By Deepak Mehta:
“To take a life when a life has been lost is revenge, not justice” – Desmond Tutu
“What says the law?
You will not kill.
How does it say it?
By killing!” – Victor Hugo, author of Les Miserables
We have entered the 21st century but the impressions of a primitive age are still present in our world and they are reflected when it comes to the punishing of a criminal in the form of his/her execution commonly known as the death penalty. Death penalty is a debatable issue today as since 1979, over 70 countries have abolished it for all ordinary crimes. Over 130 nations no longer have the death penalty in law or practice, and only a handful of governments carry out executions each year.
Under the Indian Penal Code, crimes that are punishable with a death sentence include treason, abetment of mutiny, perjury resulting in the conviction and death of an innocent person, murder, kidnapping for ransom and dacoity with murder. Following the Nirbhaya case, the Parliament changed the law to make a second charge of rape punishable with the death penalty. The Criminal Procedure Code requires special reasons to be given for awarding capital punishment and in 1980, the apex court had set the “rarest of rare” criteria in such cases.
As per NCRB, between 2001 and 2011, an average of 132 death sentences were handed down each year by trial courts across the country and during the same period, the Honorable Supreme Court has confirmed only 3-4 death sentences each year. The last two executions were of 26/11 Pak terrorist Ajmal Kasab in 2012, and Parliament attack accused Afzal Guru in 2013.
Although in India, the execution rate has fallen down to a commendable level, but the stigma of death penalty still looms large in our Law.
Every day, prisoners – men, women, even children – face execution. Whatever their crime, whether they are guilty or innocent, their lives are claimed by a system of justice that values retribution over rehabilitation. The death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life. Whatever form it takes – electrocution, hanging, gassing, beheading, stoning, shooting or lethal injection- it is a violent punishment that should have no place in today’s criminal justice system.
The death penalty is discriminatory. It is often used disproportionately against the poor, minorities and members of certain racial, ethnic and religious groups. It is imposed and carried out arbitrarily. In some countries, it is used as a tool of repression – a swift and brutal way of silencing political opposition. The death penalty is irrevocable, coupled with a justice system that is prone to human error and prejudice, the risk of executing an innocent person is ever present. Mistakes like that cannot be undone. The Universal Declaration of Human Rights – adopted by the UN General Assembly in December 1948 – recognizes each person’s right to life (Article 3) and categorically states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). The UN reaffirmed and strengthened its position against the death penalty in December 2007 when the General Assembly passed a resolution calling upon the member states to establish a moratorium on executions “with a view to abolishing the death penalty”.
There are certain myths in the society about the death penalty. Some of them are – death penalty reduces the crime rate, the threat of execution is an effective strategy in preventing terrorism, and the death penalty is fine as long as the majority of public supports it. But this eye for an eye approach will consequently make the whole world blind. This doesn’t end violence, but preserves it and starts a vicious circle.
In 2004, in the USA, the average murder rate for states that used the death penalty was 5.71 per 100,000 of the population as against 4.02 per 100,000 in states that did not use it. In 2003 in Canada, 27 years after the country abolished the death penalty, the murder rate had fallen by 44% since 1975, when capital punishment was still enforced.
Further, the people who aim at spreading terror in the society are least concerned about their own lives. The execution of these people will only make them a ‘martyr’ in the eyes of their sympathizers. And, when the administration fails to deliver a social structure sans crime, the politicians use the death penalty as a tool to cover up their failures of providing public security in the name of citizen’s safety. They reiterate that for a crime free society, majority of the population supports death penalty! The real picture is slightly different. This is illustrated by polls in the USA and other countries which show significant drops in support for the death penalty when life imprisonment without the possibility of parole is offered as an alternative. In the USA, a May 2006 poll by the Gallup Company found support for the death penalty dropped from 65 per cent to 48 per cent when life imprisonment without parole was offered as an option.
Death penalty may be used as a weapon to silence the voice of political opposition. In Japan, executions are typically held in secret with prisoners being informed just hours before they are killed and family members are given no prior notice. In China and Vietnam, information about the death penalty, such as the annual number of executions, is classified as a state secret. Calls from the UN to divulge this information have been met with steadfast refusal. This leaves the public in those countries without information and stifles debate around this important human rights issue. Logic would also dictate that such secrecy would lessen any alleged deterring effect that executions have. In Singapore too the situation is much the same. Singapore endorses the death penalty but keeps silent about how much it is used in the country. Controls imposed by the government on press and civil society organizations curb freedom of expression and are an obstacle to the independent monitoring of human rights, including the death penalty. Consequently, there is virtually no public debate about the death penalty in Singapore and the government has consistently maintained that capital punishment is not a human rights issue.
Some argue that it’s the most cost effective solution to violent crime. But, a society cannot condone violence and sacrifice human rights as a cost-cutting measure. The decision to take a human life should not rest on financial motives.
So, a civilized society must have a reformative instead of punitive approach towards criminals. The absence of death penalty will provide these criminals a chance to repent, reform and rehabilitate. When a criminal will come out of jail as a reformed citizen, he may be an example that might be able to deter others from criminal activities. Execution is a serious human rights issue and death penalty is not even digestible to some victims of heinous crimes and their relatives.
“To those who say society must take a life for a life, we say ‘not in our name’.” – Marie Deans, relative of a murder victim, USA.
Also read: The Nithari Case: Should A Mentally Ill Convict Be Hanged Based On A Torture Confession?