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To Kill or Not To Kill

Written by: Hariharan Srikanth - Student of Gujarat National Law University, Gandhinagar, Gujarat
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Article 21 of the Constitution of India states “No person shall be deprived of his life except according to the due process established by law.” There is a great possibility that the due process established might not be followed as per the prescribed law.

In Makhan Singh Tariska v. State of Punjab[2], “Before a person is deprived of his life the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.”

In Rajendra Prasad v. State Of Uttar Pradesh[3], Justice V.R.Krishna Iyer was of the opinion of not imposing death penalty. He quoted Benjamin N Cardozo from The Nature of the Judicial Process by saying, ” If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors[4].” Hon’ble Judges have to shed their traditional way of looking at death penalty and take a lighter stand towards the convict. They should break the usual practice and speak out the pulse of human life and dignity. They should not be helpless and submit themselves to this horrendous practice.

They should set a benchmark to human life and its existence with dignity. He quotes Lok Nayak Jayprakash Narayan by saying, “To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away from their path and their mental condition sufficiently improved to become useful citizens, in a minority of cases, this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man's dignity and make society more human[5].”

In an American case, Field J. in Munn vs. Illinois stated “By the term ‘life’ we mean something more than survival and not merely animal existence[6]. It also includes the use of the limbs and faculties of the body which the body communicates with the outer world.”. Life is the most precious thing that a person can have, absence of which questions the very existence of mankind. The Hon’ble Supreme Court should keep in mind the best interest of the society while awarding death sentence to the accused. This Hon’ble Court should take into consideration whether the established law has been followed in black and white.

In a case of K. Venkatesh v. State of Andhra Pradesh, where the Andhra Pradesh High Court did not give the patient Right to Die or Euthanasia. When a person can be denied his Right to Die by a Court then a how Court take away the life of the person? As Mahatma Gandhi quotes, “Destruction of individuals can never be a virtuous act. The evil doers cannot be done to death. Today there is a movement aloof to abolish death penalty. The prisons need to be converted into hospitals as if they are ersons suffering from a disease.”

 Justice V.R. Krishna Iyer quotes, “The spirit of a man is at the root of Article 21 of the Constitution of India, personal liberty makes for the worth of the human person[7].”
Crime breeds crime and murder breeds murder. The Hon’ble Courts of this country should keep in mind the best interest of the society while passing any horrendous sentence like death penalty. The Hon’ble Court must keep in mind the morale of the society while passing any judgement like death penalty. As Baccaria quotes, ”All Capital Punishments are wrong in itself and unjust. There are two ways in which death sentence could be justified. Firstly, if such a sentence would prevent a revolution against a popularly established government. Secondly, if the execution was the only way to deter others from committing a crime[8].” The Court should definitely take into account the pulse of the society while giving the sentence of death penalty. It should take into consideration whether the judgement passed would prevent others from committing the crimes. Death Penalty is not the answer for all the crimes. We need a humane solution for this.

Death Sentence is the most horrendous and grotesque act. It would be better for this Hon’ble Court, in the interest of the welfare of the society, to find a more humane solution to death penalty. Legal vengeance shall not be there towards the accused. As Justice V.Krishna Iyer asserts in accordance with Stockholm Declaration of Amnesty International[9], “Death Penalty is not only physically but psychologically brutal, referring to the lengthy period between sentencing and execution as ‘lingering death’.” He asserts that by application of death penalty, it contradicts the very sanctity of human life and human society. He also forcefully asserts that all the civilized countries have abolished death penalty as a symbol of their respect to human life, and expresses deep anguish that we in our country still cling to it with little regard to the basic rights of man[10].

In a landmark judgement passed by Hon’ble Justice P.N. Bhagwati, in Bachan Singh Anr. v. State of Punjab[11], he says and quotes George Bernard Shaw “Criminals do not die by the hands of the law”. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society. Murder and capital punishment are not opposites that cancel one another but similars that breed their kind."  
In Ediga Anamma v. State of Andhra Pradesh[12], Justice V.R.Krishna Iyer took a lighter stand while evaluating death penalty. He recognised the need to abolish death penalty. He also envisaged that it as India progresses in this 21st century there would be a need to give importance to human life and dignity and also abolish death penalty. He also quoted the Ontario court of appeal saying that death sentence is irrevocable, grave and serious. He also marks death penalty as ‘brutal’ and ‘horrendous’. It is a cold-blooded judicial murder.

The Hon’ble Supreme Court in Allauddin v. State of Bihar[13] gave some guidelines which are essential to impose death penalty. They are
a) The circumstances of the ‘offender’ need to be considered apart from the circumstances of the ‘crime’.
b)  Life imprisonment is a rule and death penalty is an exception. Death penalty can be imposed only when life imprisonment is all together an inadequate punishment.
c) The Court should also consider the aggravating and mitigating factors of the case and full weightage has to be given to the mitigating circumstances or factors.

The punishment for all murders is not death penalty. The Hon’ble Justice Sarkaria in Maneka Gandhi’s case[14] says that Section 302 of Indian Penal Code does not violate the provisions of the Article 21 of the Constitution of India[15]. He also says that the Founding Fathers of Indian Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would ‘defile the dignity of the individual’ within the contemplation of the preamble to the Constitution[16] . The Hon’ble Judges might be of the view that by awarding the death sentence to the accused they have given justice to the aggrieved party. But this would have feeble affect on the crime rate. Death Sentence is similar to the murder of a person. It is, in short, a judicial murder. This is a judicial assassination of the accused.

