which states: ‘No person may be deprived of their life or personal freedom except in cases established by law.’
Death-qualifiable offences as laid down by the Penal Code are:
- Waging war or attempting to wage war or abetting waging war against the Indian Government (Section 121).
- Abetting mutiny actually committed (Section 132).
- Giving or fabricating false evidence upon which an innocent person suffers death (Section 194).
- Murder or attempted murder (Sections 302 and 307 respectively).
- Inducement to suicide of a minor, a mentally-retarded person, or intoxicated person (Section 307).
- Dacoity accompanied with murder (Section 396).
The death penalty is not mandatory for these crimes.
Section 303 of the Indian Penal Code (IPC) prescribes the death penalty alone with no alternative in cases where a convict serving a life sentence commits murder. The court, under this Section, cannot exercise its discretion and award a lesser sentence.
In an attempt to limit the use of the death penalty, Article 354 of the criminal procedure law establishes that ‘the sentences must be motivated and the death sentences must illustrate the particular reasons that led to the decision.’
The Indian legislative system also provides for different levels of appeal, and death sentences are frequently commuted to life imprisonment upon appeal. The President also has the power to issue pardons.
The Parliament rejected Bills seeking the abolition of the sentence of death in 1956 and 1962. The Law Commission of India, in 1967, supported the retention of this punishment. Several human rights organizations have urged India to abolish capital punishment.
The Verdict
It is increasingly recognized that the death penalty has no place in a democratic and civilized society. As the international community’s consensus against the death penalty grows, India is becoming increasingly isolated in its commitment to the death penalty.
Though the Indian Supreme Court has ruled that the death sentence is to be ordered only in the ‘rarest of rare’ cases, capital punishment is included as a penalty in several laws such as the Indian Penal Code, penalty provisions of national security legislation, and anti-narcotics legislation.
The certainty of capital punishment still enjoys some moral backing from society, with many regarding the sentence as retributive justice. Kiran Bedi explains, ‘The death penalty is necessary in certain cases to do justice to society’s anger against the crime. Take the example of a gang rape – it is a pre-planned and premeditated act of crime, and when society condemns such crimes, punishment should follow.’
Many argue that capital punishments are served as a justice force and those criminals indeed deserve this treatment. I believe that there have always been some innocents who have been sacrificed due to error in the judgment, even if capital punishments have wiped out thousands of notorious figures rejected by society.
Many international instruments, most notably including the ICCPR, prohibit application of the death penalty for other than the ‘most serious crimes.’ India’s limitation of the death penalty to purportedly the ‘rarest of rare’ cases, however, does not comply with the prevailing international standards.
First, the death penalty in India is applied to crimes (e.g. narcotics offences, kidnapping for ransom) that cannot be considered the ‘most serious crimes’ as defined by international law.
Second, the international legal standard involves a commitment towards the progressive abolition of the death penalty and, as such, a practice of continuing to impose the death penalty, even if in only the ‘rarest of rare’ cases, cannot be a permanent or enduring feature of any national legal system. Instead, a doctrine such as the ‘rarest of rare’ should be an intermediate step towards the ultimate goal of abolition.
Yet, India has now maintained the ‘rarest of rare’ doctrine for over two decades without any end in sight.
Third, India’s expansion of the use of the death penalty, as in the proposed Prevention of Terrorism Bill and the Narcotics, Drugs & Psychotropic Substances (Amendment) Act violates both international law and the ‘rarest of rare’ standard itself.
Finally, the ‘rarest of rare’ doctrine cannot be applied without violating the international legal prohibition against arbitrary or discriminatory treatment. It is exceptionally difficult, if not impossible, to create or operate a system with flexible standards for judges to determine the ‘rarest of rare’ case without having the sentencing process result in uneven and arbitrary treatment.
Hence, despite the arguments of the crusaders for the death penalty, it is strongly recommended that in keeping with its international commitment, India take a positive step to abolish the system altogether, which is what every civilized, democratic society must aim at.