CHAPTER VI. a human being has an essential right to live, particularly that a human being

Transcription

1 Chapter - VI Capital Punishment and the Human Rights in India

2 CHAPTER VI CAPITAL PUNISHMENT AND HUMAN RIGHTS IN INDIA INTRODUCTION Human Rights or Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. The concept of a right to life is central to debate on the issues of capital punishment. The debate about the death penalty does not usually employ the terminology of human rights. Nevertheless, the use of the death penalty intersects with international law and is challenged by it. Hence, international law and an analysis based on human rights are useful means to address the death penalty issue. The reasons why countries have abolished the death penalty in increasing numbers vary. For some nations, it was a broader understanding of human rights (Spain abandoned the last vestiges of the death penalty in 1995 stating that...the death penalty has no place in the general penal system of an advanced, civilized society... Similarly, Switzerland abolished death penalty because it constituted a flagrant violation of the right to life and dignity... 1 Defining the death penalty as a human rights issue is a critical first step, but some countries which resist aggressively use the death penalty. When the United Nations General Assembly considered a resolution in Roger hood, the death penalty : A Worldwide perspective,clarendon press,oxford,

3 to restrict the death penalty and encourage moratorium on executions, Singapore asserted that capital punishment is not a human rights issue. In the end, 74 countries abstained from voting on the resolution and it failed. 2 However, for an increasing number of countries the death penalty is a critical human rights issue. In 1997, the U.N High Commission for Human Rights approved a resolution stating that the abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights. 3 This resolution was strengthened in subsequent resolutions by a call for a restriction of offences for which the death penalty can be imposed and for a moratorium on all executions, leading eventually to abolition. Challenging the death penalty is not seen solely as an internal matter among nations. Many European countries, along with Canada, Mexico and South Africa have resisted extraditing persons to countries like the United States unless there are assurances that the death penalty will not be sought. The European Union has made the abolition of death penalty a precondition for entry into the union, resulting in halting of executions in many eastern European countries which have applied for membership. 4 Civil society is based upon the concept of human Rights which are essential not merely to fulfill biological need of the mankind but as well as for the dignity of the individuals. 2 Richard C. Dieter, The Death Penalty and HumanRights : U.S. Death Penalty and International Law. 3 United Nations High Commission for Human Rights Resolution/CN.4/1997/12(April 3, 1997) 4 Death Penalty Information centre,

4 Every Democratic constitution tries to recognize the concept of Human Rights is one way or the others. Indian constitution recognizes the concept of Human Rights through its preamble. Human Rights are implied as civil liberties (fundamental rights) and democratic Rights (Directive principles of state policy) in the Indian constitution. These Rights are essential for the full development of the Human personality and for Human happiness. Undoubtedly Human Rights have always been regarded as the backbone of every democratic set up. 5 The right to life is not as inviolable as it might seem at first sight. There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. The use of the death penalty is one such example. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use. 6 Critics of the death penalty commonly argue that the death penalty specifically and explicitly violates the right to life clause stated in most modern constitutions and human right treaties, including the Indian Constitution under Art-21, etc. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislation of a civilized country recognize them since they are so quintessentially part of every human being. That is why every 5 Charanjeet Singh; Human Rights in India-problems and prospects 6 Willam A. Schabas, The Abolition of the death Penalty in International Law,OUP,Oxford,

5 democratic country committed to Rule of Law put into force mechanisms for their enforcement and protection th Law Commission Report The Law Commission in its 35 th report said that the risk involved in abolition of the capital punishment could not be undertaken in the present state of country. No single arrangement for abolition or retention can decide the issue. In arriving at any conclusion, the need for protecting the society in general and individual human being must be born in mind on a consideration of all issues involved; the commission is of opinion that capital punishment could be retained in the present state of the country. 7 Until there were several death penalty was executed but is carries no positive effect, there cannot be deterrent effect in this society. In the sense that the offender has committed murder, deterrent effect of death penalty has failed on him. On the other hand different types of homicide can be made on the basis of social environment and the personality of the offender. Therefore the efficiency of death penalty in such cases should be judged in the light of surrounding conditions. Considered from this standpoint the habitual offenders and sex psychopaths are abnormal persons who developed a kind of mania for their crime without bothering about its gravity or evil effect. There is yet another category of criminals who take pleasure in killing human life without any apparent reason. They commit murder only for the sake of 7 35 th Report of Law Commission of India ( Govt. of India,1967) p

