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Can Death Penalty be Ever Justified?

Written by: Aditya Periwal, 4th year law student - AK Khan Law College, Pune
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An execution is a violent public spectacle of an official homicide and one that endorses killing to solve social problems and is probably the worst example of citizenry. It is uncivilized in theory, unfair and inequitable in practice and merely an attempt of the government to satisfy its lethal fury.

Therefore through litigation, legislation and commutation by helping to foster a renewed public outcry against this barbarous and brutalizing institution, we strive to prevent executions and seek the abolishment of Capital punishment.

The Case Against Death Penalty:

1. Cruel and Unjust

Despite our great tradition of Non-Violence, we still uphold a violative instrument that contradicts the very concept of justice.
Sections121, 132,302,303,305,307,396 of the Indian Penal Code and certain sections of the Narcotics and Psychotropic Substances Act 1986 and The Terrorist and Disruptive Activities (Prevention Act) have provisions of Death Penalty. The traditional mode of "HANGING" is followed in India. Other modes being Electrocution, Firing Squad, and Lethal Injection. Whatever mode used, execution of a human being involves acute physical and mental suffering and therefore they have no place in a civilized world.

The 187th Law Commission Report suggested that 80% of the Judges with Chairman Justice M.J.Rao favoured an amendment to Section 354(5) of Criminal Procedure Code, which provided death by hanging.

2. It violates Equality before Law and Constitutional guarantee of Equal protection.

The State should not arrogate into itself the right to kill human beings, especially when it kills with predetermination and ceremony in the name of law in an arbitrary and discriminatory fashion, and therefore violates the Fundamental Right provided under Article 14 of our Constitution, which as held by Keshav Nanda Bharti v. State of Kerala, is a basic postulate of our Constitution.

Further CJ. Bhagwati has pointed on August 16 1982, " Capital punishment has a class complexion and is imposed randomly and disproportionately on the poor and uneducated". It is so ironical that in the guise of making Legislation, we have made an extension of judicial validity of Death Penalty. This is manifest from Section 4A of the Armed Forces Special Power Act, which reads as "A non commissioned officer can give the order to shoot and kill a person on the grounds of suspicion."

3. Irreversible

Its imposition is irreversible forever depriving an individual the right to benefit from new evidence that might warrant the reversal of a conviction or the setting aside of a death sentence. To add to this, the safeguards, which have been laid down, by United Nations Economic and Social Council, in 1984 are being regularly violated. So a lot of Irreversible Injustice. Also we have the problem of Laws Delays, As pointed out by the Chief Vigilance Commissioner, we have some 30 crore cases pending in the different Courts of the Country. Many "accused victims" die before their trial. Example: Dhanonjoy Chatterjee had to wait for 14 years before being put to the gallows. Justice Delayed Is Justice Denied.

4. No Sympathy With Convicted Murderer's

We cannot loose sight of the enormity and gravity of a criminal's crime. A criminal has to pay for his crime. But as a society we want to kill the crime and not the criminal. A policy of life imprisonment without the possibility of a parole would be a much humane punishment. In order to not make the accused, not a liability to the exchequer, the accused must be made to make Financial Restitution. The punishment should not be degradable so as to brandish the sanctuary of life of a person. This is certainly a violation of the Right to Life, provided under Article 21 of our Constitution. If we cannot give life to somebody we cannot take it either. It is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system.

5. Punishment
"Character logic Reformation", a stable baseline should be a precondition before an execution of a Death Penalty.
Reformative Theory of Punishment:
1. A crime is committed as a result of a conflict between the character and motive of the criminal.
2. The temptation of the motive is stronger or the restraint imposed by the character is weaker.

Compensation Theory:
If the offender were made to return the ill-gotten benefits of the crime, the spring of criminality would be dried up.
Both these theories are not mutually exclusive.

6. Unjustified Retribution
Some people who have lost a loved one to murder believe that, they cannot rest until the murderer is executed. This is an emotionally powerful argument, but by no means universal. Sonia Gandhi, had excused, the killers of her husband and the then Prime Minister, Mr. Rajiv Gandhi. As said an "An evil deed is not redeemed by an evil deed of Retaliation." It seeks to violate the very standard it seeks to enforce i.e. Not to Kill.

