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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL ARTICLE

ABOLISH DEATH PENALITY

Justice Rajendra Sachar

The call of former President Dr. A.P.J. Abdul Kalam to the Government of India to hold public consultation on the desirability of retaining death penalty has not received adequate media attention. This is unfortunate because we can no longer play hide and seek game with the straightforward question of abolition of death penalty.

Great leaders of the world have voiced their opposition to death penalty. Gandhiji said; "I do regard death sentence as contrary to ahimsa. Only He takes it who gives it."

Freedom fighter and Socialist leader Jayaprakash Narayan said, "To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes."

Dr. Ambedkar during the Constituent Assembly debates said, "I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether."

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".

President Eduardo Frei of Chile said; "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."

Apart from human rights there is pragmatic and practical wisdom which dictates against retention of death penalty. Our people are usually talked into silence by the pro capital punishment lobby that it is only in "rarest of rare cases" as decided by the Supreme Court that death penalty is given, suggesting as if since the law propounded this restriction, number of executions have been considerably reduced. Unfortunately facts belie this, ironically, after the rarest of rare doctrine was propounded in 1980, the Supreme Court confirmed death penalty in 40 per cent. of cases in the period 1980- 90 whereas it was 37.7% in 1970-80. For the High Courts the figures confirming death sentence rose from 59% in 1970-80 to 65% during 1980- 90.

The vociferous opposition to abolition of death penalty springs from myth that it can lead to increase of murders. Facts show otherwise. Thus, in 1945-50 the State of Travancore, which had no death penalty, had 962 murders whereas during 1950-55, when death sentence was introduced, there were 967 murders.

In Canada, after the abolition of death penalty in 1976, the homicide rate has declined. In 2000, there were 542 homicides in Canada - 16 less than in 1998 and 159 less than in 1975 (one year prior to the abolition of capital punishment).

A survey conducted by the United Nations in 1988 concluded that research has failed to provide any evidence that executions have a greater deterrent effect than life imprisonment.

In 1997, the Attorney General for Massachusetts (USA) 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 last 20 years the homicide rate in the States with death penalty has been 48 per cent. to 101 per cent. higher than in the States without death penalty.

The death penalty has been abolished since 1965 in U.K. The membership of European Union is dependent on having no death penalty. This has been done obviously in the confidence that murders do not get automatically reduced by retaining death penalty.

The South African Constitutional Court unanimously ruled in 1995 that the death penalty was unconstitutional as it constitutes "cruel, inhuman or degrading treatment or punishment".

The grievous danger of irreversibility and innocents being executed is no panic reaction considering that 500 people have been executed in the United States since the Supreme Court reinstated the death penalty in 1976.

Since 1973, 123 prisoners have been released in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death.

Baldus Report prepared in the United States found that if a homicide victim was white, his or her killer was four times more likely to get the death sentence than if the victim were black. The same disadvantage will occur in India in case of Dalit and the Poor.

This very question was asked of the Home Ministry in 2005 by President Dr. A.P.J. Kalam - why all those on death row were the poorest of the poor, remains well known but officially unacknowledged.

So far 133 countries, from all regions of the world, have abolished the death penalty in law or in practice and only 25 countries carried out executions in 2006, a recorded 1591 executions compared to 2105 in 2005.

The community of States has adopted four international treaties providing for the abolition of the death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights and the Protocol to the American Convention on Human Rights provide for the total abolition of the death penalty but allow States wishing to do so to retain the death penalty in wartime as an exception.

"There are no exact figures of executions having taken place. However, in 1989, the Attorney General for India informed the Supreme Court that between 1974 and 1978, 29 persons were executed. The Government announced in Parliament that 35 executions had been carried out in the three years between 1982 and 1985. And in 1997 the Attorney General for India informed the UN Human Rights Committee that between 1991 and 1995, 17 executions had been carried out.

On 29 th November 2006, in a response to a question in the Rajya Sabha (Upper House) of the Parliament, the Minister of Home Affairs reported that at present mercy petitions of 44 persons were pending before the President of India, a number of which had been pending since 1998 and 1999." ( vide Lethal Lottery Publication by Amnesty International India and PUCL - Tamil Nadu and Puducherry - 2008)

The last execution took place on August, 2004. Even in a judgment in 2006 in Aloke Nath the Supreme Court candidly admitted that the so called rarest of rare case for imposing capital punishment was too vague and stated "No sentencing policy in clear terms has been evolved by the Supreme Court". Is that not enough reason for abolishing the death penalty because otherwise vagaries and fancies will determine the Sentencing.

World opinion is now almost wholly veering round to the abolition of death penalty. Is it not embarrassingly shameful that our land of Lord Gautam Buddha, Lord Mahavira and the apostle of Non-violence, Gandhi should present such a negative face against Human Rights which embody Right to Life.

 
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