The question of abolition of capital punishment has been the most debatable question and brings lots of emotion and sentiments. There are people who are in favour of abolition and there are others who try to defend capital punishment or death-penalty. As far as India is concerned, the Honourable Supreme Court of India in its 1980 judgement in Bachan Singh v. State of Punjab has given a Talisman that the death penalty should only be given in the “rarest of rare cases”. But judging the case as rarest of rare is in itself subjective and the Indian courts have had varied interpretations in various cases. There is ambiguity in the judgement from the beginning. Hence, this defence in favour of death penalty is really very poor.
Secondly, India is a party of International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment. However, much remains to be done as India has not yet ratified the Second Optional Protocol to the Convention and in Nov 2010, it even voted along with Saudi Arab and China in opposition to the UN resolution for a moratorium on the death penalty.
In this context, Report of Law Commission India setup in 1967, said that
Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.
So, the general intellectual thought in this regard is against the abolition as they consider it a risk to the National Security.
However, we should also not forget that 139 countries world-wide have taken this risk and abolished capital punishment altogether.
Another reason for continuation of death penalty is the concept known as “public opinion”. However, irrational it may sound but it is the fact that cannot be ignored. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated:
Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.
But as Arthur Chaskalson, former Chief Justice of Supreme Court of S.Africa reiterated,
If public opinion were to be decisive there would be no need for constitutional adjudication.
Now, coming to my opinion on abolition of Capital Punishment from India is concerned, I am in favour of abolition. Not because we have any legacy of non-violence, but just because we have moved much ahead of the period of renaissance and enlightenment, and we must show that not only time has passed but the ancient and medieval approach to deal with punishments has also been left behind. As Pamela Philipose has said in her essay titled Is this real justice?,
The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing.
Capital punishment should be really the fearsome thing. It is like tit-for-tat, an eye-for-an-eye and as Gandhiji said it will make the whole world blind.
P.S.:- I was having discussion elsewhere and I put forward to one of the replies:-
You will be shocked to know that as per the report of Amnesty International that more than two-thirds of the countries in the world have now abolished the death penalty in law or practice. The numbers are as follows:
Abolitionist for all crimes: 97
Abolitionist for ordinary crimes only: 8
Abolitionist in practice: 35
Total abolitionist in law or practice: 140
So, updating my stat, 140 countries have abolished the death penalty and this number is not declining. It is increasing year after year since 1976, when Portugal abolished the death penalty for all crimes.
It is true that India had not abolished capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not that this idea was not given any thought. If you must know, I would like to quote during Constituent Assembly debates, a member of Constituent Assembly while opposing an amendment demanding partial ban on capital punishment, said,
I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…
So, at that point we had thought that with the passage of time, we will be making changes to the nature of punishment. Why we still continue with same punishment which we do abhor? We hate the British Raj for hanging Bhagat Singh, Sukhdev and Rajguru and we hate the Raj for the hanging of Surya Sen and many such martyrs. Most of you will agree that they should not have been hanged. But if that is the case, then why we still continue with capital punishment?
P.P.S.:- This is in reply to the following:-
No I don’t agree with this. Supreme Court has already told that capital punishment should be given in the cases involving when a person encourage a child or mentally ill person to commit suicide , or when a army person wage war against own country , or when a person is found guilty of terrorist activities.
As you can see the offenses under consideration are very serious and deserve nothing but capital punishment..
It is very easy to say that capital punishment is inhumane but ask from the families of 166 people who were killed by Kasab and each and every of them will say yes to his hanging.
Who can forget kandhar hijack had we killed maulana Masood Azharpreviously it would never had occurred because hijackers demanded the release of him and when he was set free he stung us again and again in the form of Indian parliament attack and numerous killings in Kashmir.So it becomes very important that what we want : death of hundred of Innocent people or death of one person who is responsible for killing so many innocent people ??
