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