By Harpreet Kaur, UILS, Panjab University, Chandigarh.
I will believe in the death penalty when you will prove to me the infallibility of human beings.
-Marquis de Lafayette
INTRODUCTION: Death penalty has been the subject of an age-old debate between Aboiltionists and Retentionists, although recently the controversy has come in sharp focus. Both the groups are deeply anchored in their antagonistic views. Both firmly and sincerely believe in the righteousness of their respective stands, with overtones of sentiment and emotion. Both the camps can claim among them eminent thinkers, penologists, sociologists, Jurists, Judges, legislators, administrators and law enforcement officials. But basically death penalty is irreversible. Decided upon according to fallible processes of law by fallible human beings, it can be -and actually has been- inflicted upon people innocent of any crime. There is no convincing evidence to show that death penalty serves any penological purpose as in case of retribution deterrence or reformation. Execution by whatever means and for whatever offence is a cruel, inhuman and degrading punishment.
Lawmakers are eager to appear resolute in the fight against crime, but seem to forget that certainty of punishment, not severity, is the real deterrent. “An eye for an eye makes the whole world blind,” said Mahatma Gandhi. The death penalty is unjust and inhuman. Its continued use is a stain on a society built on humanitarian values, and it should be abolished immediately. Even the architect of the Constitution, Babasaheb Ambedkar, admitted in the Constituent Assembly that people may not follow non-violence in practice but “they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can.” With this in mind, he said, “the proper thing for this country to do is to abolish the death sentence altogether.”
ARGUMENTS IN FAVOUR OF THE DEATH PENALTY:
- Deterrence: Proponents of capital punishment believe that fear of death deters people from committing crimes.
- Prevents Recurrence of Violence: Supporters of capital punishment argue that use of the death penalty could actually reduce the number of violent murders by eliminating some of the repeat offenders.
- More Humane than Life Imprisonment: It is argued that making the person suffer by rotting in jail for the rest of his life is more inhumane than execution.
- More Economical than Life Imprisonment: Life imprisonment costs a lot to the tax payers. Apart from the housing and feeding of prisoners, a lot money and time is wasted on numerous appeals by the prisoners.
- Guilty cannot ever kill again: It is often argued that Capital Punishment helps society by preventing the guilty by killing them.
- Chances of mistake by the Judiciary are almost negligible: Firstly, the Apex Court has confined the imposition of capital punishment to the rarest of rare cases so that few people, after long careful proceedings, are awarded death penalty. Secondly, the processes of ascertaining guilt and awarding sentence are separated by distinct hearings. The sentence awarded by the Session Courts is subject to automatic confirmation by the High Court of the concerned state.Even thereafter, these cases are subject to an endless procession of clemency appeals, reprieves and pardons, etc. under Articles 72 and 161 of the Constitution of India. This eliminates even a single atom of judicial error, which might have remained after such a long purification process.
ARGUMENTS AGAINST THE DEATH PENALTY:
- Violation of Human Rights: The strongest argument against capital punishment is that it violates human rights. Those in favour of abolition of capital punishment believe that it is immoral to take human life. The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
- Chance for Reform: Abolitionists argue that the criminals should be given a chance to reform. He/she should be required to compensate the victim’s family with his/her own income from employment or community service. By doing so the criminal pays back to the society as also to the victim and/or to the victim’s family.
- Doesn’t Deter Crime: Cesare Beccaria wrote that capital punishment is founded on vengeance and retribution, and not on reformation of the criminals and prevention of future crimes, which is the purpose of punishment, i.e., the deterrence argument. There is considerable evidence to support this argument. Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. As recently stated by the General Assembly of the United Nations, “there is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.
- Miscarriage of Justice: Death penalty is irrevocable and there is every chance of an innocent getting death penalty. A judgment being given by human beings based on evidence produced in courts, the possibility of human error cannot be ruled out and the irreversibility of death penalty makes it dangerous and opposed to the principles of proportionality.
