Keywords: death penalty, abolition, capital punishment
Abolition of Death Penalty - Tarunabh Khaitan & Vasuman Khandelwal 1. INTRODUCTION
Death penalty seems to be a dead issue. No one talks about it. Media is unconcerned. Unlike the United States, it is not the issue of political contention arousing strong emotions.
So why have we decided to revisit a topic that is seemingly uninteresting at its best, and a non-issue at its worst?
We firmly believe that till the state continues to take away lives the issue of death penalty cannot be brushed aside. However, some recent developments have underlined the need to talk about it now.
Firstly, The National Commission for the Review of the Working of The Constitution has been constituted. One of the main reasons why the Supreme Court upheld death penalty was the tacit consent accorded to the sentence by the constitution. It shall be worthwhile to draw the attention of the reviewers to this question.
Secondly, the sentencing of twenty-six people to death by the Special Court in Rajiv Gandhi Assassination case and upholding of death sentence of four of them by the Supreme Court is nothing short of shocking. Most of the accused were charged under Criminal Conspiracy and it was more than clear that awarding death sentence for such a crime was only because the victim was a former Prime Minister.
Thirdly, the move in the global scene is overwhelmingly towards abolition. How long can India remain insulated from these winds of change is yet to be seen. A very recent manifestation of this development in the International thinking is the Statute of the International Criminal Court, which does not carry death sentence as an awardable form of punishment.
This project seeks to give a brief history of Indian and International abolitionist movements and the present status of death penalty. Then, it gets into the abolitionist-retentionist debate and analyses the issues at hand. It shall be worth acknowledging here that although due care has been taken to maintain the objectivity of the paper; however it has its limitations given the strong ideological stand of abolition the researchers believe in. Hopefully, this very consciousness of a possibility of bias will help us contain the bias.
We would also like to put on record our acknowledgement for Ms. Nitya Ramakrishnan, Mr. Ashok Aggrawaal and Mr. Anuj Bhuwania, advocates, whose help was material in writing this project.
This paper as already stated is to revisit the issue of death penalty and see whether its retention is justifiable and viable. It also seeks to encompass the present international and national positions on death penalty.
As far as coverage of the various positions on death penalty is concerned, more is descriptive. The argument between the retentionist and the abolitionist positions is by and large analytical.
As already mentioned, the project is limited by the fact that the researchers strongly believe in the abolitionist stand and fear therefore that it might have told on the objectivity of the paper.
Various sources of data like cases, statutes, Internet, conventions, internet etc. have been used.
A uniform mode of citation has been followed throughout.
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 Criminal Procedure. The Law Commission, in its 35th 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 Law Commission recommended against listing exhaustive principles for clemency, but gave examples of situation- such as murder without premeditation and mental abnormality of the offender- in which clemency would be appropriate. The Lok Sabha specifically discussed the abolition of death penalty last in 1983.
Capital punishment is included as a penalty in a number of legislative acts, such as the Indian Penal Code and penalty provisions of national security legislation. Under the Indian Penal code, eleven offences may be punished by death. These offences are (1) abetting any death eligible offences , waging war against the government , abetting mutiny by a member of the armed forces , fabricating false evidence with a intent to secure conviction of another person for a capital offense provided that such a conviction occurs , abetting the suicide of a child or an insane person etc. A death sentence may also be imposed for a number of offenses committed by members of the armed forces under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1956.
In recent years, Parliament has drastically extended the scope of the death penalty. The Terrorist and Disruptive Activities (Prevention) Act (TADA), which was first enacted in 1985 and then re-enacted in 1987, empowers special courts to impose the death penalty for certain broadly defined “ Terrorist” acts. These courts utilize special procedures in which the rights of the accused are dramatically curtailed. Despite Parliament’s decision to let TADA lapse in 1995, a large number of detainees are still held under the Act pending completion of their trials. Thus, a person charged with an offense under TADA before 1995 will continued to be tried under its laws and procedures, and may be sentenced to death if convicted. Additionally, Parliament is considering new legislation, Prevention of Terrorism Bill, which would reintroduce many aspects of the TADA regime.
