Time to re-think Capital Punishment: A regressive approach

The following article is written by Rashmi Bishnoi, a 3rd year law student of Jindal Global Law School.

“An eye for an eye will make the whole world blind”

..Mahatama Gandhi

At the United Nations where majority of countries said that it was time to abolish the death penalty. India along with several south Asian nations voted against the resolution and argued in favour of death penalty. Till now, death penalty is continued to be imposed in the rarest of the rare cases but I contend that it should be abolished exhaustively for it to not only be barbaric, immoral and unconstitutional but also a regressive approach in a civilized world.

Article 21 of the Constitution guarantees right to life with respect and dignity to every citizen and  Article 3 of the Universal Declaration of Human Rights(UDHR) provides that” life is a human right”, So the very existence of capital punishment is abhorrent and a bane to human rights. Fundamental rights don't stop to exist at the doors of jail. However, Article 21 gives sufficient power to the government to deprive a person’s life through a properly established procedure by law. This procedure cannot be interpreted to be fair and reasonable as there is a lot of arbitrariness and subjectivity in the whole application of the death sentence being unevenly applied. When we look back at the Rajeev Gandhi killer’s case, the Bhullar case and the Rajoana case there is so much politics and arbitrariness involved over the death penalty. Is our judiciary always uniform on this principle of rarest of rare and can it be error free when the life is on the line? The answer is in negation. The judiciary is never consistent because it depends from judge to judge as to whether he has a harsh approach or soft approach or whether is a strong believer in human rights. The principle of ‘Rarest of the rare’ case standard means that each judge can decide what they consider rare depending on their philosophy, the jurisprudence is far from consistent and on top of that many of the executed convicts being from disadvantaged marginalized background have poor legal representation. It is therefore left open to the discretion of the courts to impose the capital punishment in a whimsical manner

It is very important to realize that the fairness of the procedure can only ensure the application of Article 21. Personal liberty includes physical restraint and a host of rights that touch upon human livelihood as well. It is crucial to understand that the procedure must also satisfy the requirements of natural justice in order to support existence of a procedure meant to take away life or liberty. Thus we can say that in order to grant a death penalty, there must be a valid law which provides a procedure which is fair, just and reasonable. We need to realize that killing can never be avenged with another and capital punishment is merely revenge and retribution masked as justice. Any law which is discriminating against the poor and minorities is invalid, and the Court had believed many times that capital punishment resulted in a disproportionate application of the death penalty towards vulnerable section of the society being violative of Article 14, 19 and 21 of the Constitution.

Capital Punishment should be abolished universally, not only it being constitutionally invalid but also undesirable for several reasons. Innumerable studies demonstrates that there is absolutely no deterrent effect whatsoever from the existence of the death penalty in not committing an offence. It cannot be justified as an effective instrument of state because it is an emotional judgment. A state is being reduced to the level of the killer. You are basically saying that we will take a life because he took a life."Eye for an eye and tooth for a tooth philosophy” is unworthy of a government of India. Do we want the government to behave in the same way as a terrorist?

Lastly, death penalty is irrevocable. Hundred guilty persons may escape but not one innocent person should be convicted. It will result in injustice if an innocent person is executed to death; as the conviction to prison can be compensated but there is no compensation for death. In the end, capital punishment is inhuman and morally indefensible act. Does killing the killer will undo the crime or give closure to the victim's family? Or does it make us no better but the killer himself ?