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Mainstream, Vol. XLVIII, No 33, August 7, 2010

Abolish Death Penalty

Monday 9 August 2010, by Rajindar Sachar

The call of former President Dr A.P.J. Abdul Kalam to the Government of India to hold public consultation on the desirability of retaining death penalty has not received adequate media attention. This is unfortunate because we can no longer play a hide and seek game with the straightforward question of abolition of death penalty.

Great leaders of the world have voiced their opposition to death penalty. Thus Gandhiji said:

I do regard death sentence as contrary to ahimsa. Only He takes it who gives it.

Freedom fighter and Socialist leader Jayaprakash Narayan said:
To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurt to others. Death sentence is no remedy for such crimes.

Dr Ambedkar, during the Constituent Assembly debates, said:
I think that having regard to this fact, the proper thing for this country to do is to abolish death sentence altogether.

The High Commissioner for Human Rights, Louise Arbour, called death penalty “…..a sanction that should have no place in any society that claims to value human rights and the inviolability of the person”.

President Eduardo Frei of Chile said:

I cannot believe that to defend life and punish the person that kills, the State should in its turn kill. Death penalty is as inhuman as the crime which motivates it.

APART from human rights there is a pragmatic and practical wisdom which dictates against retention of death penalty. Our people are usually talked into silence by the pro-capital punishment lobby that it is only in “rarest of rare cases”, as decided by the Supreme Court, that death penalty is given, suggesting as if since the law propounded this restriction, the number of executions has been considerably reduced. Unfortunately facts belie this: ironically, after the rarest of rare doctrine was propounded in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 whereas it was 37.7 per cent in 1970-80. For the High Courts the figures confirming death sentence rose from 59 per cent in 1970-80 to 65 per cent during 1980-90.

The vociferous opposition to the abolition of death penalty springs from the myth that it can lead to increase of murders. Facts show otherwise. Thus, in 1945-50 the State of Travancore, which had no death penalty, had 962 murders whereas during 1950-55, when death sentence was introduced, there were 967 murders.

In Canada, after the abolition of death penalty in 1976, the homicide rate has declined. In 2000, there were 542 homicides in Canada—16 less than in 1998 and 159 less than in 1975 (one year prior to the abolition of capital punishment).

A survey conducted by the United Nations in 1988 concluded that research has failed to provide any evidence that executions have a greater deterrent effect than life imprisonment.

In 1997, the Attorney General of Massachusetts (USA) said:
There is not a shred of credible evidence that death penalty lowers the murder rate. In fact, without death penalty the murder rate in Massachusetts is about half the national average.

A survey released in September 2000 by The New York Times found that during the last 20 years the homicide rate in the states with death penalty has been 48 per cent to 101 per cent higher than in the states without death penalty.

Death penalty has been abolished since 1965 in the UK. The membership of the European Union is dependent on having no death penalty. This has been done obviously in the confidence that murders do not get automatically reduced by retaining death penalty.

The South African Constitutional Court unanimously ruled in 1995 that death penalty was unconstitutional as it constitutes “cruel, inhuman or degrading treatment or punishment”.

The grievous danger of irreversibility and innocents being executed is no panic reaction considering that 500 people have been executed in the United States since the Supreme Court reinstated death penalty in 1976.
Since 1973, 123 prisoners have been released in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death.

The Baldus report prepared in the United States found that if a homicide victim was White, his or her killer was four times more likely to get death sentence than if the victim were Black. The same disadvantage will occur in India in case of the Dalit and the Poor.

This very question was asked of the Home Ministry in 2005 by President Dr A.P.J. Abdul Kalam: why is all those on death row being the poorest of the poor, remains well known but officially unacknowledged?

So far 133 countries, from all regions of the world, have abolished death penalty in law or in practice and only 25 countries carried out executions in 2006, a recorded 1591 executions compared to 2105 in 2005.

The community of states has adopted four international treaties providing for the abolition of death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights and the Protocol to the American Convention on Human Rights provide for the total abolition of death penalty but allow states wishing to do so to retain death penalty in wartime as an exception.

There are no exact figures of executions having taken place. However in 1989 the Attorney General of India informed the Supreme Court that between 1974 and 1978, 29 persons were executed. The government announced in Parliament that 35 executions had been carried out in the three years between 1982 and 1985. And in 1997 the Attorney General of India informed the UN Human Rights Committee that between 1991 and 1995, 17 executions had been carried out.
On November 29, 2006, in a response to a question in the Rajya Sabha (Upper House) of Parliament, the Minister of Home Affairs reported that at present mercy petitions of 44 persons were pending before the President of India, a number of which had been pending since 1998 and 1999. (vide Lethal Lottery Publication by Amnesty International India and PUCL, Tamil Nadu and Puducherry, 2008)

The last execution took place in August 2004. Even in a judgment in 2006 in Aloke Nath, the Supreme Court candidly admitted that the so-called rarest of rare case for imposing capital punishment was too vague and stated: “No sentencing policy in clear terms has been evolved by the Supreme Court.” Is that not enough reason for abolishing death penalty because otherwise vagaries and fancies will determine the sentencing?

World opinion is now almost wholly veering round to the abolition of death penalty. Is it not embarrassingly shameful that our land of Lord Gautam Buddha, Lord Mahavir and the apostle of non-violence, Gandhi, should present such a negative face against Human Rights which embody the Right to Life?

The author, a retired Chief Justice of the Delhi High Court, is the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net / rsachar23@bol.net.in

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