Use of the death penalty has also been extended through other legislation. In 1987, the Government passed the Commission of Sati (Prevention) Act, which allows the punishment of death for any person who either directly or indirectly abets the commission of Sati. In December 1998, the Narcotics, Drugs & Psychotropic Substances (Amendment) Act introduced the death penalty as a punishment for financing or engaging in the production, manufacture or sale of narcotic or psychotropic substance of specific quantities (e.g.. opium-10kgs; cocaine-500gms.) after previous conviction. In 1989, the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act introduced the death penalty as punishment for fabricating or providing false evidence leading to the conviction or execution of an “an innocent” member of a scheduled caste or scheduled tribe. More ever, further extensions appear imminent. In April 2000, the Government announced that it would consider imposing the death penalty for individuals convicted for rape. The only question is whether sufficient political support can be mustered at a particular moment to pass new legislation making another offense punishable by death. Significantly, In Mithu v. State of Punjab a Constitutional Bench unanimously invalidated Section 303 of IPC, which provided for mandatory death sentence for murder committed by a life convict.
In Rajendra Prasad v. State of U.P. , it was held that the special reasons necessary for imposing a death penalty must relate not to the crime but to the criminal. It could be awarded only if the security of the state and society, public order in the interest of the general public compelled that course.
Three developments subsequent to the judgment in Jagmohan prompted a renewed challenge in Bachan Singh v. State of Punjab . The Cr.P.C. was reenacted in 1973 and s. 354(3) required that the judgment recording conviction for an offence punishable with death should state special reasons for such sentence. The second reason was that India had been signatory to the International Covenant for Civil and Political Right which was a significant step in international scene for the abolition of death penalty. Thus death sentence became an exception not the rule as far as punishment for murder was concerned. Thirdly, the decision in Maneka Gandhi v. Union of India required that every law for punitive detention both in its procedural and substantive aspects must pass the test of reasonableness on a collective reading of Articles 19, 14 and 21.
The international community increasingly called for states to limit and, ultimately, eliminate use of the death penalty. While capital punishment has not yet been prohibited under international legal law, various United Nations human right organs and bodies have, on several occasions, reaffirmed the growing international consensus in favour of the abolition 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 10th December 1948. The conclusion from reading Article 3 of the Universal Declaration of Human Rights is indeed that respect for human life is non-negotiable. The drafters of Universal Declaration created an original norm right to life but with meaning going far beyond, a mere right not to be deprived of life except with due process. While negotiations were going on for the treaty, the death penalty was viewed virtually unanimously as a necessary evil, one whose existence could not be justifies on philosophical or scientific grounds. The relevant articles of the charter are:
3) Everyone has the right to life, liberty and security of person. 5) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The development of international law on the issue has evolved dramatically since India wrote its constitution. At the end of World War II, the statutes for the Nuremberg and Tokyo trials included the death penalty as an option for the punishment and many of those who found guilty were executed. The prevailing sentiment at the time at the time was that the perpetrators of the most heinous crimes deserved to be sentenced to the “ultimate punishment.”
However, progressive developments since then have completely changed the prevailing sentiment and the results. In the 1993 statute establishing the International Criminal Tribunal For the former Yugoslavia and the 1994 statute for the International Criminal 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 Criminal Court. After considering objections raised by some states, the international community decided to reject the use of death penalty. With 120 nations of the world signing the final act and only seven against, the statute for International Criminal Court represents the modern expression of international norms on the use of the death penalty. Moreover, the fact that these international tribunals have jurisdiction over the most heinous crimes imaginable (e.g. genocide, crimes against humanity) makes the exclusion of the death penalty an especially important development.
The desirability of the abolition of death penalty has been strongly recommended by the United Nations since 1977. In resolution 32/61 of 8 December 1997, the General Assembly stated: “the main objective to be pursued in the field of capital punishment is that of progressively restricting the member of offenses for which the death penalty may be imposed with a view to the desirability of abolishing this punishment.”
