Death Penalty: A review from Human Rights perspective

B.Nandhini

Introduction:

At present there is a world wide abolition of death penalty by many of the sovereign states for all offences with in their jurisdiction .However few countries are not an exception and there is no consensus regarding its use among international community. The abolitionist countries claim that taking away or depriving of a person’s life as a human rights violation whereas the capital punishment retentionist countries justify their claim by picking up some of the barriers like general deterrence, public opinion and as a matter of Nations sovereignty not a human rights issue.

Human rights and Death penalty:

At the present century, death penalty is viewed as human rights violation because

  1. Sanctity of human life had achieved universality.
  2. No person  is lesser to other merely  he is an offender.
  3. Death sentence is a premeditated murder by way of punishment which can also be sorted out by other means .
  4. All life is sacred and special to God.[i]

However all the aforementioned points losses its credibility in countries which still retain death penalty and execute the offenders in a large number.

From human rights view, the capital punishment is an inhumane and the heinous of all crimes because the state choose who deserves to die and justify the act in the name of lawful killing to render justice. Being in a developed and in the most advanced technological world is it right to keep the same  ancient penal rules that is the “tooth for a tooth and an eye for an eye?”. And also if the death penalty is considered as the only way through which  good the loss can be made to the suppressed is totally absurd.

The way for this trend towards world wide abolition can be traced to the late 20th century but the seeds were sown in the early 20th century through many international declarations and international covenants. Human rights supporters claim that the death penalty is wrong of the following reasons. [ii]

  1. It is totally inhumane.
  2. Death penalty creates a bad example of Justice.
  3. Capital punishment is neither a reparation nor justice but merely the psychological balance of mind.
  4. Unlawful killing (capital punishment) itself do not detract the crime from the society. [iii]

Death penalty is totally inhumane :

“Theconvention against torture and other cruel, inhumane or degrading treatment or punishment “1984  came into force on 26th June,1987 when it was ratified by 20 states. India signed this convention on October 14,1997 but not yet ratified. In this  convention degrading treatment and degrading punishment is considered inhumane, cruel and against humanity. Being a prisoner particularly convict of death sentence  creates mental agony and pressure to a person and when it is supplemented by  persecution in the prison which turns into an aggravating factor of mental illness and it is the extreme of inhumane cruel act and again subjecting  him to mock executions and finally the actual executions is the worst of the worst cases. The convict of captain punishment do not die at the time execution but he dies every single minute awaiting his death , facing mental illness and also not only person convicted under capital punishment undergoes this but his family also faces this mental agony who were declared helpless by the authorities.

“Living the life counting his days on earth is the most painful thing which no living creature never and ever on earth should face “.

Bad example of Justice and mere a psychological balance:

Rendering a person an end to his lifetime does not make the suppressed regain what he or she have lost. Once lost is lost and it can never be regained. This does not mean that the suppressor should be left free but then he should be awarded with penalty but his death will only make victim equated with what he or she had lost is totally unacceptable. And in the Justice system it becomes a bad example. Justice should not be achieved by whatsoever means but then it should be achieved by equating both the parties so that it will be the Complete Justice. This does not mean  that the accused should  be given a lesser punishment. The life of any person cannot be equated with anything and there is no such thing exists in the world as of now. So morally speaking how can a person’s life by reason  of committing an offence be equated to the crime he had committed ? Was it really a rational thing to do so ? . Though the loss and destruction and the injury incurred by the victim is unbearable it can be psychologically balanced, though not actually balanced, through reparations or compensation but then it is not a complete remedy to the suppressed but can be balanced not entirely but proportionately. Here the question arises what is the purpose of law over here? Why can’t it dispense Justice to both the parties? Can’t the law with the body of rules render proper balance offence and the crime?. A law without justice is like a wound without cure.” Though there is plethora of norms why can’t it render effective remedy at this juncture?.

Capital punishment do not deter the crime:

  Ordinarily, the aim of awarding punishment is to achieve the  twin goals.

