Tehelka Magazine, Vol 5, Issue 19, Dated May 17, 2008
|CULTURE & SOCIETY
Death To The
Retired Chief Justice, Delhi High Court
WORLD OPINION is now
strongly veering round to the abolition of the death penalty. In November
last, the UN General Assembly’s Third Committee adopted a moratorium on
executions with a view to abolishing the death penalty. India voted against
the resolution. Is it not shameful that the land of Gautam Buddha, Lord
Mahavira and Gandhi — who proclaimed, “I cannot in all conscience agree
to anyone being sent to the gallows. God alone can take life because he
alone gives it”— should present such a negative face against human rights
that embody the right to life?
The matter is to come
up before the UN General Assembly this year. India can still reclaim its
position as an upholder of human rights by abolishing the death penalty.
The rationale for
abolishing the death penalty are qualitatively different and were wisely
expressed by former President of Chile, Eduardo Frei: “I cannot believe
that to defend life and punish the person that kills, the State should
in its turn kill. The death penalty is as inhuman as the crime which motivates
The High Commissioner
for Human Rights, Louise Arbour, called the death penalty “a sanction
that should have no place in any society that claims to value human rights
and the inviolability of the person”.
Ban Ki-moon emphasised shortly after assuming office on January 11, 2007:
“I believe that life is precious and must be protected and respected and
that all human beings have the right to live in dignity. International
law affirms these values. I recognise the growing trend in international
law and in national practice towards a phasing out of the death penalty.”
In General Comment
No. 6 on Article 6 of the International Covenant on Civil and Political
rights, the UN Human Rights Committee has stated that Article 6 “refers
to abolition [of the death penalty] in terms which strongly suggest… that
abolition is desirable.”
Over the years, multi-nation
forums have adopted four international treaties providing for its abolition:
the Second Optional Protocol to the International Covenant on Civil and
Political Right, aiming at the abolition of the death penalty, adopted
by the UN General Assembly in 1989; Protocols No. 6 and No. 13 to the
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights), adopted by the Council of Europe
in 1982 and 2002 respectively; and the Protocol to the American Convention
of Human Rights to Abolish the Death Penalty, adopted by the General Assembly
of the Organisation of American States in 1990.
So far, 133 countries
have abolished the death penalty in law or in practice. Only 25 countries
carried out executions in 2006. There were 1,591 recorded executions that
year compared to 2,105 in 2005.
The Rome Statute of
the International Criminal Court (ICC), which has been ratified or acceded
to by 105 states, excludes the death penalty from punishments which the
court is authorised to impose, even though the ICC has jurisdiction over
crimes against humanity, genocide and war crimes.
In 1996, the then
South African President, Nelson Mandela, said, “It is not because the
death sentence has been scrapped that crime has reached such unacceptable
levels. Even if the death sentence is brought back, crime itself will
remain as it is.”
The South African
Constitutional Court unanimously ruled in 1995 that the death penalty
for murder violated the country’s constitution.
The death penalty
has been abolished since 1965 in the UK. Membership of the European Union
is dependent on having no death penalty. Italy, too, has abolished it
in the belief that retaining the death penalty does not automatically
Apart from human rights,
pragmatism and practical wisdom dictates against the retention of the
death penalty. People are usually silenced by the pro-capital punishment
lobby that it is only given in the “rarest of rare cases”, as decided
by the Supreme Court of India, suggesting that since the law propounded
this restriction, the number of executions has considerably reduced. Unfortunately,
facts belie this, because ironically after the rarest of the rare doctrine
was propounded in 1980, the Supreme Court confirmed the death penalty
in 40 percent cases during 1980-90 whereas the figure was 37.7 percent
during 1970-80. For the high courts, the death sentences confirmed rose
from 59 percent during 1970-80 to 65 percent during 1980-90.
THE VOCIFEROUS opposition
to the abolition of the death penalty springs from the myth that abolition
could embolden would-be murderers. But facts show otherwise. In 1945-50,
the then State of Travancore (later merged in Kerala), which had no death
penalty, saw 962 murders, whereas during 1950-55, when capital punishment
was revived, it recorded 967 murders.
In 1997, the Attorney
General of the US state of Massachusetts said, “there is not a shred of
credible evidence that the death penalty lowers the murder rate. In fact,
without the death penalty, the murder rate in Massachusetts is about half
the national average.”
A survey released
in September 2000 by The New York Times found that during the
previous 20 years, the homicide rate in the American states having the
death penalty was 48 percent to 101 percent higher than in the states
without the death penalty.
Whenever death penalty
is used, there is a grave risk that individuals are executed for crimes
that they did not commit. Prisoners have been executed despite strong
doubts about their guilt. Others have been freed after re-examinations
of their cases showed that they had been wrongly convicted.
In the US, 124 people
condemned to death have been released since 1973 because they were found
to be innocent or their convictions rested on insufficient evidence.
former President APJ Abdul Kalam had urged the home ministry to review
20 such cases. There are 45 prisoners whose mercy petitions are pending,
12 since the time of his predecessor, KR Narayanan. The pending of such
cases against condemned prisoners is itself an act of inhumanity.
The belief that the death penalty
lowers crime is indeed a myth, as the evidence shows. It is high time
we did away with it.