In 1997, the UN Commission on Human Rights for the first time adopted a resolution calling on all states that had not yet abolished the death penalty to progressively restrict the number of offenses for which the death penalty could be imposed. In each of the consecutive years, the Commission on Human Rights has passed similar resolutions. Since 1998, the Commissions resolutions have also urged retentionist states “to establish a moratorium on executions, with a view to completely abolishing the death penalty.”
One of the most important human rights treaties that India has ratified, the International Covenant on Civil and Political Rights (ICCPR), also supports the progressive movement towards abolition. 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 eventual abolition of death penalty. The article 6 of the covenant states:
(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life (2) In countries which have not abolished the death penalty, sentenced of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present covenant and to the Convention on the Prevention and Punishment of the crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. (3) When deprivation of life constitutes the crime of Genocide, it is understood, as nothing in this article shall authorize any state party to the present covenant to derogate in any way from any obligations assumed under the provisions of the Convention on the Prevention and Punishment of the crime of Genocide. (4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. (5) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. (6) Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any state party to the present Covenant.
The African Charter on Human and People’s Rights also goes in a long way for the abolition of the death penalty. Article 4 reads as: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his rights.
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. Even going by the social contract theory, people came together to form a society and agreed to be governed by a state giving it some of their rights. But, they did retain certain basic and inalienable rights, right to life being the most important 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 kill 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.
Justice Bhagwati reiterated this point when he emphasized the principle of proportionality embedded in articles 14, 19 and 21. According to this principle, if a law prescribes a sentence disproportionate to the offence it is liable to be struck down. The utilitarian view of deterrence has nothing to do with proportionality. Also implicit in article 21 is protection against torture and cruel and inhuman treatment.
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.
While testing death penalty on the touchstone of the constitution, the majority in Bachan Singh said it was very much envisaged by the constitution makers, as it is implicit in the language of the articles 21, 72 and 169. To this Justice Bhagwati gave a fitting reply that since the constitution is not a transient document but envisages thing for a long time, it was just a space provided to cater to a future need as and when it arose. Further, even if the intentions were otherwise, without prejudice to the enlightened opinion of the constitution makers, it is humbly submitted that they cannot continue to rule from their graves. As Granville Austin points out, the constitution is foremost a social document , and hence needs to be interpreted in the light of contemporary social and human rights values and jurisprudence. In a moving society, a constitution cannot afford to be static.
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 finality. Once the soul is divorced from the body; no human agency can bring about a reunion.
However, the Supreme Court, speaking through its majority in Bachan Singh’s case, decided to think otherwise. It said that this is an argument to reform the judicial system rather than do away with death penalty. Speaking again from its fanciful world of make-belief, the honorable court led itself to believe that Indian legal system is quite sophisticated to eliminate this risk. Justice Bhagwati in his dissent rightly acknowledged the limits to human infallibility.
There is no automatic right of appeal to the Supreme Court where death sentence awarded by a trial court gets confirmed by the High Court. The only remedy is to file a Special Leave Petition within sixty days of the receipt of the certified copy of the order. While it has been a general practice that the Supreme Court will not summarily reject a special leave petition where it involves a death sentence, a recent instance makes real such possibility.
The main theories of sentencing are Retribution, Just Deserts, Incapacitation, Deterrence and Rehabilitation.
Retribution appears to the instinct of revenge in human beings. Retribution is an expression of solemn disapprobation of societal feelings . It is a mark of detestation and abhorrence of the crime. But with the new developments in criminal justice system, retribution as a goal of sentencing policy is increasingly being seen as uncivilized and barbaric. Death penalty is just another manifestation of this inhumanness. The Supreme Court however sanctioned retribution as a penological goal while upholding the constitutionality of the death penalty. However, in his dissent Justice Bhagwati asserted that if the justification of a sentence lies in revenge, it shall be violative of article 14 and 19 of the Constitution. Today the move is from retributive to restorative justice, as was evident by the experience of Truth and Reconciliation Commission in South Africa.