  1. To prevent the person who has committed the crime from repeating it.
  2. To prevent others from committing crimes.

But at present the above said lines losses its credibility because of the increasing number of crimes. The punishment of death penalty is not an exception for this and so it  cannot be used to justify the use of death penalty. The studies also reveal that  in the countries which retains death penalty the number of crimes is huge compared to the countries which abolished death penalty the numbers are at the low level. The other factors also plays a role in abolition of crime rates. No study revealed that the capital punishment alone is  deterrent for the crimes. The death penalty is not only inhumane but also discriminatory and also arbitrary in nature and it does not also prevent the crimes then why should it exist?. It is facing world wide abolition so  it is time for all nations including India to give a conclusion.

Safeguards of International instruments on Death penalty:

  1. UDHR:

[iv]The Universal Declaration of Human Rights (UDHR) 1948 is at the heart of global attempts to abolish death penalty. Article 3 of UDHR enshrines   “Right to life”. Right to life is the basic of all rights and almost 77 percent of the world communities included it in their Constitutions. For enjoyment of all other rights like protection against torture(art.5) ,freedom from slavery (art.4), recognition as a person before law 9(art.6) a person should be alive and all other rights and freedoms flow from right to life under art.3 of UUDHR. Right to life is not just living alive but also includes various issues like right to get clean air , environment , health care , right to live with dignity and respect , right to privacy , free speech, right to form a family, hold nationality etc.,. The right to life under Article 3 of UDHR also covers many other issues including modern technologies like use of drones in armed conflicts and looking to the future it covers environmental degradation climate change, sustainable development which is a serious threat to the present and future generations.

Threats to life is caused not only by the state but also by the persons in society,  by their partners , by their parents, siblings, armed groups etc.,. The ambit of  Article 3 of UDHR is very in nature and there will not be any precise definition to it.  Rashida Manjoo, former UN Special Rapporteur on Violence against Women put it “ Women subjected to continuous violence is always on a death row, always in fear of execution wider”.[v]

  • International covenants on Human Rights:[vi]

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) are the two international covenants which contains the attributes of right to life contained in art.3 of UDHR. UDHR is not made with an intention to be binding , it could not achieve its goals. So to make it binding and to achieve what the UDHR intended, two international covenants which has wide scope compared to UDHR is made. ICCPR s moreover an extension of UDHR. The ICCPR and ICESCR was adopted in 1966.

The right to life is enshrined in Article 6 and Protection against torture and other cruel or inhumane or degrading treatment or punishment is envisaged in Article 7 of ICCPR. No where in ICCPR death penalty is prohibited. ICCPR in Article 6  provides that” every person have an inherent right to life and it cannot be taken arbitrarily and this right is protected under law.” ICCPR provides that the states should limit their use of death penalty and the right under Article 6 cannot be deprived except for “the most serious crimes”.

Second Optional Protocol to the ICCPR aiming at the abolition of death penalty ,1989: Recalling Article 3 of UDHR and Article 6 of ICCPR the second Optional protocol to ICCPR suggest that the abolition is desirable and says that abolition of death penalty should be considered as a progress in the enjoyment of right to life under art.3 of UDHR and Article 6 of ICCPR. Under which Article 1 is that No one with in the jurisdiction of the state party should be executed and each state party shall take effective measures in abolishing death penalty within its jurisdiction.

  • Human Rights in European land:

The European nations is the de facto death penalty free zone since  1997. This was due to the untiring efforts of the Council of Europe . [vii]De jure abolition of death penalty was main objective of the European Union. The European Convention on Human Rights (ECHR) when it was adopted there is a possibility of death penalty but slowly consensus emerged that the death penalty seems to be of no value in the civilized world and in the respect for human rights.