Moreover Supreme Court has already stated that capital punishment will be given only in rarest of rare cases so if we have trust in out judiciary then we should give them the power to decide what offenses deserve capital punishment for the betterment of this society..
It is true that Gandhiji said that an eye for an eye will make the whole world blind but sometimes when a single person is taking out eyes of many innocent people it is advisable to take his eyes so that he may not turn the whole world blind !
Why are you considering capital punishment as co-terminus with the scale of justice? When we talk about our Heroes like Bhagat Singh, Surya Sen, etc. we call that hanging was the wrong thing to do, but in the view of “Imperialist” Raj, they were terrorist and murderers. Why cannot we have the same scale? Why cannot we hold ourselves to higher standards of justice than those followed by our Imperial masters? Why cannot we move towards the idea of restorative justice rather than retributive justice?
P.P.P.S:- To the above post, I got the following reply:-
do u think the consciousness has really grown?? the society has really developed??. The consciousness has to grow among the people. I never said that the countries which have not abolished death sentence have not given a thought about it. I never said that the nature of punishment need not change. I was indeed saying that death penalty should not be abolished in certain cases where the crimes tend to be very brutal. Adding to the fact that we condemn the British for hanging Bhagat singh, Raj guru etc.. will u really oppose if India decides to hang Ajmal Kasab today?? or will awarding a life imprisonment to Kasab really help in reducing the terrorism?
And also, while many countries are abolishing death sentence, India, the birth place of Mahatma Gandhi, has not yet abolished it. Is it because we don’t know the meaning of humanity??
I would like to say what Justice A K Ganguly, Honourable member of Supreme Court of India said. He termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system. He further said that the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The vague premise in question is doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty.
The issue is not whether we know the meaning of humanity or not. The issue is whether we practice humanity or not.
For the case of Kasab, I would like to quote what Bhagat Singh said in his last petition to the Governor of Punjab,
As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.
The doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty is a “grey” area as its interpretation depended on individual judges. It is just another version of Might is right!
I was going through a post of my friend Shailendra. And I tried to put few suggestions. While commenting there, I realized that I wrote enough that it can be transformed into a post. So here are my suggestions:-
1. Judiciary takes lot of holidays. For eg Jabalpur High Court will take 88 holidays in 2011. 52 Sundays, 12 Saturdays, summer holidays from May 23 to June 17, winter holidays from 26 December to 31 December and other festival holidays. Sometimes I think is our Judiciary running a school? When there are so many pending cases, I do not find any justification for so many holidays. These should be curtailed. If you want to know holidays that Supreme Court of India takes click here.
2. Many a times it has been observed that judges are not punctual and sometimes lawyers come late. This should be strictly handled and stringent action should be taken against the erring judges and/or lawyers. This will help in ensuring that court’s time is utilized well.
3. The time required to complete a particular kind of case should be pre-defined and it should only be extended on reasonable reasons. Judges must ensure that trial follows the time limits. Also, there should be time limit for a particular hearing of a case, say 1 hour in each hearing.
4. There are many cases which have a similar point or are of similar nature. They should be clubbed and a single judgement can be used for them. Similar recommendations as far as I remember was made by some Law Commission also.
5. Old cases like the one you mentioned should be separated from the rest of the cases and should get prioritized handling or could be assigned to special tribunal to decide the matter without any in-court hearing unless absolutely necessary.
6. Since judiciary doesn’t have much time arguments in courts should not be prolonged and until and unless absolutely necessary oral argument should not happen. In place of that written legal notes and arguments can be submitted to the court. The judge should be empowered to decide which cases are of absolute importance and should then allow the oral arguments. Cases like interpretation of Constitution can be regarded in this category.
7. Laws should written in very clear and specific manner. “Notwithstanding anything detailed herein and blah blah…” only adds to confusion and creates loop-holes. The existing laws should be written so that a lay man could interpret it. It will reduce the number of cases that reach the court and get involved in the cycle of interpretations and counter-interpretations.