But in recent times, just deserts as a new avatar of retribution is seen as more acceptable. The focus here is shifted from the expression of social revulsion to the emphasis that the accused deserves the punishment. This weapon has come handy to the retentionist to claim that since the convict killed, it is only just to kill him or her. 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 finality. But what is more important to be considered is whether such strict adherence to this goal is desired. Incapacitation is also served by imprisonment or probation for the desired period of time. Death Penalty assumes that the convict is so much beyond reform that incapacitation forever is the only option. This recidivist argument however sends the rehabilitative goal of penology down the drain. Current criminal justice system has rejected the argument that any person can reach a point from where there is no turning back. It harps on rehabilitation and reformation of the criminal rather than his or her elimination.
Deterrence is the lifeblood of the arguments for the retention of death penalty. The theory of deterrence states that shows punishment is the exemplary course of action, which shall follow on the commission of crime. It follows from the libertarian thinking which assumes human beings to be rational, all their acts being a result of a thoughtful cost benefit analysis. The punishment is the cost involved, while the motive served by the crime the benefit. Therefore by increasing the cost, one can tilt the balance against the commitment of crime. . However, sadly or otherwise, human beings are not exclusively rational. It is not only the fear of punishment, which appeals to one’s instinct, human conduct is also guided by emotions like love, lust, greed, loyalty, revenge etc. which do not strictly fall into the rational framework of liberalism. For capital punishment to be really intimidating human nature would have to be different; it would have to be as stable and serene as the law itself. But then, human nature would be dead.
There are basically two types of murderers, one who commit the crime in the impulsive heat of passion and another who planned it out in cold blood. In the first case, the act is committed without any heed to the consequences. Obviously, the rationality based deterrence theory would not work here. In the second case, the planning process also involves how to circumvent the law and not get caught. The entire act is committed with the presumption that the offender will never be caught. Obviously in this case, it is the certainty and efficiency of investigation, prosecution, and conviction are the real deterrence rather than the type of punishment.
Of course, we are not denying the fact that life is precious to everyone and neither we are stating that the death penalty is no deterrent at all. But, however, what we are saying is that there is no way one can show in real terms that death penalty serves a greater deterrent than life imprisonment. This has been substantiated by the fact that most countries, which have abolished death penalty, did not see any perceptible or significance increase in the crime rate. In any case, the onus to prove otherwise lies on the state, which has to justify the taking away of a life.
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 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. The rule of precedent with regard to these criteria is observed more in its breach and case laws offer no guideline. A study of cases on death penalty shows a wide degree of incoherence in aggravating and mitigating factors. 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 Assassination Case sentenced all the twenty six convicts to death including people whose connection with assassination 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. Of the three judges, who wrote separate opinions, Thomas J., felt that Nalini did not deserve the maximum penalty. The reason that weighed with him that she was an elderly and educated woman; she was led into the conspiracy to assassinate Rajiv Gandhi by playing on her feminine sentiments; she played no dominating role; she was persistently brain washed by Murugan who became her husband and then the father of the child; she was made to believe in the virtue of offering help to the task undertaken by the conspirators. Another consideration was that she was the mother of a little female child who had to be saved from orphan hood.
However the other two judges, Wadhwa J. and Quadari were of the view that Nalini did not deserve any leniency and the final order was that she too be sentenced to death. The fact that she was an educated woman, which Thomas J. took to be mitigating, was considered an aggravating factor by other judges. The upshot of the discussion on the application on the application of the “rarest of rare” test is that there is no consistent or reliable pattern under will exercise the discretion. The gnawing uneasiness that the same case if heard by a different set of judges may have resulted in a different punishment will always rankle in the minds of those unsuccessful death row convicts facing the noose. There is no standard procedure or judicial guideline for the confirmation of death penalty sentenced by the higher court. Quite regrettably, though the Supreme Court speaking through its majority in Bachan Singh’s case came to the conclusion that laying down of any guideline with respect to the award of death penalty is humanly impossible and judicial discretion inevitable. Once again the highest court of justice decides to work from its ivory tower of theoretical abstraction and refuses to see the stark ground realities.
