President Kalam has brought the death penalty issue into the spotlight again by referring a list of 20 death row convicts back to the Home Ministry to reconsider their mercy petitions. Kalam has asked for an omnibus review of pending mercy plea cases, and his enthusiasm indicates a wish for the practice to be abolished. Article 72 of the Constitution theoretically grants the President the power to pardon, but in practice, he is obliged to follow the recommendations of the council of ministers. He has also pointed to the discrimination factor in the awarding of death penalties in India. At a function at Hyderabad’s National Police Academy, he wondered why only the poorest of poor were convicted for heinous crimes. This is a pertinent point because the outcome of any trial is dependent on the quality of legal advice that the convict receives, and here the rich have a definite edge over the poor. Also, the rich may influence trials involving them extraneously.
The death penalty has been a bone of contention in the Indian judicial system for quite some time now, with opinion divided equally. Contemporary juristic thinking though is veering against it. CJI-designate Justice Y.K. Sabharwal is personally in favour of abolishing it. Despite the SC proclamation of awarding the capital punishment in the “rarest of rare” cases, the prospect of even a minor error in jurisdiction is terrifying. Here is an excerpt from an article written by former solicitor general of India Mr. Andhyarujina, illustrating this very facet:
This was dramatically demonstrated in a case in the Supreme Court itself in 1981. Jeeta Singh, Kashmira Singh and Harbans Singh had all played an equal part in the ghastly murder of a family. Because separate petitions were made to the Supreme Court by each of the convicts, one bench of judges of the Supreme Court rejected the first petition of Jeeta Singh who was later executed. Kashmira Singh’s petition was heard by a different bench of judges which commuted his sentence to life imprisonment. On the eve of his execution, Harbans Singh’s petition came before yet another bench of Supreme Court judges, who when coming to know of Kashmira Singh’s case, directed that the case should be sent back to the president for reconsideration of his clemency petition. As Justice Bhagwati has said “This is a classic case which illustrates the judicial vagaries in the imposition of death penalty.”
It may be argued that some crimes are particularly heinous and no amount of sympathy must be shown to their perpetrators. These may include gruesome killings or terrorist acts. But this raises the question: what is the purpose of any justice system? Does the State have the right to deprive another person of life as a means to mete out justice? How can the State administer a system that discards the possibility of reformation of a person mired by criminality? Human nature is not incapable of transformation. A case currently hogging media attention in the U.S. relates to one Stanley “Tookie” Williams (in the pic). A former street gangster and convicted killer, he is due to be executed this Dec 13. He was convicted in 1981 for the murders of 4 people and has been incarcerated in a small cell on the death row of San Francisco’s San Quentin prison since then. But since receiving his death sentence, Williams has renounced his gang past and authored children’s books. He has also been nominated for the Nobel Peace Prize. Today he is a changed man whose anti-violence proclamations have won him wide public acclaim. Yet his chances of survival are slim. His clemency petition is likely to be shot down by Governor Arnold Schwarzenegger, who since becoming governor has rejected two clemency requests from death row inmates. Latest reports claim that the governor has agreed to hold a private meeting with Tookie's lawyers to consider his plea for clemecy.
Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. A survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, failed to provide any proof that death penalty acted as a greater deterrent against crime compared to the supposedly lesser punishment of life imprisonment. Around 124 countries have abolished the death penalty in law or practice. The membership of the EU is incumbent upon having no death penalty. Some countries are wary of signing extradition treaties with India for this very reason. This was brought into focus by the arrest of gangster Abu Salem in Portugal a few years ago, when India wanted him here for trial.
Thus, capital punishment as a means to award justice is not just futile but also barbaric, and serves no purpose save giving the State a brutal, bloody name.
Also read At life's noose.