- The risk of executing innocent people exists in any justice system: There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.
- The arbitrary application of the death penalty can never be ruled out: The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.
- Public opinion is not a major stumbling block for abolition: Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedents where gross human rights violations had had the support of a majority of the people, but which were condemned vigorously later on. It is the job of judiciary and leaders to underline the incompatibility of capital punishment with human rights and human dignity.
- Moral Grounds: By allowing death penalty morally nothing is achieved except more death, suffering and pain. Secondly, why should a person be allowed to die a quick, almost painless death if he murdered another person violently? Instead he must languish in prison up to his natural death. In fact, if the social values really mean that killing is wrong, then the society must abolish death penalty. Death penalty legitimizes an irreversible act of violence by the state.
INDIAN SCENARIO: In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it is to be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India. Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. Asian Centre for Human Rights (ACHR) in its report “The State of Death Penalty in India 2013” stated that as per the records of the National Crimes Records Bureau (NCRB), Ministry of Home Affairs, Government of India, a total of 1,455 convicts or an average of 132.27 convicts per year were given death penalty during 2001 to 2011. “This implies that on average one convict is awarded death penalty in less than every third day in India. The rarest of rare case doctrine for application of death penalty has become routine. Death penalty is no longer the exception but the rule,” said Suhas Chakma, coordinator, National Campaign for Abolition of Death Penalty in India and Director of ACHR.
- Put an end to the spurious doctrine that death penalty is justified only in the “rarest of rare” cases. Today, the country stares at anarchy generated by different factors—generalized lawlessness due to a breakdown in enforcing law and the ever-present danger of terrorism both of domestic and foreign origin. To say that a “rare” remedy cannot work against these widespread maladies is a travesty.
- Create a permanent or periodically instituted judicial sentencing commission that prescribes sentencing guidelines that will be binding on trial court judges. In case higher courts overturn the sentencing decisions of lower courts, they should be asked to provide clear, explicit and transparent reasons for doing so. Points of law or obscure judicial doctrines should have no role in such reversals. This body can revisit guidelines issued by it in the past in light of studies based on crime rates, empirically guided sociological enquiries into criminal behaviour and other scholarly endeavours. This will bring certainty.
- To restore the deterrent value of the law, especially in terrorist offences, crimes against the state and sexual crimes against women, the time between the filing of a charge-sheet and pronouncement of a sentence must be reduced drastically. If this calls for a drastic overhauling of the procedural aspects of our judicial system, then so be it. In case where death penalty has been awarded by a court, a quick confirmation (or overturning) by a high court followed by a quick exhaustion of the appeals process is essential if faith in law has to be restored.
CONCLUSION: Human life is perhaps the most precious gift of the nature, which many describe as the Almighty. This is the reason why many believe that capital punishment should not be imposed irrespective of the nature and magnitude of the crime. Others think that death penalty operates as a strong deterrent against heinous crimes and there is nothing wrong in legislative prescription of the same as one of the punishments. But if death penalty has some deterrence effect then why the execution of Nathuram Vinayak Godse for assassination of none other than the father of the nation, Mahatma Gandhi, has not acted as a deterrent against assassination of many prominent political leaders including former prime ministers Indira Gandhi and Rajiv Gandhi, former Punjab chief minister Beant Singh, MP Lalit Maken and many other prominent political leaders. There is no scientific or empirical basis to suggest that death penalty acts as a deterrent against any crime. Even Krishna Iyer J. conceded in Rajendra Prashad’s case that death penalty may be awarded where the killer is such a monster or a beast that he can never be reformed. The reason generally advanced for retaining the death penalty is protection of society. It means that the criminal is exterminated and got rid of once for all. But it must be remembered that it is not by the fear of death but by generating in the community a sentiment of horror against killing that we can hope to deter offenders from committing that act. In the end, researcher would like to cite a quote by J.R.R. Tolkien, “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.”