As a result, by Protocol No.6 to the ECHR , under Article 2 provides for the death penalty at times of war or of imminent danger. Later, by Protocol No.13 to ECHR in 2002, the Council of Europe abolished death penalty for all the crimes even during war or during imminent danger death penalty should not be imposed. Furthermore, reservations and derogations from this Protocol is also not possible for the states within the Union. This Protocol came into effect on July 1,2003 and it was ratified by 44 member states and he last ratification was by Poland in 2014 and one country have signed it (Armenia).The abolition process and procedures is irreversible in the European Union which is also a reason for its effectiveness. [viii]

This principle was also adopted in the Human Rights and also in the Extradition process. In Soering vs United kingdom, ECHR 1989 the UK while making extradition of an American national got assurances that the

  • alleged convict will not be subjected to death penalty in accordance with Article 2 of ECHR( Protection of right to life)
  • and also the alleged convict will not be subjected to torture inhumane, cruel or degrading treatment or punishment which is in accordance with Article 3 of ECHR (Protection against torture and other inhumane or cruel or degrading treatment or punishment).

The Council of Europe had also adopted Resolutions 1349 to 2003 and also the Parliamentary Assembly of the Council of Europe adopted Recommendation 1760  in 2006 to the member states and also the observer states to institute moratorium on the executions of death penalty. In 2007, the Committee of Ministers established the European Day and from 2008 it was celebrated every year on 10th October which coincides with the World day against the death penalty.

And because of these prominence in the European nations against the death penalty many offenders including social , economic, political, military offenders fled to European countries. And the countries requesting for extradition are also facing huge problems because of  many requestics like presence of a treaty, Dual criminality, rule of speciality etc.,.  Thus the European nations becomes the safe heaven for criminals.

Death Penalty in India:

The Indian Constitution provides for the protection of life and personal liberty under Article 21 of the Constitution. The constitutional validity of the Capital punishment in India have been questioned several times in Indian judiciary because there are many internal laws which impose death penalty to many  crimes. The Indian Penal Code 1860 which imposes death penalty for offences under [ix]

  1. Section 120B (criminal conspiracy)
  2. Section 302 (murder)
  3. Section 121(waging war or attempting to wage war against Government of India)
  4. Section 132(abetment of mutiny)
  5. Section 396(dacoity with murder) and

 others legislations like NDPS Act, anti terrorism laws etc.,.

[x]The Constitution of India also provides for the pardon of death sentences of President under Article 72 and Governor of a state under Article 161. Person can appeal to the High Court if he not satisfied with the decision of the lower court. And then to the Supreme Court against the decision of the High Court. Thereafter if he is not yet satisfied with apex court’s order he can approach the President and Governor under articles of the Constitution. This clearly shows that the capital punishment is awarded after all the remedies are sought out . In India life imprisonment is the rule while death penalty is an exception( only in rarest of rare cases).

Conclusion:

From the above discussions and points it is clear that the death penalty concept in India is not much clear and it is muddled up[xi]. Though this era  is towards the world wide abolition of death penalty majority of the people favor imposition of death penalty. People’s belief flies in the case of scientific evidence and they do not have an scientific understanding of deterrent effect of death penalty. So the battle towards abolition of capital punishment must be made although the journey is painful and extreme, it must be fought over and over. And once it is abolished there is no such public outcry and it stays abolished. “Once a person convicted is found innocent he can be released from the prison but execution cannot be reversed.” This should be applied wherever law is applied.


[i] BHAGHAVAD GITA 9.29

[ii] HUMAN RIGHTS CAREERS, www.humanrightscareers.com ,(last visited Nov 10,2020).

[iii] IBID

[iv] AMNESTY INTERNATIONAL , www.amnesty.org, (last visited Nov 10,2020).

[v] UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, www.ohchr.org, (last visited Nov 11,2020).

[vi] IBID

[vii] COUNCIL OF EUROPE(CONSEIL DEL’ EUROPE), www.osce.org (last visited Nov 11,2020).

[viii] IBID

[ix] ACADEMIKE, www.lawctopus.com, (last visited Nov 11,2020).

[x] IBID

[xi] AMNESTY INTERNATIONAL, www.amnesty.org, (last visited Nov 10,2020).

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