Should death sentence be retained or abolished?

Death penalty is an act that gives the right to take the life of a person. It is done to prevent criminals. But isn’t killing the person who killed some other person, is doing the same act but with the consent of the authorities? We hate people who kill other people and to show how much we hate them, we are sentencing them to death. Are we not against the act of killing? To quote American novelist Wendell Berry, “Violence breeds violence. Acts of violence committed in ‘justice’ or in affirmation of ‘rights’ or in defense of ‘peace’ do not end violence. They prepare and justify its continuation.”

Article 21 of part three of the Indian Constitution states, “No person can be deprived of his life or personal liberty except according to the procedure established by law.” Article 72, Chapter one part five of the Constitution gives power to the President of India to grant pardon, remit sentence or to suspend the sentence of the accused. Under Part five, Chapter four, Article 134(1) the Constitution provides that cases in which the High Court has reversed the order of acquittal of the accused person on appeal and sentenced him to death or took back any case from the lower court for trial and sentence the accused to death, are to be appealed in the Supreme Court. The Governor can give authority to Regional or District Council in case of capital cases, under sixth Schedule, Part five (1). Though Death sentence is constitutional in India, many people in the constituent assembly were opposed to it. Babasaheb Ambedkar, the father of Indian Constitution said, “They certainly, adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can ... the proper thing for this country to do is to abolish the death sentence altogether.” In India death sentence is given in “rarest of the rare” cases.

The judges are human too and humans are supposed to make errors. There are a variety of judges and they have their own stand on capital punishment. Death penalty could result in killing innocent people and this is the real risk to it. An example of this inadequacy can be seen in the Indian Supreme Court judgements. 14 retired judges wrote to the President of India in 2012 that they had mistakenly given death penalty to 15 people since 1996. Two of the accused in the mistaken list were already hanged. Such high error rate is unacceptable. Killing an innocent person is a horrendous act even if it is by judiciary’s mistake.

There is also a difference in judgement for similar incidents.  A study conducted by the Asian Centre for Human Rights, states that “conscience” varies from judge to judge, depending upon his “attitudes and approaches, predilections and prejudices” In Vashram (2002) and Sudam (2011) case both killed their wife and children. Vashram’s sentence was commuted whereas Sudam was sentenced to death.  According to a study conducted by Amnesty International and the People’s Union for Civil Liberties have shown that the decision regarding the death sentence is biased and arbitrary. In the United States of America the death penalty given to the blacks for killing the whites was more as compared to the penalty given to the whites for killing the blacks. This shows the discrimination of judiciary on the basis of race.

The judgement of the judiciary is guided by the investigations done by the police. If proper investigation is not done, the result would be partial. Many confessions are taken by torturing the accused. In the Arushi Talwar murder case the investigation done by the police was baseless which led to the sentencing of the parents to life imprisonment which was later rebuked.

Many countries like Iran and Sudan take advantage of capital punishment for taking revenge from their political rivals. There have been many incidents in the past where death penalty was used to curb the political rivals. Bhagat Singh, Rajguru and Sukhdev were hanged to death by the Britishers.  At the time of execution Bhagat Singh and Sukhdev were 23 and Rajguru was 22. Punishment is meant to help a person reform but capital punishment gives no importance to reformation, it focuses more on vengeance.

Death penalty is supported by politicians because they want to be seen as people who are tough on crime. They want to politicise everything for their vote bank. Death penalty may end the life of a person in fractions of seconds but the cost involved is more in a death sentence than keeping the person in prison.

Most people serving death sentence are poor or from backward classes. People who are wealthy approach the Supreme Court and common people who are poor are not able to go to the upper court. The lawyers also lose interest in their cases because the accused cannot even pay them.

The prisoners on death row have to go through psychological torture till the judges decide their fate. A study conducted by National Law University shows that there is an average of five years between arrest and sentencing. During this gap, the prisoners have to face many atrocities. The National Law University carried out a study in 2016 and came to the conclusion that a high percentage, (approximately 94 per cent) of the death row convicts are the poor, Dalits or Muslims. The death row convicts are not able to sleep because of the uncertainty of their fate. Their mental health is deteriorated in the prison due to the lengthy judicial process. Some prisoners commit suicide during this process. This is a complete violation of human rights. They have to live every day in fear because they have no idea what is about to happen to their life.

Apart from the accused the executioners also face trauma because of their employment. Nata Mullick who was a hangman till 1991 describes how he was not able to sleep peacefully because of his job. They have to go through psychological trauma because of their job. Most of the hangman takes the job because of poverty. It is then carried by their bloodline. Most of the hangmen in India are either from lower class or are poor.

