Death be not proud

Need for the State to abolish death penalty in India

President A P J Abdul Kalam is perturbed as to why prisoners sentenced to death are the poorest of the poor. Expressing a valid concern, he has urged the Home Ministry to review 20 such cases. There are 45 condemned prisoners whose mercy petitions are pending, 12 since the time of Kalam’s predecessor, K R Narayanan.

Unfortunately, the outcome of any trial depends to a fairly large extent on the quality of legal advice that the accused receives. This loads the scales in favour of the rich who find it easier to avoid the death penalty than the poor.

The issue of whether the President is bound by the advice of the Home Ministry was clarified by the Supreme Court in Shamsher Singh’s case. The Apex Court held that the President exercises his power only upon and in accordance with the advice of his Ministers, save exceptional matters, which does not include the power to pardon.

At the same time, the Court said that “the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect… carried on by the Prime Minister and his colleagues”.

It is constitutionally proper for the President to ask the Home Ministry to review the cases. One would expect the Government to take his views seriously. There are good reasons for the Government to accept the President’s view on commutation of death penalty.

The courts recognise that if a majority of judges in a particular situation is for a death penalty and the minority for commutation, judicial propriety demands that the minority view be accepted by the majority. Extending this principle, if the President expresses doubt on death sentence in some cases, that should be compelling reason for the Government to commute the sentences.

The Government should reflect on the thoughts expressed by former President of Chile Eduardo Frei: “I cannot believe that to defend life and punish the person that kills, the state should in its turn kill. The death penalty is inhuman as the crime which motivates it”.

It is wrong to believe that abolition of death penalty can lead to increase in killings. In 1945-50, the state of Travancore, which had abolished death penalty, saw 962 murders whereas during 1950-55, when death sentence was reimposed, there were 967 murders.

Death penalty was abolished in 1965 in the UK. The membership of the European Union is dependent on having no death penalty.

A survey conducted by the United Nations in 1988 failed to provide any evidence that executions have a greater deterrent effect than life imprisonment.

In Canada, the homicide rate declined after the abolition of death penalty in 1976. In 2000, there were 542 homicides in Canada, 16 less than in 1998 and 159 less than in 1975 (a year prior to the abolition of capital punishment).

A survey released in September 2000 by The New York Times found that during the last 20 years, the homicide rate in the states with death penalty was 48-101 per cent higher than in the states without death penalty. The South African Constitutional Court unanimously ruled in 1995 that the death penalty for murder violated the country’s constitution.

More than 118 countries have abolished death penalty either in law or practice. The danger of irreversibility and innocents being executed are not misplaced concerns.

As many as 500 people have been executed in the US since the Supreme Court reinstated the death penalty in 1976.

Over that same period, 75 condemned inmates have been released after evidence showed that they had been wrongfully convicted.

The heads of two wings of the State, the executive and the judiciary, have expressed themselves against the death penalty.

Chief Justice of India-designate Y K Sabharwal said that though as a judge he would carry out the mandate of the statute which contains death penalty, as a citizen he was of the opinion that it should be abolished. Now, the Legislature should let the people know its views.

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