A very interesting case that demystifies these notions of convenience of our judges is Harbans Singh v. Union of India . The facts are thus: Three people J, K and H were sentenced to death by the trial court for playing an equal part in jointly murdering a family of four persons. The sentence of all the three was confirmed by the High Court. Each of them moved to the Supreme Court by different Special Leave Petitions before three separate benches. J’s petition was dismissed and he was actually executed. K’s petition was allowed and his death sentence was commuted to life imprisonment. H’s petition was also dismissed. He filed a review petition, which was also dismissed, and the Executive refused clemency. He then moved another petition before the Supreme Court bringing to light this arbitrariness. The Supreme Court recommended the President to commute his sentence.
The moot point in this case is how could three people convicted for exactly the same offence committed jointly meet different fates. Chandrachud J. while lamenting the death of J, said; “The fate of Jeeta Singh has a posthumous moral to tell. He cannot profit by the direction which we propose to give because he is now beyond the process of human tribunals.”
This case also emphasizes the ironic finality of the death sentence, which has already been discussed.
The most common victims of the death penalty are the have-nots, the under privileged of the society. This phenomenon pervades throughout the globe, whether it is the Afro-Americans in the United States or the poor in India. It is actually quite logical. A competent lawyer is usually able to save a person from going to the gallows, irrespective of the crime committed or the law in the books. But of course, a competent lawyer comes with a price the poor and the underprivileged cannot afford. Left to the mercy of inefficient state legal aid boards, these under-represented and ill-represented people finally grope their ways to the gallows. In post independent India, there is hardly been an affluent person who has been hanged. So, being born with a silver spoon in mouth insures oneself not only from hunger and poverty, but also from this legalized murder. 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. This was also the dissenting opinion of Justice Bhagwati in Bachan Singh’s case. Justice Krishna Iyer in his eloquence, justly observed: “He might have been a tortured child, and ill-treated orphan, a jobless starveling, a badgered brother, a wounded son, a tragic person hardened by societal cruelty or vengeful justice, even a Hamlet or a Parasurama…maybe, the convict’s poverty had disabled his presentation of the social milieu or other circumstances of extenuation in defense…”
It just brings out the fact that an execution of death penalty is not one isolated incidence. It will be foolish to believe that society will be unaffected by any such legitimate killing. It shows the respect, which the minority community gets, which in terms of human rights jurisprudence, is the benchmark of a legal system’s respect for the human rights.
The painfully long judicial process is not unique to death penalty cases alone. But what makes it stand 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.
An example of the appalling process is Govindasami’s case. Govindasami was accused of having killed five people over a property dispute in 1984. The trail court acquitted him in 1988 on the ground that the prosecution’s case has not been roved beyond reasonable doubt. Following the acquittal, Govindasami got married had two children. For ten long years nothing happened. During this period he was never involved in any other crime. He lead a respectful, quite life with his mother, wife and children. As his fellow villagers reported, he led god-fearing devout life after his acquittal. Ten years after his acquittal in 1998, the Madras High Court set aside the acquittal, convicted him for murder and sentenced him for death. The Supreme Court upheld the death sentence in spite of its own verdict at another occasion that if the two lower courts have differed on the issue of conviction itself, the sentence should not be that of death. The courts also did not take into account as mitigating factors the fact that the murders were a response to the harassment of the accused and his widowed mother by his economically powerful uncle who forcibly obtained his signatures on legal papers to grab his inherited land. Since then thrice was the date of execution fixed and thrice the executive stayed it. Each time he was weighed his height and length of neck measured etc., to prepare for the mock hanging, of course with his full knowledge. Till date, he does not know whether his mercy petition will finally be accepted or rejected. It must really be requiring super human emotional strength of surviving the dilemma while going to sleep each night- ‘will the next morning bring the news of my horrendous death?’
