(This article was originally published in a law magazine ‘The Bona fide’ brought out by Govt: Law
College, Thrissur)
legal
knifing of life
There
is cache in every human being, a cataloging of cosmic coruscation in one and
all which makes us believe that there is more to life than living, judging and
justicing. Life is so prized and precious that no one has the right to take out
ones life, be it a judge, jury or a janitor. Death penalty is the ultimate
fiendish, savage and shameful sentence given to humans deemed as criminals by
the state. This draconian death punishment violates ones right to life and is
irrevocable making even more terrific and tragic if it inflicts on the
immaculate and innocent.
History
starry-eyed mirror the march of civilization from terrorism to humanism and the
topography of death penalty delineate retreat from country after country. But
our homeland which proffered Gautham Buddha who preached universal compassion
to the world; Gandhi, the marvel of all times who fought for ahimsa and in a
country where ‘political parties’ and persons alike advocate that not even a
termite should be subject to torture, death penalty has not been terminated. We
conceit ourselves claiming that we were the first people in the planet to lead
a civilized life but we have not given up the barbaric practice of hanging
convicted murders, until they are dead. A murder is a murder by whatever name
you call it. We are still living like brutish barbarians and have not developed
humanitarian character. From this it is obvious that our pretensions of justice
are just a colossal hypocrisy and our shibboleth of sympathy is just a phony
and facade compelling me to write that ‘we Indians are a throng of cheap
boasters’.
The
cult of abolitionist nations of death penalty is amplifying. The Amnesty
International opposes the death penalty as a violation of human rights, holding
that it violates the right to life and is the ultimate cruel, callous and
corrupting punishment. U.N. Commission of Human Rights expressed its conviction
in way back in 1997 “that abolition of the death penalty contributes to the
enhancement of human dignity and to the progressive development of human
rights”. There are international abolitionist treaties which include the
European Convention on Human Rights adopted by the council of Europe in 1982;
the second Optional Protocol to the International Covenant on Civil and
Political Rights adopted by the U.N. General Assembly in 1989; and the Protocol
to the American Convention on Human Rights to Abolish Death Penalty, adopted by
General Assembly of the Organization of the American States in 1990 which all
aim at the abolition of the death penalty. The European Union which has
abolished the death penalty has urged India to refrain from carrying out
more executions. The strongest reason for the abolition of the death penalty is
the fault of arbitrariness in sentencing judges. The decisions are
discriminatory, subjective and arbitrary at all times. Our apex court has
stated that it ought to be imposed in the “rarest of rare cases” which is a
euphemism for judicial gamble. It postulates resistance to taking a life but
persons like Nathuram Godse, Dhananjoy Chaterjee and Dara Singh will still hang
in the hangman’s rope in future due to the sanction and sentence through the
laws instrumentality. How can law through its instrumentality take a persons
life? Law by itself is no answer to justice as the sublime instances of
Socrates, Jesus and martyrs galore in the long history prove how justice failed
and blind law triumphed.
The
cultural pedigree of India,
with Valmiki, the finest bard with a burglar past- and such examples of
renovation from criminality to nobility are legion here and elsewhere. No one
is a born criminal, the offender being often the victim of irrepressible
stresses. The doer may be a jingoist, a revolutionary, a scrawny victim of a
strong passion who, given enhanced milieu, may be a good denizen, a good
administrator, a good spouse or even a great saint. He could be a transcendent
spiritual star like shri Aurobindo, tried once for murder but by history’s
kismet exonerated. The personal saga of an actor in a shocking murder, if
considered, may bring laceration. He might have been tormented youngster, a battered
orphan, a jobless starveling, a badgered brother, a wounded son, a catastrophic
person hardened by community cruelty or rancorous justice, even a Hamlet or
Parasurama. He might have been an angelic lad but thrown into Mafia Company or
inducted into dopes and drugs by parental neglect or morally-mentally retarded
or disordered. We must always have the brooding thought that there is a
divinity in every man and that all can redeem from their sins if given chance
catalyzed by the Jesus, Gautham and Gandhi compassionate philosophy. ‘Every
saint has a past and every sinner a future’ strikes a note of reformative
potential even in the most ghastly crime. This axiom is a vote against death
and hope in life. In succinct, knifing the life legally is knifing the life
immorally.