6 fun. They commit murder only for they derive some kind of pleasure in watching their victim dyeing in pain and torture. Needless to say that death sentence is perhaps the only appropriate punishment for such beastly offenders. 6.2 Retention of Capital Punishment - How Far Justified? The history of human civilization reveals that during no period of time death penalty has been discarded as a mode of punishment. The retention of capital punishment in society there has some specific circumstances those who are not only incorrigible, but who are immensely dangerous to the society and they commit cold-blooded murders in calculated manner. Particularly in agricultural countries like India, the real problem of death penalty arises in case of murders committed during agrarian riots and disputes relating to the possession or ownership of the land property. In this case the offenders are well aware of the consequences of their act. but they fall a prey to criminality due to the passion, excitement or anger. In fact, they do not aware of the consequences instead those consequences to follow. Hence, they cannot be categorized the as professional killer. Dr. Sethna carried intensive study on criminal cases in Bombay High Court and concluded that out of 507 cases of homicide only % they were premeditated while remaining 73.72% were unpremeditated. Thus cost of the homicides is due to ill-will, emotions, irresistible temper or manic excitement and capital punishment serves no deterrent purpose in such cases. 259

7 The Supreme Court of India for awarding capital punishment gives some directions to avoid the capital punishment. There have alternative sentence are given to the capital punishment at the time of awarding death sentence court is free to award either death sentence or life imprisonment. 8 Unlike formerly when death was the rule and life term the exception for recorded reason, there should be recorded special reasons in death sentence. Death sentence need not be inflicted except in rarest of the rare case and gravest cases of extreme culpability. The choice as to which one of two punishment provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the court has to exercise its discretion judiciary and on well recognized principle after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about crime, which renders sentence of Imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should be reserved for the rarest of rear cases after due consideration after a due consideration of both mitigating and aggravating circumstances. Retention Preferred to Abolition 8 Dr.chandrika Sharma,death sentence:repeal or Retention Riddle(2004)PL Web Jur

8 Death penalty, affects as it does the very existence of the human being, has been agitating the minds of the penologist all over the world. The public opinion is divided on this question. Though battle of arguments is going on between the two opposite way of thinking, i.e. retentions and abolitionists and sometimes the situation gets to brink. The parliaments in India have been constantly struggling to repeal the provisions relating to death penalty from the penal code from the past several years. 9 The first proposal on this issue was tabled in Lok Sabha in But it was subsequently withdrawn at the instance of the then Home Minister Sardar Vallabhabhai Patel who characterized it as the most un-opportune proposal. The matter came up for debate again in Rajya Sabha in 1958 but it again met the same fate. The subject was, however, accepted for discussion in Rajya Sabha in 1962 but the general opinion of the House favored in retention of death penalty realizing that time had not yet come when its repeal from the statute book could be justified. Consequently, the proposal was dropped. The retentionists in the House opposed abolition of death sentence on the ground that its retention in the Statute Book acted as an effective deterrent for hardened and habitual murderers and dangerous criminals whose elimination from the society was inevitable the members also pleaded that the government was already lenient in commenting death sentence to that of life imprisonment wherever it was possible. 9 //html//google.com/article on-.retention_preferred_to_abolition.id_