“The day before an execution, the prisoner goes through a harrowing experience of being weighed, measured for length of drop to assure the breaking of neck, the size of the neck, body measurements etc. When the trap springs, he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangled to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates and droppings fall to the floor while witnesses look on. The prisoner remains dangling from the end of the rope for eight to fourteen minutes before the doctor who has climbed up a small ladder and listens to his heartbeat with a stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged person and holds the body steady because during the first few minutes there is usually considerable struggling in an effort to breathe.”
Even the Law Commission found it unable to decide which was the most humane (sic) way of killing and hence as a default measure recommended the retention of hanging. The Supreme Court in Deena v. Union of India accepted this view. By saying that “The system of hanging is as painless as is possible in the circumstances…it involves no barbarity, torture or degradation.” It is submitted that there can be no humane way to kill. The condemned person dies a thousand deaths by mere anticipation of the impending death. It is only ironical that extreme precautions are taken in prisons where a person on the death row is housed so that he or she does not commit suicide! Of course, the knowledge of impending death can drive the most iron-willed person to demand immediate death to be released of the insufferable torment. At least the Greeks were more humane in this regard insomuch as they gave a choice to the prisoner to commit suicide by drinking poison or be killed. If whipping was taken out of statute book for being cruel and inhuman, how can death penalty continue to exist? The South African Constitutional Court recently took the question of the cruelty and inhumanity involved in killing seriously in State v. T. Makwanyane . In this judgment the court unanimously held that any method of the execution of death penalty to be cruel, inhuman and degrading and is therefore unconstitutional.
The victims of the existence of death penalty on statutes are not only the ones immediately affected by it. It has larger socio political ramifications. At a very basic level, the very acceptance of the fact that human life is dispensable has a dehumanizing effect on the entire system. Issues like death penalty and encounter deaths become mere issues, far removed from the human element involved. This happens because we stop seeing the individuals involved. All that we see, or is rather shown to us is that there are some bad guys out there to destroy the society who are best done away with.
With such a reasoning constantly fed into us, the process by which this extermination of life takes place no longer remains important. So, news items like ‘Naxalite killed in police encounter’ usually draw a response like ‘served him/her right’.
Thus, very subtly but quite clearly, the existence of death penalty on the statute grants certain legitimacy to illegitimate forms of state killing of people who are usually branded as terrorists, insurgents, naxalites, anti-nationals, criminals etc. If nothing else, at least it absolves the state of the liability of justifying its actions. The police and other armed forces become supra judicial authorities with no accountability whatsoever.
Once the law itself decides to respect the dignity of human life, hopefully, the taking away of life illegitimately will increasingly become difficult.
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. We, however, are of the opinion that the afore-mentioned discussions might have helped a little to expose the myth that death penalty affects only a small number of people. The entire issue has much wider socio, ethical and political ramifications.
Further, we have moved far beyond the utilitarian game of numbers in the entire minority-rights perspective that has emerged today. 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.
“ It seems to me then, when the state executes a man or a woman, the distinction between it on the one hand and the Nazis on the other gets blurred: the same kind of stupidity, the same hatred of other, and will to destruction, the same disrespect and intolerance of the body. The only difference lies in the number of persons liquidated.
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 eliminated. 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.
“Upon the gallows hung a wretch To sullied for the hell to which The law entitled him. As natures curtain fell The one who bore him tottered in For this was woman’s son ‘Twas all I had’ she stricken gasped. O, what a livid boon.” (Emily Dickenson)
Feminists attribute all forms of violence, whether it is war or death penalty as the masculine way of thinking. As a feminist puts it, ‘ we know that men are violent not because of any biological predisposition, but rather because violence is inculcated in them, and is honored and praised as a sign of genuine masculinity.’ Execution as a form of punishment is just another manifestation of this male way of thinking.