7. Not Deterrent
The conventional wisdom among most criminologists has been that there is no evidence that Death Penalty deters murders. This has seemed plausible in recent decades, when so tiny a percentage of murderer's have been executed that the risk of being put to death is fairly remote.
YEAR No of Executions.
1992 - 6
1993 - 4
1995 - 2
1996 - 2
2004 - 1

No comparable body of evidence contradicts this conclusion.
Deterrence is a function not only of a punishment's severity, but also its certainty and frequency. Capital Punishment cannot be administered to meet these needs. However the politicians preach for the desirability of executions as a means to mask their own failure in reducing crime.

1. The threat of Death Penalty is not going to prevent crimes that are not pre-meditative. Example: Gangland Killings, Air Piracy etc. Also is it not going to prevent political motivated crimes and acts of terror.

2. Most Capital crimes are committed in the heat of the moment or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases persons, headless of consequences to themselves as well as others, inflict violence.

3. It may incite criminal violence. In clinically documented cases, Death Penalty has increased Capital Crimes. Instances of so called " Suicide by Execution Syndrome"- persons who wanted to die but feared taking their own lives, committed murder so that the state could kill them.

4. Police Chiefs have ranked it to be least effective and not a viable form of Crime Control.

5. United Nations survey on finding relations between Death Penalty and Homicide rates in 1998 gave no positive support to the deterrent hypothesis.
6. The National Crime Record Bureau's Annual Report shows not fall in rate of crime, in spite of the fact that we have had, little but some cases of death Penalties in our country.

7. The mandate of the National Human rights Commission established under the Human Rights Protection Act of 1993 provides a lens through which the situation can be better understood- " Murder is abhorrent and demonstrates a lack of respect for human life and so a policy of state killing is immoral. It epitomizes the brutality of violence rather than the reason as the solution to solve social difficult problems."

8. Costs more than incarceration.
A murder trial normally takes more time, than when the death penalty is at issue. The taxpayers mostly pay litigation costs including the time of judges, prosecutors, defenders, court reporters and high costs of briefs. A 1982 study shows, when the death Penalty was to be reintroduced in New York, the cost of Capital Trial alone would be more than double the cost of a life term in prison. In Florida, Death Penalty costs 6 times more than Life Imprisonment. In Maryland, Death penalty costs more than 42% than Non- Death Sentence.

World Wide resolutions and Views - An Anachronism

1. The movement for abolition of Death Penalty cannot be separated form the movement of Human Rights. The Universal Declaration of Human Rights (Article 3) recognized each person's right to life and categorically states further, Article 5, "No one shall be subject to torture, or to cruel, inhuman or degrading treatment or punishment."
2. In Amnesty International's view Death Penalty robes the value of human life and removes the foundation for the realization of all rights enshrined in the UDHR. It opposes Death Penalty in all cases without reservation. C.J. Bhagwati held a similar view, while speaking at the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana on September1. 1999.
3. The General Assembly of the United Nations resolved in 1971, "In order to fully guarantee the right to life provided in Article 3 of the UDHR, the number of offences for which Capital punishment may be imposed should be progressively restricted, stressing desirability of abolishing of this punishment in all countries."
4. The European Convention on Human Rights, 1950, ratified by 41 member states of the Council of Europe, provides via Article 3 " No one shall be subject to torture or inhumane treatment or punishment."
5. The Protocol to the American Convention on Human Rights to abolish Death Penalty is open to signature and ratification.
6. The International Convention on Civil and Political Rights, to which India is a party and which has been ratified by 144 states, encourages the abolition of Death Penalty.
7. The 2nd Protocol to the International Convention on civil and Political Rights adopted by the United Nations General Assembly with its Resolution on 44/128 of 15th December 1989, is the world's first pact of universal scope at ending Death penalty.
8. The Rome Statute of International Criminal Court 1998, ratified by 60 states, via Article 77 provides for a punishment of maximum 30 years.
9. In 1995, the South African Constitutional Court has barred Death Penalty as an "Inhumane Punishment." Half of the countries in the World have abolished it either by law or in practice.
Respect Human Life.
Why Do We Kill To Tell People Not To Kill?

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