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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.
Statistics:
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.
Further,
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? |
The
author can be reached at: adityaperiwal@legalserviceindia.com /
