India awards death penalty to convicts involved in heinous offences.Recently,two convicts,namely Afzal Guru and Ajmal Kasab were hanged till death by the state.The hanging of Afzal Guru had even courted controversies with a section of people questioning the procedure followed by the state before hanging him.According to Amnesty International,140 countries throughout the world have abolished the death penalty altogether.Even the International Criminal Court(ICC) prescribes life-imprisonment for the gravest crimes like genocide.In this context,the question assumes significance:Should India abolish the death penalty altogether?
India cites three reasons for retaining death penalty.First,it is the sovereign right of the nation to determine the nature of its law and punitive measures.Second,it is awarded only in the cases of rarest of rare crimes.Third,adequate legal safeguards are followed for appeal by the convict before taking him to the gallows.While India is arguably reasonable in retaining the death sentence,certain facts cannot be glossed over in a country,which claims to be the world's largest democracy.
India cites three reasons for retaining death penalty.First,it is the sovereign right of the nation to determine the nature of its law and punitive measures.Second,it is awarded only in the cases of rarest of rare crimes.Third,adequate legal safeguards are followed for appeal by the convict before taking him to the gallows.While India is arguably reasonable in retaining the death sentence,certain facts cannot be glossed over in a country,which claims to be the world's largest democracy.
The procedure followed while awarding death penalty to a convict is not always fool-proof.There are chances that the judgement becomes arbitrary and judge-centric rather than principle-centric.The miscarriage of justice goes fundamentally against the basic tenet of natural justice which says"The guilty must be punished and the innocent should be freed".Moreover,in a country,where the justice dispensation process is still long-drawn,convicts are left languished in prisons for years before being hanged.The convicts have to bear untold physical and mental harassment in prisons while waiting for clemency as the clemency process is in itself very time-consuming.In this backdrop,the Supreme court recently directed the government to dispose the mercy petitions of the convict as soon as possible(Satrughan case,2014).
In a democracy,the first right of a person is the right to live.The state has the obligation to protect the fundamental right to life of an individual. Justice Krishna Iyer had stated that the state has no business in taking away the life of an individual in the name of ensuring retribution,merely to avenge his acts.Revenge is not equivalent to justice.Also,death is awarded for the acts committed by the convict without taking into consideration the social background and the role of the state in bringing up its citizens.Thus,awarding death penalty is equivalent to the missed opportunity of the state in reforming the convict or providing grounds for reform.
The architect of the constitution,Baba Saheb Ambedkar admitted in constituent assembly that people may not follow non-violence in practice,but "they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can".With this in mind,he said"the proper thing for this country to do is to abolish the death sentence altogether".
The law commission of India recently recommended abolition of death penalty for all but terror related crimes and waging war against the country. The commission opined that we tend to lose sight of the restorative and rehabilitative aspect of justice while awarding retributive form of punishment to the wrong-doers. The fundamental flaws in the death sentence arises from the gross miscarriage of justice, errors as well as the plight of the poor and disenfranchised in the criminal justice system. Thus, the award of death sentence is constitutionally unsustainable.
ReplyDeleteIn the Bachhav singh v/s state of Punjab case, the 'rarest of the rare' case was invoked as a tool to award capital punishment. This measure has reduced the scope of arbitrariness in deciding such cases eligible for capital punishment. Yet human errors cannot be eradicated completely due to the subjective nature of the problem.It is heartening that the Indian society is gradually moving towards a state of society where capital punishment has become an exception rather than a norm.
ReplyDeleteThe law commission notes that retributive justice is important, but it must not descendto the level of vengeance,as numerous SC judgements that refer to the 'conscience of the people' seem to indicate
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