Death penalty fails test of humanity

The recent execution of Yakub Memon after his conviction in the Mumbai blasts case of 1993 has brought the debate regarding death penalty in India into a sharper focus. It’s clear that the discourse on the legality, constitutionality and human rights implications of death penalty as a form of punishment requires a rigorous, balanced and nuanced analysis.

The current Indian law provides for death penalty as a form of punishment. But this is limited and can only be imposed in the “rarest of rare” cases. The existing legal and constitutional framework for imposing death penalty as a form of punishment draws its foundation from the judgment of the Supreme Court of India in Bachan Singh vs State of Punjab decided 35 years ago. In this case, the court upheld the constitutional validity of death penalty, but also observed, “…A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed…”

It is a rather long time since the “rarest of rare” doctrine evolved. And the death penalty jurisprudence developed by our courts is, unfortunately, limited. The death penalty cases adjudicated by our courts have hardly been able to discuss the sociological, penological and criminological objectives of punishment.

The decision to determine as to which crimes deserve the death penalty is filled with the possibility of arbitrariness, though it is not enough to argue that just because there is a risk of judges deciding cases arbitrarily, we cannot give them the powers to decide certain cases. But the irreversibility of death penalty makes it very different from other decisions made by judges.

An important study of the Supreme Court of India’s death penalty judgments during 1950-2006 conducted by Amnesty International India and People’s Union for Civil Liberties, entitled “Lethal Lottery: The Death Penalty in India”, observed: “…Cases of judicial error in capital trials illustrate starkly the human failings of the criminal justice system and reiterate the lethal judicial lottery that is the death penalty in India…”

The protection of human rights in India has evolved through judicial recognition of constitutionally protected rights. It is important for India to recognise that death penalty has moved from being a national criminal justice policy issue to an international human rights issue. And that’s why expanding the provision of the “right to life” in Article 21 of the Constitution of India is necessary with a view to recognising that this right cannot be taken away by the state even through a procedure that is “fair, just and reasonable”. In that sense, capital punishment ought to be declared unconstitutional because death penalty is not in consonance with our constitutional values.

The arbitrariness that is deeply embedded in the decision-making process of the courts to determine whether a particular case falls under the category of “rarest of rare” undermines the judicial process. In the absence of sentencing guidelines, it becomes entirely the discretion of the judges to determine whether a case is fit for imposing capital punishment.

The South African Constitutional Court in a landmark decision in 1995 (State vs Makwanyane), while declaring that death penalty is unconstitutional observed: “…It cannot be gainsaid that poverty, race and chance play roles in the outcome of capital cases and in the final decision as to who should live and who should die… At its core, constitutionalism is about the protection and development of rights, not their extinction… Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings…”

Ninety-nine countries in the world have completely abolished the death penalty. The international human rights regime has established conventions and protocols with a view to protecting human rights. The UN Human Rights Committee in a landmark decision in 2003 (Roger Judge vs Canada, August 13, 2003) observed: “…there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consensus not to carry it out…”

India needs to evolve social and political consensus to completely abolish death penalty for all crimes, including acts of terrorism. No civilised society, especially constitutional democracies, can allow state and its instrumentalities to take away anybody’s life. There are significant studies that have demonstrated that all the reasons for which death penalty as a form of punishment could be imposed are not supported by empirical evidence. The most persuasive argument — that of deterrence — has also been proved ineffective. Professors Roger Hood and Carolyn Hoyle of the University of Oxford in their recent book,

The Death Penalty: A worldwide Perspective, have observed, “…the case for retaining the death penalty — and thus resisting the movement to make its abolition an international norm — cannot rest solely on moral, cultural or religious arguments. It would also have to be shown that it is useful and that it can be applied fairly, without mistakes, and without any degree of arbitrariness or cruelty unacceptable to contemporary social and legal values. There is …sufficient evidence to indict capital punishment for failing the test of humanity on all these grounds.”

The writer  is the founding vice-chancellor of O.P. Jindal Global University and dean of Jindal Global Law School. He can be contacted VC@jgu.edu.in