8. Most of the cases filed under civil code can be transferred to tribunals and should reach courts in case of question of interpretation or as appeals.
9. Similarly, judgements should also be clear and should not leave any questions of interpretations.
10. Bars should be severely warned against going on strikes during the working hours and days of the courts.
11. Latest technology can be of great help for the courts. Use of video conferencing, etc can help the time of court while waiting for government officials, MPs, MLAs, ministers and others to come and give witness which most of the time leads to adjournments. This way even if they are ill they can take time out to be present for an hour for the hearing as I above mentioned time of a hearing should also be reduced to say 1 hour in my point 3 above.
12. Information Technology can be used to prepare a database to store cases, judgements, etc and can be used for immediate help in cases which look similar to a previous case which was solved. A good reporting tool can immensely help in this. IT if used intelligently can create wonders for the improving the productivity and efficiency of the cases.
In June this year (2011), 7th Regional Consultation on Electoral Reforms was held in Guwahati. A number of measures have been proposed by various committees on different issues. I am just copying them from its press release for ready reference. These measures, including the ones proposed by previous Committees, on the issue of Electoral Reforms are:
The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”. There are several issues in relation to the working of this law which need to be discussed. Does the law, while deterring defections, also lead to suppression of healthy intra-party debate and dissent? Does it restrict representatives from voicing the concerns of their voters in opposition to the official party position? Should the decision on defections be judged by the Speaker who is usually a member of the ruling party or coalition, or should it be decided by an external neutral body such as the Election Commission? Some of the recommendations are listed below:-
Mr Kejriwal says, “Anna Hazare is above Parliament and that he has the right to do so as a citizen … Every citizen is above Parliament.” If this is the understanding of a person who was once part of Indian Revenue Services then no doubt he was not even suited for any of the services. He must first need to clear his concepts on Polity and then give arguments. His arguments are unnecessarily provocative. It is not that individual citizens are above Parliament. The Parliament represents the collective will of the people elected through a democratic process. He must remember the dictum, “However high one may be, the law is above.” Parliament is the reflection and the representation of the voice of the majority. Parliament is the collective voice ofIndiaand has the authority to run the country.
Though Mr. Hazare started out with his movement to fight corruption, he seems to be very selective now in choosing his targets. If the Jan Lokpal Bill is not passed by Parliament in Winter Session that will start in November, then Team Anna has every right to create public opinion in favour of the Bill and fight the government in elections. Some personalities accused of corruption are behind bars and the system is working slowly. The kind of frequent threats being held out by Mr. Hazare and civil society will cause damage to parliamentary democracy and result only in chaos.
There are few questions that I want to ask Mr. Kejriwal and Team Anna. Can a democracy allow a group of individuals to define ‘change,’ however well intended it may be, without the legitimate authority of the people? Have they lost faith in democracy and think that only one individual can set matters right in the country?
If they have lost faith in Parliamentary democracy and the Constitution, then why do they want Parliament to pass a law? Go ahead and violently turn the Constitution down and act as per their whims.
It is a fact that Team Anna has mobilised people to fight against corruption. No doubt, the UPA has fuelled corruption, but it cannot be taken to be the sole agent of corruption. Every Indian needs a corruption-free nation. However, graft is omnipresent. It is not individual specific or party specific. Team Anna should not be biased for or against any party. The Gandhian movement was against the British as they had colonised India. But a similar struggle cannot be equal to a movement against one party. Can it be? The movement must have a cause to uproot a social evil and not the party in power when it is in majority. At least have some respect for the Constitution!! It is not that Constitution has failed us, it is we who have failed the Constitution.
- Why can’t Team Anna wait until the Winter Session? (ktrmurali.wordpress.com)
- Ends don’t justify the Means! (amalwin.wordpress.com)
- Parties back Anna’s right to dissent, but reject his main demand – The Hindu (news.google.com)
- ‘Government has not conceded anything’ (indialawyers.wordpress.com)