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Death Row

 

Editorial. Rajiv Sharma. II. VIII. XV 

 

WHEN A STATE KILLS

 


Rajiv Sharma-fnbworld By Rajiv Sharma

 

 

Hangman's Noose-fnbworld

 

As the civilization grew and the concept of human dignity and rights began to take shape, more and more people began to view the provision of death sentence as an instrument of tyranny of the state as well as a violation of their divine right to life. Portugal was the first civilized country to abolish what they called ‘legal murders’ in 1976. Thereafter 140 countries around the globe have already abolished death penalty either in law or in practice. Only three democratic countries namely The US, Japan and India have opted to retain the inhumane provision of the medieval era, thus far. Even in these countries the demand to repeal it is growing. The Law Commission of India has also been actively deliberating on this issue for some time now and is likely to give its report to the Supreme Court of India in a few weeks. 


However, the fact of the matter is that when many of us look into the merits and demerits of capital punishment, we find it difficult to defend it in the context of modern liberal era except by invoking the negative human traits like retribution, vengeance and deterrence. Whereas, human virtues of modern civilization like reformation, compassion and forgiveness clamour for its immediate abolition.

 

It is being largely felt by the modern thinkers that capital punishment is inspired by an urge to take appropriate revenge on the perpetrator of a heinous act. The protagonists of death penalty would often advocate the need to eliminate the convict in view of the sorry plight of the victims. Obviously, this is nothing but a demand for retributive justice based on avenging the victims’ agony and sufferings. Retribution, without any doubt, is an evil and inhumane attribute of human persona. When a human being commits murder(s), it is an evil act, unquestionably. But when a state kills a human being, there is nothing that transforms the act into a virtuous one. It continues to remain evil. 


Further, death penalty is an unjust act of revenge inflicted by the criminal justice system to satisfy the collective conscience of a retributive and vengeful society. It has been seen that in the countries where death penalty is legal, whenever, the collective conscience of society bays for the blood of a killer, the judiciary generally obliges. This has happened many times in the past. This will continue to happen. In India also, the Criminal Justice system that often succumbs to overwhelming war cries of revenge and vengeance, conveniently forgets that the guiding principal of Indian Criminal Jurisprudence is the reformation of the criminal and not his elimination. 


That capital punishment cannot even act as deterrence to criminal activities has been established beyond doubt. When the state kills, the message it gives is that it is acceptable to kill, as long as the state is doing the killing. The death penalty answers violence with counter-violence.  As American novelist Wendell Berry said, “Violence breeds violence”.  Therefore, the acts of violence committed in name of justice can never end violence. 


The empirical evidence suggests that the geographical areas of the world where death penalty prevails experience more incidents of violence, homicide or terror.  In many Islamic countries, where the states routinely kill the convicts and make it a public spectacle, the acts of murder as well as terror are on the rise. An FBI Unified Crime report published in the US emphasizes that the states in the US which have the provision for the death penalty show a 48-101% higher homicide rate than states without the death penalty. To quote another example, an international study of criminal violence analyzed data from 110 nations over a period of 74 years. It found that the death penalty does not deter criminals. Further, a former U.S. Attorney General Janet Reno stated not a single research could prove that it acts as a deterrent. Besides this, a perusal of crime data of different states of the US shows that the states which have abolished death sentence showed a marked decrease in commission of heinous crimes. Similarly, a perusal of list of 58 countries that have retained the death penalty show that overwhelming majority them have pathetic law and order conditions in their countries. Indeed, violence begets violence.


Apart from this, we are also aware of various pitfalls in Justice delivery system in many countries. It is a well established fact that human justice is prone to mistakes. Therefore as long as human justice remains fallible the risk of executing the innocent cannot be eliminated. Remember, death sentence is an irreversible act of violence by the state. The damage once caused cannot be undone in any way. It is reported that 95% of total convictions in India at session Court level end up in acquittal or commutation to imprisonment either in High Courts or in Supreme Courts. Obviously, errors of judgment are being made at one level or the other. Even in a country like America, where judicial system is much more transparent, there have been many instances of innocents being executed. A recent study published in the prestigious journal Proceedings of the National Academy of Sciences (PNAS) found that about 1 in 25 death row inmates is innocent. As per amnesty report, till date over 140 people, who were waiting to be executed in the US, were released at last moment as new evidence emerged just in time to prove their innocence. In India where the whole effort of the prosecuting agencies remains confined to ensure conviction of the accused and the courts generally do not admit last minute evidence, the chances of innocents being hanged cannot possibly be ruled out. 


In addition, the death penalty around the world is discriminatory and is used disproportionately against the poor, minorities and members of racial, ethnic and religious communities. A U.S. Supreme Court Justice Ruth Bader Ginsburg said, “The criminals who are well represented at trial never get the death penalty.” In India also, the award of death sentence smacks of arbitrariness and seems to be influenced by socio-economic status of the convict. 94% of the total convicts on death row in India today are either Muslims or Dalits? This is inexplicable. It is even harder to explain why not a single rich or middle class upper caste Hindu convict has been hanged so far in India for a crime committed since India became a republic in January 1948? Further, the courts have also conceded many times that collective social conscience of Society can influence the award of capital punishment. Looking at all these statistics, one shudders to think how many innocents would have become the victims of legal murders? 


Only those who are blinded by a sense of retribution and vengeance, who seek sadistic pleasure in continuation of the medieval rule “an eye for an eye” shall be able to ignore the aforementioned hard facts.

 

Finally, it may also be true that some acts of violence are so reprehensible that both victims and society find it difficult to control their emotions. But states cannot be expected to be overwhelmed by the emotions. They have to maintain rule of the law without succumbing to sadistic desire of the society to take revenge. Further, what does a victim gain when the convict is killed? He gains nothing except a false satisfaction of a feeling of revenge. The criminal Jurisprudence must be directed towards reformation of the convicts and rehabilitation of the victims. Death sentence does neither. The provision of death sentence has crossed its sell by date long ago. It represents the archaic ‘rule of jungle’. It is inhumane and barbaric and therefore counterproductive as cited and thus, done away with by so many countries. In India too, an active debate over this issue is underway. 

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