9 The question of abolition of death sentence was considered at length in a seminar on Capital Punishment in India 10 which was largely attended by number of eminent jurists, Judges, academic lawyers, legislators etc. the consensus was in favor of retention of capital punishment in view of the deteriorating law and other situation in the country. Those who advocated abolition of death penalty, however, suggested that it shall be fitting tribute to the memory of late Mahatma Gandhi if death penalty is abolished in India at the occasion of Gandhi Centenary celebrations in that years. But the receptionists argued that the cause of non violence is equally served if the causes of explicit violence regardless of ideals involved are visited with implicit violence of capital punishment and stressed on its application in such.a manner that its harshness is mitigated but efficiency retained. The Report of the Convention of International Congress of Criminal law which was held n New Delhi on 8, 9 and 10 th February, 1982 concluded that the general consensus was clearly in favor of retention of death penalty though its use may to be restricted to rarest of rare cases. Despite strong plea for abolition by Justice V.R. Krishna lyer, the former. Judge of the Supreme Court of India, The convention justified retention of capital punishment, though to be used sparingly. Inaugurating the congress Mr. M. Hidayatullah, the then Vice - President of India and former Chief Justice of the Supreme court of India, observed that the doctrine of rarest of rare case evolved in the India jurisprudence for the use of death penalty is capable of 10 The seminar on abolition on death penalty was held in Delhi in October;

10 discounting the possible errors and abuse of this sanction and therefore, a dispassionate approach to this problem in the context of the mounting crime was not necessary. This mid way approach seems to be most appropriate particularly in the context of modern Indian society where the machinery of police as well as the magistracy is hardly adequate to tackle the problem of crime and criminals effectively. The object of punishment should be achieved by extending necessary safeguards to life and property of persons but at the same time by limiting their liberty so as to eliminate crime. Those who denounced this kind of punishment argued that capital punishment has not served its deterrent object at all. Capital punishment may be preventive, but at hot cost and under what circumstances? Crimes are very often committed, not by persons who are normal human beings or under normal circumstances, it is not even certain.that a murderer would repeat the murder again. He might have committed this heinous crime under extra ordinary circumstances. If the state were to kill that man it could at best have only the dubious satisfaction of having preventing a crime, which probably would never have been committed, but it must be noted that in such a case in its anxiety to prevent a crime. The state itself has committed the greatest crime of taking away the life of a man. Professor Henting draws our attention to another silent defect of the capital punishment: No thinking person can claim that our law of evidence and the law of procedure are full proof, and always lead us inevitably to the 263

11 truth. It is possible that there are judicial errors, and in such a. case, capital punishment once it is awarded and the person executed, cannot be revoked. Thus there have been cases where, after execution of an alleged murderer, the true murderer is caught, but can the mischief be remedied? It is argued that it is therefore better to save nine murderers from capital punishment than to inflict on one who may be infect innocent. It is therefore argued that this type of extreme punishment is neither effective nor just and should be abolished. 6.3 Law Commissions Report on Capital Punishment In response to the resolution moved in the Parliament in 1962 on the abolition of the capital punishment, the government of India referred the question to the law commission. The commission decided to take up this subject separately for the revision of the general criminal law in view of its importance. The commission presented its report to the Lok Sabha on November 18,1971, in which it inter alia observed : ; Even after all the arguments in support of abolition of capital punishment are taken into account, there does not remain a residuum of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal 11 the commission further expressed a view that retribution involved in capital punishment does not connote the primitive concept of eye for an eye but it is an expression of public indignation at a shocking crime, which can better be described as reprobation nd and 48 th Report Of the Law Commission of India

12 Therefore, the commission did not recommend any material change in the offences which are at present punishable with death under the Indian Penal code. As regards the question of exempting certain categories of persons from death sentence, the Jaw commission in its 42 nd report published in June 1971 suggested that: 1) Children below 18 years of age (at the time of commission of the crime) should not be sentenced to death. 2) It is not necessary to exempt women generally from the death penalty. 3) It is unnecessary to insert a statutory provision relating to diminished responsibility in the statute book. 4) An attempt to commit suicide should cease to be an offense in India. The present law in this regard is harsh and unjustifiable and it should be replaced. 12 Thus, the law commission strongly feels that capital punishment acts as an effective, deterrent which is the most important object and even if all objects were to be kept aside, this object would by itself furnished a rational basis for its retention. In its concluding remarks, the commission observed paramount need for maintaining law and other in this country, we cannot risk the experiment of abolition. This is perhaps the most appropriate approach to the problem of capital punishment so far as Indian Criminal justice system is concerned. 12 In Rahiman Naghhusan Patanaik v. Union of India,A.I.R. 1994, SC

