[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

May 5



INDIA:

Why The Use Of The Death Penalty Needs To End


It is strange that we are currently governed by a system that directly relies 
on the use of vastly differentiated standards of what makes the "rarest of 
rare". The definition of the "rarest" is left to judges governed by personal 
viewpoints on what constitutes extreme rarity.

Capital punishment has shown itself to be ineffective in having any deterrence 
to criminals. Capital punishment is used by the State to placate its citizens 
by sending the message that it is getting rid of the criminal, completely. The 
citizenry don't seem to have thought far enough to understand - or perhaps have 
ruminated over and accepted - that the responsibility of execution belongs to 
them individually.

The taxpayer pays for the execution of criminals governed by a system that did 
not have any deterrence on them in the first place.

The taxpayer has failed to consider even the inhumane method of execution: 
death by hanging. The focus in jurisdictions that practice capital punishment 
has been on finding less painful, or painless, methods of administration of 
death. Justice Bhagwati, the lone dissenter in Bachan Singh's case, described 
in detail the method of execution of the death penalty which makes for 
harrowing reading.

The situation in India as it exists today is reliant upon the judiciary giving 
out the death penalty only in the rarest situations. The crime has to be of 
such repugnance that it can be classified as being beyond comprehension. The 
criminal, having committed such a crime, has lost all value to society and is 
beyond redemption.

It has, however, proved itself a highly contentious area of litigation. The 
biggest issue by far is the impossibility of standardisation of what 
constitutes a crime repugnant enough. It is left to the wisdom of the 
adjudicating authority to decide what crimes can be considered the rarest of 
the rare. The logical conclusion then is this: death must be awarded by courts 
in all cases that exceed the case that is the most probable in the "rarest of 
rare" category.

This has led to the discrepancies in the application of capital punishment. 
Crimes are looked at through subjective degrees of scrutiny. What may 
constitute an offence punishable by death in one case would not apply to the 
next.

Therefore, the focus in recent years has been on the lack of uniform 
application of the death penalty and the procedural aspects of death penalty 
litigation across the higher and lower judiciary. The focus has been augmented 
by calls for the development of standards and guidelines to govern the use of 
the death penalty.

Further, civil society has called for better treatment of convicts awarded the 
death penalty and on death row. This has shown itself in judgments passed by 
the Supreme Court in 2015 where it has focused not on the question of the 
constitutionality of the death penalty itself, but the question of the 
treatment given to such convicts awarded the death penalty in terms of mental 
and physical agony. The case of Shabnam v. Union of India focused on the right 
of condemned prisoners to die with dignity, and that the execution could not 
take could not take place in an arbitrary, hurried and secret manner.

In recent years, 3 executions have taken place. All three executions have been 
on convictions on terror and terror-related offences. It certainly appears that 
Supreme Court judges are fighting the mandatory imposition of capital 
punishment for the "rarest of the rare" cases. In most cases, the conviction 
made by the lower courts is upheld but the sentence of death commuted to life 
imprisonment. There is, therefore, a tendency among judges of the Supreme Court 
to impose a virtual moratorium on the death penalty, except in cases involving 
terrorism.

It is interesting to note the case of Anders Breivik. Breivik carried out the 
deadliest attack on Norwegian soil since the Second World War. In 2011, Breivik 
killed 77 people, most of them children.

Norway did not execute Breivik. Norway and Western Europe do not have capital 
punishment. It showed the maturity of the legal system, and of the progress of 
development of humanistic thought to a continent which had caused itself great 
injury over ferocious wars.

The issue of the use of the death penalty is one that has only one answer: we 
have to get rid of it, in its entirety. Beyond the problems in the correct 
execution of the doctrine of "rarest of the rare", capital punishment itself 
has been the subject of criticism historically as well as contemporaneously on 
very basic grounds: that the State does not have the right to take away life.

Modern philosophical thought finds it repugnant to be party to the execution of 
individuals, whatever their crime. The viewpoint has been to try and reform the 
convict into a contributing member of society. Even if reform has been found to 
be impossible, modern philosophers such as Mohandas Gandhi, Fyodor Dostoevsky 
and Bertrand Russell have balked at the simple fact that capital punishment is 
a euphemism for legalized death.

For thinkers such as these, the focus has been on the influence of social 
psychology vis-a-vis the individual perspective. Capital punishment, in their 
view, would put the responsibility of execution of convicts on each citizen of 
their nation, making it a personal responsibility. Social psychology, on the 
other hand, tends to dilute the responsibility of the execution itself on the 
basis of the "greater good".

One of the threads connecting thinkers such as the ones noted above are their 
dedicated tendencies towards pacifism, non-violence and forgiveness. It is 
these principles that India as a nation needs to practice. To the architect of 
the constitution, Dr. B.R. Ambedkar, capital punishment went against the 
principles of non-violence and the spirit of welfare on which the nation was 
formed.

In a global society witnessing the emergence of increasingly insular and 
repressive governments, India needs to show the path to non-violence and 
forgiveness. India has the resources, history and legal and philosophical 
thought to be able to move beyond what is an outdated method of punishment. All 
that is required today is political will and general consensus.

(source: The Citizen)