The international fraternity is making its own strenuous efforts to abolish death penalty and create a more humane society and make life worth living for the convicted. For instance, Article 5 of the Universal Declaration of Human Rights[17] states that “No shall be subjected to torture or to cruel, or to degrading treatment or punishment[18].” It is enshrined in the very declaration on human rights that death penalty need to be abolished as it is a torturous, cruel and gruesome act. The imposition of death penalty degrades the very existence of human life.

 Article 6(4) of the International Covenant on Civil and Political Rights that adopted on 16th December 1966 and came into force on 23rd March 1976 says,” Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases[19].” The main aim of this covenant was to recognize the need to abolish death penalty and also to persuade the countries that have not abolished death penalty to have a more humane approach towards human life[20].

Europe represents the only world region which has eliminated death penalty completely. It is a death penalty free zone. Amnesty International’s statistics show that only 84 countries have retained death penalty among which India is one of them. Developments in international instruments certainly demonstrate an enormous political will to abolish death penalty worldwide and make right to life a universally and unconditionally implemented standard[21].

The Sixth Protocol of European Convention of Human Rights in 1982 provides for complete abolition of death penalty in all European member nations. However, there is no conviction that crime trends could be influenced through, threat or enforcement of death penalty.

 British Justice System has abandoned death penalty for murder for two decades now (Homicide Act, 1957) without escalation of murderous crime. Attempts to get round the Murder (Abolition of Death Penalty) Act, 1965 have failed in Parliament and as Barbara Wooton says, 'Capital punishment thus appeared to be itself sentenced to death' for murder. To quote the Royal Commission's recommendation for retention after Parliament has abolished death penalty is only of historical interest: "After the Abolition Act had been in force for over seven years, the Criminal Law Revision Committee considered whether any further changes in the penalty for murder were desirable. Their conclusions were almost entirely negative[22]." However, in England capital punishment had been abolished on an experimental basis in 1965 and was made permanent in 1970[23].

In America also there have been efforts to abolish death penalty. It has been argued that death penalty has been unconstitutional as a cruel and unusual punishment[24]. Thus, violating the Eighth Amendment of the Constitution of United States which says “ No person shall be deprived of his life except according to the due process of law.”

  On 6 June 1995 the South African Constitutional Court declared the death penalty to be incompatible with the prohibition of "cruel, inhuman or degrading treatment or punishment" under the country's interim constitution. Eight of the 11 judges also found that the death penalty violates the right to life[25]. When an African nation can take such a novel and humane step towards the life of man then a Democratic Republic India can definitely make a bench mark by abolishing death penalty in the South-Asian region.

In a paper presented by Amnesty International titled ‘ Civil and Political Rights, Protection of Personal Integrity and Abolition of Death Penalty’ at the World Congress on Human Rights held at New Delhi in 1990, studied that though there have been several cases imposing death penalty, they observed that the crime rate has not come down[26]. There has always been a frivolous assumption that death penalty would bring in a kind threat among the people and would lead to the increase in the crime rate and criminals. A better world is one without legal knifing on life[27].

However, to allow death penalty by the state and execute the convicted offender is no more justifiable than a crime. It is a great miscarriage to justice and many such innocent persons have been executed[28].

 To sum it up in the words of Fali.S.Nariman. a senior Supreme Court Advocate, “It is time for India to take consideration of the International hue and cry which has been going on and take a humane step towards mankind and his existence with dignity.”
[1] II Semester B.A. LLB (Hons.) Gujarat National Law University
[2] AIR 1952 SC 27
[3] AIR 1979 SC 916
[4] Ibid.
[5] Ibid.
[6] Indian Constitutional Law by Prof. MP Jain Wadhwa & Co. Nagpur.
[7] Ibid.
[8] Constitutional Law of India by H.M.Seervai Silver Jubilee Edition Volume 2 Universal Law Publishing Co Pvt.Ltd. Pg 1190
[9] This is a conference held by Amnesty International on death penalty in 1977.
[10] Ibid.
[11] AIR 1982 SC 1325
[12] AIR 1974 SC 799
[13] AIR 1989 SC 1456
[14] AIR 1978 SC 597
[15] Constitutional Law of India by H.M.Seervai Silver Jubilee Edition Volume 2 Universal Law Publishing Co Pvt.Ltd. Pg 1200.
[16] Ibid.
[17] Came into force on 10th December 1948.
[18] accessed on 22nd January 2008 at 17:34hrs. The Universal Declaration of Human Rights came into being on 10th December 1948.
[19] visited on 20th January 2008 and accessed at 17:05hrs.
[20] Ibid.
[21] Ibid.
[22] Rajendra Prasad Vs. State of Uttar Pradesh AIR 1979 SC 916
[23] An Introduction to Law by Phil Harris Seventh Edition Cambridge University Press Pg 447
[24] A Textbook of Jurisprudence by G.W.Paton Fourth Edition Oxford University Press Pg 373.
[25] This is taken from the Stockholm Declaration of Amnesty International on Abolition of Death Penalty. Visited on 21st January 2008 accessed at 19:06hrs.
[26] V.R.Krishna Iyer: A Living Legend by P.Krishnaswamy Universal Law Publishing Co. Pvt Ltd.
[27] Ibid.
[28] Psychology and Law: A Critical Introduction by Andreas Kapardis Second Edition Cambridge University Press Pg 174.

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