DEBATE ON DEATH PENALTY

Should capital punishment be scrapped from the statute?


The Law Commission has initiated a debate on the mode of executing prisoners sentenced to death. The commission has invited views from the public on the matter and has also circulated its consultative papers among bar councils, lawyers and human rights activists.
Several lawyers and activists want the death penalty abolished altogether. Home Minister L.K. Advani had recently favoured introduction of the death penalty for the offence of rape.
The other offence for the death sentence should be "on the ground of unprovoked murder of wardens or fellow prisoners by a convict serving life imprisonment", he said.
"The Indian Penal Code contains 51 provisions attracting the death penalty," says Supreme Court advocate Rajeev Dhawan. As Dhawan states plainly in an article entitled Executing the Poor: "It is the poor, the sick, and the ignorant who are sent to the gallows."

It makes the whole world blind

Ajit Singh Bains

DEATH is final, unrevokable and a full stop to life. Nothing within the power of man can undo this process of putting an end to life. Death penalty is a power given to a judge, a man like all of us, to grant or deny permission to a human being to be alive.
This power is something which disturbs a sensitive mind because to justify death sentence is to accept that there comes a stage in a human being where we can conclude that this man is now beyond repair, beyond learning, beyond transformation or reformation, beyond the hope of doing anything which will be of any use to any member of society. Yet, I have never come across a man condemned to death who is so forsaken that his mother, children and friends do not come to meet him and feel nothing for him.
How can we erase from our consciousness the story of Balmiki and Aungulimar, who remind us of one of the supreme lessons of human nature that it is possible to change a murderous man to a saint? This possibility is real and is always available.
The argument, often posed by judges is: what about the victims? By taking away the life of a convict, we also rob the victim of ever coming to terms with the irreparable loss of a loving being. By insisting on life for a life, like an eye for an eye, we deny within ourselves that inexhaustible source of compassion, which has the power of transformation for both the victim and the killer.
A child whose mother has been killed or deprived of his father can only be healed by more compassionate members of society. He is unlikely to be consoled that his loss of father is evenly balanced by a great judge by depriving another child of his father. Do we not see the stupidity of this passion? An eye for an eye will make the whole world blind.
Death sentence is a passion for revenge, which is primitive, a memory that reminds us of a violent past, when beyond survival we had no other heritage and no other value. When world was simple and divided between enemy or friend, member of tribe or outsider, black or white.
If death sentence is justified on the premise that some human beings are so wicked, beyond redemption and are capable of so much evil that their very existence is a danger to other members of society, still to find out the truth and to determine who are such evil incarnations is a challenge to the best of legal systems. Even advanced systems with better resources are liable to catch the wrong man whose innocence is established years later, after life is over.
How to get over the danger that innocent people will be executed because of errors in the criminal justice system? Justice William J. Brennan Jr, as far back as 1941, said: "Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent".
In our country it is worse. Just consider the report of the Death Penalty Information Centre of the US, where research is better organised. In our country, the comparable research is yet to commence.
According to the report, a total of 69 people have been released from death row since 1973 after evidence of their innocence emerged. Twenty-one condemned inmates have been released since 1993, including seven from the State of Illinois alone. Many of these cases were discovered not because of the normal appeals process, but rather as a result of new scientific techniques, investigations by journalists, and the dedicated work of expert attorneys, not available to the typical death row inmate. This report tells the stories of people like Rolando Cruz, released after 10 years on Illinois death row, though another man had confessed to the crime shortly after his conviction.
The risk that innocent people will be caught in the web of the death penalty is rising. The increased rate of discovery of innocent people on death row is a clear sign that even with the best of intentions, the criminal justice system makes critical errors - errors which cannot be remedied once an execution occurs. Courts are allowing executions to go forward even in the presence of serious doubts over the defendant's guilt. The current emphasis on faster executions, less resources for the defense, and an expansion in the number of death cases means that the execution of innocent people is inevitable.
Consider Devinder Singh Bhullar's case. He is convicted for conspiracy when there is no other conspirator. The only evidence against him is a confession in policy custody which he retracted at the first opportunity when he was presented before the judge. The confessional statement is thumb marked when he is an engineer. None of the 133 witnesses in trial recognised him. The presiding judge finds him innocent. He was never the suspect. He was arrested under the Passport Act and later a case is built on his confession. And he is sentenced to death!
The writer, a former Judge of the Punjab and Haryana High Court, is Chairman, Punjab Human Rights Organisation, Chandigarh

 

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