13 In 1961, another resolution was moved in Rajya Sabha by Savitri Devi Nigan. This time only six members were in favor of the abolition of death penalty and the rest advocated its retention, in 1962, a resolution was moved by Raghunath Singh and received serious attention. It was withdrawn only after the Government assured the house that a decision would be taken after a detailed consideration of matter. The question was referred to the law commission of India which submitted 35 th report on Capital punishment to the government in September The Law Commission Report of 1972 also favored the retention. It is argued that in view of the peculiar conditions prevailing in the Country, it would be an unwise more to abolish it. However, the Commission laid down the condition that the court should give reasons before imposing this extreme penalty. The commission specified that children who were below 18 at the time of commission of crime should not be sentenced to death. But it did not exempt women from death penalty. It also recommended that executions be Certain, humane, quick and decent. In the 156th report, the Law Commission of India (1997) favorer a cautions approach and pleaded to retention as an exceptional penalty. The Justice A. N. Mulla Committee on Jail Reforms is understood to have recommend amendment in Section 302 of the Indian Penal Code so that death is prescribed as one of the punishments only in cases of murder with aggravating circumstances. In other cases of murder, the committee is understood to have suggested that courts be given 266

14 discretion to impose imprisonment for life or for a shorter term. Imprisonment for life should be for a fixed term, extendable over a reasonable period of time which may be determined by legislature and incorporated in the India Penal Code. 13 We have not been referred to any large-scale studies of crime statistic compiled in this country with the object of estimating the need of protection of the society against the murderers. The only authoritative study is that of the law commission of India published in 1967, 35 th report. After collecting as much available material as possible and assessing the views expressed in the west both by abolitionist and the receptionist, The law commission has come to its conclusion at Para 262 to 264. These paragraphs are summarized by the commission as follows at page 354 of the report. The issues of abolition or retention have to be decided on a balancing of the various arguments for and against the retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need of protecting society in general and individual human beings, must be born in mind. It is not difficult to rule but the validity of or the strength behind, many of the arguments for abolition nor does the commission treat lightly. The argument based on the irrevocability of the sentence of death, the need for modern approach, severity of the capital punishment and the strong feelings 13 The Indian Express, April 4,

15 shown by certain sections of the public opinion in stressing deeper question of human values. Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of it population and to the paramount need for maintaining law and order in the country at the present juncture India can not risk the experiment of abolition of capital punishment. Arguments, which would be valid in respect of one area of the world, may not hold well in respect of another area, in this context. Similarly, even in abolition in some parts of India may not make a material difference. It may fraught with serious consequences in other parts.on a consideration on all the issues involved, the commission is on the opinion that the capital punishment should be retained in the present state of the country. A very responsible body has come to the above conclusion after considering all the relevant factors. On the conclusion thus; offered to us it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest. Following are the main points that have weighted with us in arriving at this conclusion. a. Basically, every human beings dreads death. 268

16 b. Death, as a penalty, stands on totally different level from imprisonment of life or any other punishment. A difference is one of the quality and not merely of degree. c. Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from the State government, judges, members of Parliament and legislature and members of the bar and police officers are definitely of the view that the deterrent object of the capital punishment is achieved in a fair measure in India. d. As a conduct of prisoners released from jail (after undergoing imprisonment of life) it would be difficult to come to a conclusion, without studies extending over a long period of years. e. Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt. f. Statistics of the other countries are inconclusive on the subject of they are not regarded as proving the deterrent effect neither can they be regarded as conclusively disproving it. The most practicable and representative public opinion of India was very well summed up by our first Prime Minister Pt. Jawahar Lal Nehru : At one time I was strongly opposed to death penalty and in theory my opposition still continues. And yet with all my repugnance for executions, I 269

17 feel that some method or eliminating utterly undesirable human being will have to be adopted and used with discretion. 14 Similarly, Mrs. Indira Gandhai stated as : I am personally in favour of abolition of capital punishment. But certain crimes were heinous in nature and deserved punishments Venugopal Rao, Facets of crime in India (1962); pg The Times Of India, March 3,