ABOLITION OF DEATH PENALTY

Mahatma Gandhi, who preached non-violence and through the same was successful in
attaining independence for colonial India, said the above lines. Eye for an eye refers to
vengeance which contrasts the Gandhian ideology of non-violence. In contrast, India has
decided to retain the most brutal form of punishment death penalty, which has been
abolished by 131 other countries.

Capital punishment violates human rights and therefore cannot be justified for any reason.
According to the Universal Declaration of Human Rights, every human has the inalienable right to
life and the right not to be tortured or subjected to any cruel, inhuman or degrading punishment.
The death penalty is not always smooth and painless, and therefore it is torture. Every legal
system is fallible, and it would therefore be very possible for innocent lives to be extinguished.
The death penalty can be unfairly administered to the poor and minorities. The death penalty
does nothing to improve society as it takes away any chance of rehabilitation and redemption.
The death of a criminal is not for humans to decide, and will only serve as revenge for the victims,
not justice. Capital punishment, also known as the death penalty, is a state-sanctioned
practice of killing a person as a punishment for a crime. The sentence ordering that an
offender is to be punished in such a manner is known as a death sentence, and the act of
carrying out the sentence is known as an execution. A prisoner who has been sentenced to
death and awaits execution is condemned and is commonly referred to as being "on death
row". According to the Universal Declaration of Human Rights, everyone has the inalienable right
to life1. It is a clear breach of this right if the death penalty is used. This right cannot be forfeited
even by committing a crime. The death penalty only serves the purpose of revenge, not justice.
Capital punishment violates human rights because as they are created by humans, all legal
systems are fallible. It is extremely unwise to have the death penalty because there is always the
possibility of error. It is unacceptable that even one innocent person could be executed. Where
the presumption of innocence holds true, a guilty man walking free should be preferred to an
innocent man being wrongfully convicted. Furthermore, the use of capital punishment violates
various aspects of human rights. After World War II the United Nations General Assembly
adopted the Universal Declaration of Human Rights, including the right to live. Therefore, as the
USA is a pioneer country of the United Nations, the government should consider the existence of
the death penalty as a contradiction to the United Nations objectives. Another important
document which prohibits the use of capital punishment is “The International Covenant on Civil
and Political Rights”, which states:” every human being has an inherent right to live, which shall
be protected by law, and no one shall be arbitrarily deprived of his life.

Crimes Punishable by Death Penalty in India are Aggravated Murder, Terrorism-Related

Offenses [The usage of any explosive of a special category which is likely to endanger the lives
of people or cause serious damage to property is an offense punishable by death (Section 3(b)
of the Explosive Substances (Amendment) Act,2001)], Aggravated Rape[A rapist who during
the course of the crime causes the death of the victim or causes the victim to be left in a
“persistent vegetative state” shall be punished by death under the Criminal Law
(Amendment) Act, 2013.], Treason[The act of Waging or attempting to wage war against the
government and assisting officers, soldiers, or members of the Navy, Army, or Air Forces in
committing mutiny are punishable by the death penalty. (Article 121 and 136 of the Indian
Penal Code,1860)], Kidnapping [The unlawful detaining or kidnapping of a person is an act
punishable by death even if the kidnapper only threatens to harm the victim or actually does
so. (Article 364 A of the Indian Penal Code)].

Article 21 of the Constitution of India guarantees to its citizens the right to life and personal
liberty which includes the right to live with dignity. According to this article, no person shall
be deprived of his life and personal liberty except according to the procedure established by
law. This means that a person’s life and personal liberty can be disputed only if that person
has committed a crime. Therefore, the state may take away or abridge even right to life in the
name of law and public order following the procedure established by law. But this procedure
must be “due process” as held in Maneka Gandhi vs. Union of India (1978). The procedure
which takes away the sacrosanct life of a human being must be just, fair and reasonable.

In India, non-governmental organizations are fighting against inhuman, degrading and cruel
punishment and protection of human rights. Although judiciary has evolved the principle of
“rarest of rare cases” and has indicated that it is with special reasons that death penalty must
be imposed in cases of exceptional and aggravating circumstances where offenses are very
grave in nature, the application of the principle itself, as evident from a plethora of cases, is
in violation of Constitutional provisions. Justice V.R. Krishna Iyer, an eminent jurist and former
judge of the Supreme Court of India was himself against death sentence. According to Justice
Iyer, life is given by God and can be taken away by God himself. The state does not have the
right to take away a person’s life. Execution by state amounts to inhumanity. He further stated
that Gandhi’s country must set an example by abolishing death penalty. Even if supported by
a judicial decision, the state must not hang a person. The condition of people undergoing
death sentence is quite horrendous when compared to the Indian Context. Various studies
conducted by different organizations have found that the death convicts undergo both
physical and mental torture while waiting for the news on what day they are to be executed.
Taking the case of Devendra Pal Singh Bhullar, who was accused in the 1993 Delhi bomb blast
case, was languishing in jail till his death sentence was commuted to life imprisonment in
2014. The prisoners themselves are “mentally dead” as they keep on waiting for the day of
their execution which in fact keeps on getting delayed.

In the case of Bachan Singh vs State of Punjab (1980), Justice Bhagwati in his dissenting
opinion stated that death penalty is necessarily arbitrary, discriminatory and capricious. He
further stated that it was indeed the poor who are subjected to the gallows and the rich and
the affluent usually escape from its clutches. This is indeed a gross violation of Articles 14 and
16 of the Constitution. In Shashi Nayar vs Union of India (1991), the death penalty was again
challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report
but the court turned it down stating that the time was not right for hearing such a plea. Also,
the plea to consider hanging till death as barbaric and dehumanizing was rejected.

In the recent judgment in Shatrughan Chauhan Vs. Union of India (2014), the Supreme Court
of India has laid down certain guidelines as to how death penalty can be converted into a life
sentence. The same was implemented in the case of Union of India vs. Sriharan (2015),
popularly known as the Rajiv Gandhi assassination case whereby the death sentence of the
killers of Rajiv Gandhi was reduced to a life sentence by the Supreme Court of India.

Fully agreeing with the recommendation of the Law Commission in its 262nd Report. The Law
Commission in its 262nd Report has called for the abolishment of the death penalty in all
cases except for those relating to terror cases. This was in the wake of the hanging of Yakub
Abdul Razak Memon who was hanged on the early morning hours of 30th July 2015 in spite
of his advocates trying to stay the execution and convert it into a life sentence. Legislation
enacted by the Tripura Assembly has also called for the abolishment of the death penalty in
India. Also, certain guidelines have to be laid down as to the execution of death warrants
within a specified time limit. In case there is an unconditional delay (except in cases of terror),
then provisions must be made whereby the mental condition of the convict, his death
sentence can be converted into life imprisonment. Execution to death must not be for political
purposes as seen in the recent case of Yakub Memon. Above all only the supreme creator has
the right to take the lives of the people on earth and not the state or any other organ of the
state.

Therefore, death penalty is itself an offense against humanity. God has given us life and no
state has the right to take it. Thus, the process of death sentence should be declared
unconstitutional and as an offense against human rights. The government must take into
consideration the negative aspects of sentencing to death and must take steps to delete such
provisions relating to death sentence away from the law. The process of death sentence is
long and therefore the convicted prisoners undergo both physical as well as mental torture.
This causes them to literally beg for death. Such a situation must not be faced by any human
being, be it a convict or not. Although actual executions of convicts punished with death
penalty are decreasing in number, yet a lot has to be done to fasten the procedure for those
waiting on death row and also comply with India’s international commitments.