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Capital Punishment and human rights perspective.

Abstract:
The issue of death sentence or capital punishment is hotly debated in not only our country but also worldwide. This particular issue attracted the general public, the government and also the non- governmental organizations of our country.

This particular research work sees the Capital punishment with the help of human rights perspective. The research work briefly introduces the topic. Then it talks about the international scenario regarding the capital punishment, the take of international conventions on the issue of death sentence.

Further it talks about the Indian scenario regarding the issue of death penalty. The Indian scenario is divided in three parts namely the legislation. The constitutional Law and the Judicial approach towards the issue of death sentence with human rights perspective in India.

Lastly, the research work concludes by comparing various situations where some of the decisions have been proved to be arbitrary and unfair in the eyes of human rights law. And the assignment encourages life imprisonment as a substitute for Capital Punishment.

Introduction
A human being is entitle to some basic rights which includes the birth right. The death of a human being is something which is for sure a certain event and is of a irreversible nature. Death Sentence is called the justice of revenge by the statesman. Death penalty means punishment by execution provided to a person.

Among the countries like the U.S., Japan, Pakistan, South Korea and China, India is also included where the death sentence is awarded. The country which tops the execution of death sentence is China. In some Arab countries, beheading is done in public and a method of stoning in public also prevails.

The death sentence or Capital punishment is something which is to be applied in the rare of the rarest cases. There are so many debates, which are raging the world over amongst social activists, legal reformers, judges, jurists, lawyers and administrators for the abolition of death penalty. Human beings are neither angels nor they are demons who will only do either only good or only the bad.

With respect to human nature, it is not possible to completely eliminate the crime from the society, the same is not even imaginable. Criminals are one of the part of our society and is our duty to correct them and make them a sober citizen. Attitude towards criminals should also be changes so that they may enjoy some of their basic human rights.

But if we consider the point of view of victims, it is very much necessary to provide them justice, otherwise there are high chances that they may take law in their own hands. And if this happens then it may lead to anarchy. Therefore in order to avoid this situation it is necessary to ensure prescribed and proportionate punishment.

International Scenario:

The United Nations (UN):

In cases of death penalty, the UN General assembly recognizes that there should be a need of high standard for fair trial which is to be followed by each and every country. The procedures which are to be followed must be fair, reasonable and just. There are several resolutions with the help of which the UN suggested the protection of human rights for the person to whom capital punishment is granted, which were again approved by Economic and Social Council in resolution No. 50 of 1984.

They are summarized as follows:
  1. The countries who have not abolished the capital punishment, should grant it in only rare of the rarest cases.
  2. Capital punishment may be imposed only by the law established for the time being in force. It should not have a retrospective effect.
  3. Persons below the age of 16 should not be awarded death penalty.
  4. Pregnant women, new mother or insane persons are exempted from death penalty.
  5. Capital punishment must be imposed after following the procedure mentioned in article 14 of ICCPR and there should be no place for any reasonable doubt or any further explanation.
  6. The person to whom death sentence is imposed should have a right to appeal in the higher court and steps should be taken to execute such right to appeal.
  7. The person to whom the death sentence is imposed should have the right to seek pardon or commutation of sentence.
  8. While the appeal, pardon or commutation of sentence proceeding is pending, the capital punishment should not be executed.
  9. There should be a way of minimum possible suffering, while execution of death sentence.

The European Union:

According to 6th protocol of European Convention on human rights 1982, there is complete abolition of death sentence in peacetime by all the members.
On 3rd May, 2002, the 13th protocol to the European Convention for the protection of Human rights and Fundamental freedoms was open for signature of member state which provides for the total abolition of death penalty in all circumstances. Most of the countries in the European Union have abolished the death sentence. Capital punishment has been recognized as cruel, degrading and inhuman punishment which infringes upon the basic human rights of the accused as expressed in Article 3 of the European Convention on Human rights.[1]

Indian Scenario
  • Legislation

    The section 53 of the Indian Penal Code, 1860 provide for death sentence and imprisonment of life as alternative punishments.[2]
    The Supreme Court has declared that section 303 is unconstitutional because it violates article 14 and 21 of the Indian Constitution in the case of Mithu V. State of Punjab.[3]Though the people of India as well as the non governmental organizations are fighting against the inhuman, and cruel punishment and protection of Human rights, still the capital punishment remains in force in the country. Although the principle of “rare of the rarest cases” is evolved by the judiciary, which indicates that death sentence is to be imposed only to the persons who have committed the offence which is of grave nature.
     
  • Constitutional Law

    Article 21 of the Indian Constitution guarantees right to life and personal liberty to all the people which also includes the right to live with human dignity. No person shall be deprived of his or her right except according to the procedure established by law. This clearly indicates that state may take away even the right to life in the name of Law and Public Order following the procedure established by law.