In 2015  Kerala government was not able to employ an executioner. No person came forward to take the job. Earlier the hangman’s salary in Kerala was Rs. 500 per execution but with very little people willing to join, the Kerala government decided to hike the salary up to Rs. 2 lakh.

A study by Professor Michael Radelet and Traci Lacock of the University of Colorado found that death penalty as an effective deterrent is supported by only 12% of criminologist. The rest 88% do not support this view. There have been no study which proves that capital punishment is an effective way to deter crime.

According to the United Nations human rights experts, public execution does not serve any purpose to the public rather it only intensify the inhuman and disgraceful nature of the punishment. European Union has made “abolition of death penalty” as a prerequisite requirement for its membership. “All executions violate the right to life. Those carried out publicly are a gross affront to human dignity which cannot be tolerated,” said Hassiba Hadj Sahraoui, Amnesty International’s Deputy Director for the Middle East and North Africa.

Solitary confinement till death, with no hope of parole is such a devastating punishment that a terrorist or any convicted criminal would welcome death. It is, therefore, better to keep the terrorist in confinement which may also give out a whole lot of information about the real people behind such dastardly acts.

According to Amnesty International 142 countries have banned capital punishment by 2017. As a progressive democratic nation, it is must be our agenda to have rule of law in place and not rule by law. Nazis used to have rule by law which is nothing but oppression of the people. Rule by law could lead to dictatorship which curbs the right of people. Laws pertaining to harm human rights should not be passed by the Executive. Respect for the rights of a fellow human being is a major concern and it should be adhered by the law and society.

If the public is in support of death penalty it does not mean that the government should abide by what the people say. There are many cases where many people have supported human rights violation. For example the lynchings are supported by a group of people but it does not mean that the government should also accept it. It is the job of the government to understand and take a decision to harmonise the condition in our society so that people are able to live with dignity and pride.

A look into India’s history texts such as Mahabharata will help to understand how crimes and punishment were treated at that time. The central theme of Mahabharata is crime and punishment. Ashwatthama was a well bred young man brought up in luxury surrounded by princes and kings. He was quite young, poised and modest. He was the son of the greatest archery teacher Drona. When the war started between the Kauravas and the Pandavas, Ashwatthama found himself to be on the wrong side. He gratefully accepted his defeat but his valour was appreciated by everyone. What pinched him the most in the war was that his father was killed by the Pandavas deceitfully. He felt his father was being cheated in the war by the Pandavas. He wanted to take revenge from the Pandavas for their deceitfulness. Burning with the feeling of revenge, Ashwatthama set fire to the sleeping victorious army of the Pandavas. The fire led to the death of Draupadi’s children. Draupadi was devastated and wanted to take revenge from him for the death of her children. Obeying Draupadi’s order the Pandavas captured Ashwatthama and brought him before Lord Krishna. They discussed various punishments for him and they all agreed that death will be an easy getaway for the crime he had done. Lord Krishna being a true companion of the Pandavas decided a severe punishment for Ashwatthama. Lord Krishna cursed that Ashwattama would wander on the earth for 3000 years, alone and unseen, stinking of blood and pus. This incident shows that even in history death sentence was never an option to punish a person for heinious crimes. The death penalty was considered as a lenient punishment for Ashwatthama and death would never made him suffer as the latter punishment did. However, this is again is a matter of debate, in modern times when we have different legal systems and different thought processes altogether.

Death penalty is usually given in accordance to the level of crime and role of the offender in the crime. Factors such as background of the offender and reformation of the offender in the future is not taken into consideration. “What does the law say? Don’t kill. How does the law say it? By killing,” said Victor Hugo, French poet and novelist.

Afzal Guru the convict of the Parliament attack in 2001 was hanged and buried inside Tihar jail, Delhi. His family was not even informed about his death. No matter what is the nature of the crime but violating the basic rights of the family and the accused is not acceptable.

We dislike people who kill other people and to show to the society how much we dislike people who kill people, we kill them. It appears as if death sentence pretty much goes against everything it claims to be for.

India being a progressive nation should move ahead and abolish capital punishment. Irrespective of the nature of the crime, the rights of the accused should not be violated. The judiciary is not meant to act on the idea of revenge.  As said by William Newsom, the governor of California “I know people think eye for eye, but if you rape, we don’t rape … And I think if someone kills, we don’t kill. We’re better than that.”