Since it is the woman goes through the major part of the reproductive activities and child raising, she understands the value of life. Had the criminal justice system thought from the feminine point of view, it would not have ignored the fact that there are women who have given birth to those who shall be killed; and every time a person dies on the death row, his or her mother also dies. Death penalty is a devaluation of motherhood as reproductive work and life sustaining activity. It also confers on state the same right as that of the patria potestas of the Roman law who had the right over his children’s life.
Basically the feminist opposition to death penalty is a vehement delegitimation of a system, which sees violence as the only fitting reply to violence. It is also the denial of the cold rationality, which decides to sacrifice a life either as a scapegoat to achieve a larger goal or to avenge a wrong. It challenges the masculine reason of law with a feminine emotion, which not only thinks but also feels. The entire critique is against the paramountacy of reason and the rational legal system, which robs it of the human element. This system does not recognize the pain involved in the killing, neither does it take into account the plight of the family of the condemned. While understanding the loss of the family of the victim who was murdered by the convict, it believes that one mother’s tears cannot be the panacea to another mother’s grief.
The feminine model of justice believes more in restoration and reconciliation rather than retribution. A recent example of this was a World Court of Women held on March 8th 2001 in South Africa against the violence of globalization. Vandana Shiva calls attention to the events of our times: “Cows in Europe being subject to BSE disease, millions of animals burdened due to increased trade; Farmers in India committing suicide in thousands; taliban destroying heritage; fifteen year old boy shoots his classmates in California; ethnic cleansing” ………the list is endless. All these are wars of peacetime and the last expression of violence in a system, which has put profit above life, commerce above justice, ethics and ecology as violent technologies. The women’s court declared the patent on life etc. immoral and illegal. They should not be respected because they violate universal principle of reverence of life. The women declared: ‘We will not live by rules that are robbing millions of their lives…we will not allow greed and violence to be treated as the only values to shape our cultures and life…we know that violence begets violence, fear beget fear, peace begets peace and love begets love. Women’s worlds are worlds based on protection- of our dignity and self respect, the well being of our children, of the earth…”
The above example demonstrates the so-called feminine way of looking at things. It celebrates life and the values of peace, forgiveness, solidarity, compassion, and healing associated with it. This reverence for life declares laws granting death as tools of committing crimes against humanity.
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. Neither cold reason nor compassion helps it stand. It is the ultimate denial of the value of human life, the final demeaning of 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 final 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.
Vandana Shiva, “Violence of Globalization”, The Hindu, Magazine, March 25, 2001 at VII.
Dossier for the National Conference against Death Penalty, New Delhi 22nd -23rd July 2000.
Granville Austin, The Indian Constitution: Cornerstone of the Nation (New Delhi: Oxford University Press, 1998).
Thirty-fifth Report on Capital Punishment, Vol I, Law Commission of India, 1967.
William A. Schabas, The Abolition of the Death Penalty in International Law, Second Edition (Cambridge: Cambridge University Press, 1997).
Death penalty is a non-issue for most of us. By being born in well-to-do families, we have insured ourselves against the possibility of infliction of death penalty on us. By being influential, may be our friends in the police would not let the case reach the courts in the first place. By sitting in lawyerly circles, we can command an army of lawyers to help us slip through the hang-person’s noose. If all these fail, there on the bench sits a judge from similar social backgrounds as ours. How can our brethren judge sentence us to death? Supposing s/he does, even then we can use our political connections to get executive clemency. Of course, the gallows are quite far from us.
We shall never become terrorists and naxalites – for the simple reason that we don’t need to. We don’t have landed oppressors to oppose. Neither are we suppressed by the state that we need to pick up the arms. We don’t have personnel of the state raping us and torturing us that we may need to fight. All of us lead quite comfortable lives, you see.
But its not that we don’t commit crimes that deserve death penalty at all. Most of the brides are burnt in our homes. Property disputes also lead us to require a person or two killed. Our economic and environmental scandals cause mass deaths. But of course we get away scot-free, may be with the payment of a fine (of course we can buy lives). Our instincts of greed and revenge are not less than those of the poor. Only that we are more sophisticated – and that makes all the difference!