    But the procedure must be “due process” as held in the case of Maneka Gandhi V. Union of India[4]. The procedure which is to be followed while imposing capital punishment must be just, fair and reasonable. Therefore, fair trial following principles of natural justice and procedural law are most important when capital punishment is to be imposed. Our Indian Constitution is also in tune with procedural requirements of Natural law which constitutes the inner morality of Law which may be stated as follows:
    1. Death sentence is to be used very sparingly only in special cases.
    2. Death sentence is treated as an exceptional punishment to be imposed with special reasons.
    3. The accused has a right of hearing.
    4. There should be individualization of sentence considering individual circumstances.
    5. Death sentence must be confirmed by the High Court with proper application of mind.
    6. There is right to appeal to the Supreme Court under Article 136 of the Constitution and under section 379 of the Cr.P.C. The Supreme Court should examine the matter to its own satisfaction.
    7. The accused can pray for pardon, commutation, etc. of sentence under sections 433 and 434 of the Cr.P.C. and under the Articles 72 and 161 of the President or the Governors. Articles 72 and 161 contain discretionary powers of the President and the Governor beyond judicial power to interfere on merits of the matter; though judiciary has limited power to review the matter to ensure that all relevant documents and materials are placed before the President or the Governor. However, the essence of the power of the Governor should be based on rule of law and rational considerations and not on race, religion, caste or political affiliations.
    8. The accused has a right to speedy and fair trial under Articles 21 and 22 of the Constitution.
    9. The accused under Articles 21 and 22 has the right to be not tortured.
    10. The accused has the freedom of speech and expression within jail custody under articles 21 and 19 of the Indian Constitution.
    11. The accused has the right to be represented by duly qualified and appointed legal practitioners.
       
  • Judicial Approach

    In the case of Jagmohan Singh V. State of U.P.[5], it was argued that Death Sentence for murder violate the Articles 21 and 14 of the Indian Constitution. It was contented by the counsel of appellant that when there are discretionary power conferred on the judiciary to impose Death Sentence or life imprisonment, imposing death sentence is violative of Article 14 of the Constitution if in two similar cases one gets death sentence and the other gets the life imprisonment as the punishment.

    The Supreme Court held that there is no point in this argument. If the law has given the judiciary the discretionary power in the matter off sentence to be passed, it is difficult to expect that there would be uniform application of Law and perfectly consistent decisions because facts and circumstances of one case cannot be the same as of the other case and thus this will remain sufficient ground for scale of values of judges and their aptitude and perception to play a role.

    The counsel of applicant also contended that death penalty not only violates Article 14 but also the Articles 19 and 21 of the Constitution of India. Here procedure is not clear because after the accused was found guilty, there is no other procedure established by law to determine whether death sentence or other less punishment is appropriate in that particular case.

    But the above contention was rejected by the Supreme Court and the court held “in important cases like murder the court always gives a chance to the accused to address the court on the question of death penalty”. The court also held “deprivation of life is constitutionally permissible provided it is done according to the procedure established by the Law.

    The death sentence per se is not unreasonable or not against public interest. The policy of the law in giving a very wide discretion in the matter of punishment to the judges has its origin in the impossibility of laying down standards. Any attempt to lay down standards as to why in one case there should be more punishment and in other less punishment would be an impossible task.

    What is true with regard to punishment imposed for other offences of the code is equally true in the case of murder punishable under section 302 I.P.C. No formula is possible that would provide a reasonable criterion for infinite variety of circumstances that may affect the gravity of the crime of murder. The impossibility of laying down the standards is at the very core of the criminal law as 'administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment'.[6]

    In the case of Rajendra Prasad V. State of U.P[7]., Justice V.R. Krishna Iyer , observed:
    “…………… the humanistic imperative of the Indian Constitution, as paramount to the punitive strategy of the penal Code, has hardly been exploded by the courts in this field of 'life or death' at the hands of the Law. The main focus of our judgment is on this poignant gap in human rights jurisprudence within the limits of the Penal Code, impregnated by the Constitution …….. in the Post-Constitutional period section 302, IPC and section 354(3) of the Code of the Criminal procedure have to be read in the human rights of Part III and IV, further illuminated by the Preamble to the constitution.”

    The Court held that according to Article 19(2) to 19(6) of the Indian Constitution, in cases where security of state and society, public order and the interests of the general public is involved, than it is constitutionally permissible to swing a criminal out of corporal existence. Social justice has to be read with reasonableness under article 19 and non-arbitrariness under Article 14. The Court also observed that there are some extra ordinary grounds, which makes the court left with no option other than to execute the criminal in order to progress and survive as a society. Justice V.R. Krishna Iyer was himself in favour of abolition of death Penalty.

    In the case of Bachan Singh V. State of Punjab[8], the Supreme Court overruled its prior judgment pronounced in the Rajendra Prasad V. State of U.P., by the majority of 4:1 and the Court held that Capital Punishment under section 302 of IPC does not violate Article 21 of the Indian Constitution. India is signatory to the International Covenant on Civil and Political Rights and this convention does not abolish the imposition of Death penalty wholly. But the Death sentence must be reasonably imposed and should not be arbitrary in nature. Death Sentence should be imposed in most serious crimes.

    In this case the Court held that:
    “Judges should not be blood thirsty. A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws' instrumentally. That ought not to be done save in the rarest of the rare cases when the alternative option is unquestionably foreclosed.”

