Death Penalty – effective deterrent or judicial murder?

 Prasanna Kapoor

“I cannot in all conscience agree to anyone being sent to the gallows. God alone can take life because he alone gives it.”-Mahatma Gandhi 

DEFINITION OF CAPITAL PUNISHMENT A.K.A JUDICIAL MURDER-

 “To defend death sentence is to admit that there comes a stage in a human being when the person is believed to be beyond correction and learning, with no scope for transformation and reformation, beyond the hope of doing anything which will be of any use to any member of the society .However, its rare to come across a human condemned to death who is so derelict that his mother, children and friends do not come to meet him and feel nothing for him”.

In India, the death penalty can be imposed under Article 21 of the Constitution which states: “No person may be deprived of his/her life or personal freedom except in cases established by law” .

The ambit for its imposition is within following offences –

(1)   Punishment of criminal conspiracy(S.120 B)

(2)  Treason, for waging war against the Government of India (s.121)

(3)   Abetment of mutiny actually committed (s.132)

(4)   Perjury resulting in the conviction and death of an innocent person (s.194):

(5)  Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A)

(6)   Murder (s.302) and murder committed by a life convict (s. 303). Though the latter was struck down by the Supreme Court, it still remains in the IPC.

(7)  Abetment of a suicide by a minor, insane person or intoxicated person (s.305)

(8)   Attempted murder by a serving life convict (s.307 (2))

(9)   Kidnapping for ransom (s.364A)

(10) Dacoity [armed robbery or banditry] with murder (s.396)

The death penalty is provided under the following special and local laws:

(1) Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act 1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992

(2) Defence and Internal Security of India Act 1971

(3) Defence of India Act 1971 (s.5)

(4) Commission of Sati (Prevention) Act 1987 (s.4 [1])

JUDICIAL MURDER AND DETERRENT EFFECT –

“Criminal justice system continues its punitive ways despite numerous studies by liberal reformers proving that prison or capital punishment are completely ineffective in protecting society from crime”- Erich Fromm ; psychoanalyst, sociologist, humanistic philosopher and democratic socialist.

The foremost “hidden functions” of the criminal justice system, whether in punishing or in showing mercy, is to divert the anger of the masses over their own social conditions away from the dominant classes and onto the criminal. This allows the masses to express their pent-up anger “in a manner that is harmless for the state”

When we talk about the justification for the withholding of death penalty, the general retort is deterrence effect of capital punishment. There does not seem to beany bona fide and scientific proof obtainable to support the belief that death penalty has a deterrent effect above to that of life imprisonment.

JUDICIAL MURDER AND WRONGFUL CONVICTION –

According to retired Chief Justice of India ,PB Gajendragadkar, , “A judge is yet to be born who has not committed a mistake

The most well-known case of an innocent person being hanged is Kehar Singh  in the Indira Gandhi assassination case(1989 AIR 653). Although it is still not officially accepted as an error, many judges have acknowledged that the evidence in the case was shockingly insufficient and that an innocent man was hanged.

Eminent Judges such as  VR Krishna Iyer, Chinnappa Reddy , PN Bhagwati and many others have focused the attention of the Parliament on the dire need of a specific and definite legislation while dealing with cases where death or life of an individual is involved . Professor AR Blackshield of Australia in an analytical study on the death penalty imposed by the Judges of the Supreme Court in various cases pointed out that, “ ‘it is the Bench which decides the death or life’ and not the law of the land.”.Every judge has to discover the ‘special reason’ to bring the case under the category of ‘rarest of rare’ and there is every possibility of committing an error of judgment, which will be an infringement of  Article 14,19 and 21 of the Constitution.

This shows human justice can never be infallible. That is why all criminal justice systems based on the rule of law have introduced legislation that provide for opportunities to correct faulty decisions after judgment is made final. In the Kehar Singh case  the irreversibility of death penalty is demonstrated which substantiates the fact that miscarriage of justice is irrevocable.

Amongst the reasons of wrong death sentence we find-

  1. Inadequate legal representation.
  2. Police and prosecutorial misconduct.
  3. Perjured testimony and mistaken eyewitness testimony.
  4. Racial prejudice.
  5. Jailhouse “snitch” testimony.
  6. Suppression and/or misinterpretation of mitigating evidence.
  7. Community/political pressure to solve a case.

JUDICIAL MURDER AND HUMAN RIGHTS VIOLATION OF CRIMINALS

Death penalty is barbaric and inhumane in its effects, mental and physical upon the condemned human and is positively cruel .Its psychological impact on the prisoner in death row is disastrous”-Justice PN Bhagwati.

