Death To The Death Penalty

RAJINDAR SACHAR
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 it.”

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”.

UN Secretary-General 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 generally 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 reduce murders.

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.

Expressing concern, 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.