    In the case of Vatheeswaran V. State of Tamil Nadu[9], the issue of the case was whether delay in execution of capital punishment violates article 21 of the Indian Constitution and whether on this ground death sentence may be replaced by life imprisonment. The Court held that delay in execution of death penalty is unjust, unfair and unreasonable and inhumane, which also deprives the convict of his basic human rights, guaranteed under Article 21 of the Indian Constitution i.e. right to life and personal liberty.

    The Court observed:
    “ Making all the reasonable allowance for the time necessary for appeal and consideration of reprive, we think that delay exceeding two years in the execution of a sentence to death should be considered sufficient to entitle the person under sentence to death to invoke Article 21 of the Constitution and demand quashing of the sentence of death”.

    Therefore, due process i.e. just, fair and reasonable process as held in the case of Maneka Gandhi[10] does not only end with reasonable pronouncement of death sentence rather it extends till the proper and due execution of sentence. In this case there was a delay in execution for a period of two years.

    The Court held that speedy trial is an integral part of Part III of the Constitution, therefore, delay in the execution process violates the fundamental right of the convict as every moment that he waited for execution was terrorizing for him.

    In the case of State of U.P. V. Dharmendra Singh[11] the U.P. High Court commuted death sentence to life imprisonment on the ground that accused had spent three years in a death cell after final order of the court for death because he was dying every moment.

Conclusion
Death as a penalty has plagued human mind perennially. If death penalty is imposed, it is necessary to fulfill the conditions for the protection of human rights in Criminal Justice Administration in India. Delay in execution is not something which is infrequent in our country and therefore it violates Article 21 of the Indian Constitution as it is infringement of basic human rights of a person and also Universal Declaration of Human rights. Any punishment to a crime must be fair, just, adequate, reasonable and proportionate to the crime and punishment should not in any case be excessive to the nature of the crime.

In the cases where the execution gets delay, the convict, during the time of his waiting for his execution gets more terrorized and it adds to his punishment which is considered as inhumane and degrading.

In the case of execution of Dhananjay Chatterjee[12] in 2004, after fourteen years in death cell and thereafter in the year 2006 Md. Afzal's instance of Capital Punishment, again started a debate concerning speedy justice, fair trial, protection of human rights of the persons under death sentence, their human dignity as well as the victimological perspective to maintain law and order in the society.

The issue of death penalty is hotly debated and has attracted the general public, the government as well as the non- governmental organizations in India. Though India has ratified most of the international conventions based on Human rights, still we have Capital punishment in our statutes. Our Judiciary says that capital punishment should be imposed only in the rarest of the rare cases with special reasons. The Article 72 of the Constitution of India confers the President with powers such as to grant pardon etc. and to suspend, remit or commute sentences in certain circumstances.

The sentence will be for death or for life imprisonment depends, in a large measure, on the court or the composition of the bench of the court. There are various judgments which shows that there are no fix principles to determine delay in execution of death sentence or any other factors. In the case of Dhanajay Chatterjee, there was a delay of fourteen years for the execution, still the punishment was not commuted to life imprisonment, whereas there are cases where the delay in execution was for two years, three years or nine years and the death sentence was commuted to life imprisonment stating that delay in execution violates Human Rights and fair procedure.

Is this not a violation of Articles 14 and 21 of the Constitution which enshrine fundamental and sacrosanct rights of human beings?
Because of arbitrary and discriminatory decisions, basic rights of accused are violated in inhumane and brutal manner which are against National Human Rights principles which envisaged in the Constitution and also against the Universal Human Rights ethos. The facts not at all prove that imposing death sentence has reduced the crime rates in the contemporary society; rather it has failed as a deterrent. Life imprisonment is enough for deterrence as well as for mental and moral metamorphosis of a human being.

End-Notes:
  1. For details see 13th protocol to the European convention for the protection of Human rights and fundamental Freedoms.
  2. These are as follows: (1) death sentence or (2) imprisonment for life, (3) Imprisonment with or without hard labour, (4) forfeiture of property and, (5) fine. Under Indian Penal Code, death sentence is alternative punishment for the following several offences such as; waging war against the government of India (section 121); Abetting mutiny actually committed (section 132) ; Giving or fabricating false evidence upon which an innocent person suffers death (section 184) ; Section 302 punishment for murder, abetment of suicide of child or insane person under section 305, section 307 punishment for attempt to murder by life convicts, section 396 dacoity with murder, but nowhere it is mandatory except under section 303 which deals with punishment for murder by a life convict.
  3. (1983)2 SCC 277
  4. AIR 1978 SC 597
  5. AIR 1973 SC 947, 1973 Cr. L.J. 330, 1973 SCC (Original) 162.
  6. See supra note 5, at 956-59.
  7. AIR 1979 SC 916
  8. AIR 1980 SC 898. See also (1980)2 SCC 684, 715 para 88.
  9. (1983)2 SCC 68.
  10. Maneka Gandhi V. Union of India, AIR 1978 SC 597.
  11. Decided on September 21, 1999.
  12. Dhananjay Chatterjee V. State of West Bengal and Ors. (2004)9 SCC 751

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