Suffering, pain, agony and terror inflicted on an individual who is sentenced to death and executed are excessive because:

1. There are other less drastic and better suited means to convey messages with deterrence value and moral disapproval.

2. The death sentence cannot be imposed in a consistent and non-arbitrary way.

3. The procedure of putting a person to death is associated with additional and illegitimate suffering and terror(death row syndrome).

4. Permanent execution through a violent death is breaking the basic rule which demands recognition of each person as a subject and the right of not being treated as an object.

JUDICIAL MURDER AND VENGEANCE-

State should not punish with vengeance“. Emperor Ashok.

Are these vengeful feelings morally appropriate? The answer is yes — because the actual difference between vengeance and justice is not as great as people think. It’s difficult to have honest conversations about revenge. Governments warn citizens not to take justice into their own hands, insisting that the state alone has the duty and right to punish wrongdoers — pursuant to the social contract. As a result, most people hesitate to frame their anguish in terms of revenge. Some, however, are more forthright, proclaiming a moral duty to avenge, especially when the law fails and breaches its part of the social contract.

JUDICIAL MURDER AND VICTIMS OF CRIME-

The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences.

* Trials in which the prosecutor is seeking a death sentence have two separate and distinct phases: conviction (guilt/innocence) and sentencing.

* More investigative costs are generally incurred in capital punishment cases, particularly by the prosecution.

* When death penalty trials result in a verdict less than death or are reversed, taxpayers first incur all the extra costs of capital pretrial and trial proceedings and must then also pay either for the cost of incarcerating the prisoner for life or the costs of a retrial (which often leads to a life sentence).

Every time a blast takes place, we can feel the pain of those who lose their loved ones. These terrorists should also be made to suffer like us; only then we can have peace of mind. However the government keeps them in jails, feeds and tends to them while we struggle for two squares a meal each day”- Victim of Mumbai Blast; The Hindu, September 9, 2011

The death penalty diverts resources from genuine crime control measures. Spending money on the death penalty system means:

*Reducing the resources available for crime prevention, mental health treatment, education and rehabilitation, meaningful victims’ services, and drug treatment programs.

* Emergency services, creating jobs, and police & crime prevention were the three highest rated priorities for use of fiscal resources.

* Schools/libraries, public health, and roads/transportation also ranked higher than the death penalty.

CONCLUSION

The death penalty amounts to spiteful and callous retribution as it doesn’t comply with today’s standards on criminal penalties. The offence statutes which carry the death penalty sometimes allow the extensive discretion of the criminal court in the decision of whether to impose the death penalty or other punishment. Extensive discretion brings about problems in terms of discriminatory selection and equal treatment most probably resulting in disparity across time, across offences as well as offenders and across jurisdictions. There is no scientific evidence supporting the hypothesis of deterrent effects of the death penalty; long prison sentences or life term imprisonment will have the same scale of deterrent consequences as the death penalty. Thus, enforcement of death penalty is disproportional and undue punishment.

 World facts on Death Penalty
In 1863 Venezuela became the first country to abolish capital punishment for all crimes
In 2010 Gabon became the latest country to abolish death penalty for all crimes
In 2011 China  had the highest rate of execution
India voted against a UN General Assembly draft resolution which called for abolishing the death penalty.
136 countries have abolished death penalty

The writer is an environment and human rights  activist in Uttarakhand and for past 6 years has been writing for newspapers such as Times of India ,Garhwal Post and Pioneer to spread awareness over various enviro-socia-legal issues .She is also the  founder of the Environment Law Forum ,student initiative to debate over the existing national and international environmental law regime .

 

 

 

3 comments

  1. Adfar Shah /

    All activism apart,death penality is an effective detterent.We are a society today that has crossed all moral limits and brutal rapes and other worst crimes have broken all the records.I believe death penality is a small punishment given to a rapist who sabotages the life of a poor victim like we saw in damini case.today our crimes are not just crimes but calamities so we need to be strict if we want to see some order.Better we be strict to such criminals and let us not atleast speak for those who put us to shame again and again before the humanity and the world,i mean rapists and terrorists.Today our capiotal is known as the world’s rape capital and our women folk dear to walk freely even in the late afternoon or in our less busy streets.

  2. Aloke Lal /

    There should be a serious effort to reform the crminal. Hate the crime, not the criminal, as someone said. Hope for retrieval has seen many-a-day through for the human race. This spirit should form the bedrock for building the criminal justice system Killing is not exactly a punishment. I agree that it is another name of murder.

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