Why
‘nay’ to death penalty
Everything
has reasons; the crying cadence of ‘no’ to the evil eyed death penalty has too
considerable and credible reasons. The succeeding paragraphs testify why there
must be a shouting protest against capital punishment and why we need to death
sentence on death sentence.
The
purpose of punishment is to douse criminal penchant, not the person who commits
the crime. The jurisprudence and philosophy of penology says that soul of
sentencing strategy in any civilized criminal justice system is to recuperate
the soul of the sentencee and make him a useful member of society by the
traditional trinity of theories namely retributive, deterrent and
rehabilitative and sometimes a blended brew of all the three. If the capital
punishment is abolished, they argue, people will not be safe and the graph of
the murder will soar high but this is not a sound argument. At one time the
pick pockets were also hanged in England and when the death sentence
for pick pocketing was sought to be abolished same argument was advanced that
no pocket will be safe. It is also pointed out that when a pickpocket was being
hanged and the people had gathered to witnesses his execution, some pockets
were being picked. Myriad men and women have been executed for the purpose of
preventing crime, especially the crime of murder. Yet, study after study in
diverse countries by sociologist and criminologist has failed to find
convincing scientific evidence that the death penalty has any unique capacity
to deter others from committing particular crimes.
J Bhagwati said :- " I am of the opinion that Sec. 302 of the
I.P.C. in so for as it provides for imposition of death penalty as an
alternative to life sentence is ultra vires and void as being violative of Art.
14 and 21 of the constitution since it does not provide any legislative
guidelines as to when life should be permitted to be extinguished by imposition
of death sentence". Behind and beyond the callousness of the degrading
death punishment, it’s the overt and covert cruelty of torture which is more
sad and somber. Like torture, an execution is an
extreme physical and mental assault on a person already rendered helpless by
government authorities. The cruelty of the death penalty is manifest not only
in the execution but in the time spent under sentence of death, during which
the prisoner is constantly contemplating his or her own death at the hands of
the state. This cruelty cannot be vindicated, no matter how cruel the crime of
which the prisoner has been convicted. If it is impermissible to cause grievous
physical and mental harm to a prisoner by subjecting him or her to electric
shocks and mock executions, how can it be permissible for public officials to
attack not only the body or the mind, but the prisoner's very life? The cruelty
of the death penalty extends beyond the prisoner to the prisoner's family, to
the prison guards and to the officials who have to carry out an execution.
Information from various parts of the world shows that the role of an executioner
can be deeply disturbing, even traumatic. Judges, prosecutors and other
officials may also experience difficult moral dilemmas if the roles they are
required to play in administering the death penalty conflict with their own
ethical views.
This is what
the authors of the Indian Penal Code had to say about death as a punishment: “We are convinced
that it ought to be very sparingly inflicted, and we propose to employ it only
in cases where either murder or the highest offence against the state has been
committed.” Cr.P.C. states that death sentence is the exception while life
imprisonment is the rule. Therefore, by virtue of Sec 354(3) of Cr.P.C. it can
be said that death sentence be inflicted in special cases only. The apex court
modified this terminology in Bachan
Singh’s Case and observed- “A real
and abiding concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. That ought to be done save in the
rarest of rare cases when the alternative option is unquestionably foreclosed.”
To decide whether a case falls under the category of rarest of rare case or not
was completely left upon the courts discretion. However the manner of
exercising the discretion has undergone various changes with the changing time
and evolution of new principles through various cases. In the case of Mohemed Chaman, on the question of
extent of judicial discretion, the court observed: “Such
standardization is well nigh impossible. Firstly degree of culpability cannot
be measured in any case. Secondly criminal cases cannot be categorized, there
being infinite, unpredictable and unforeseeable variations. Thirdly in such
categorization, the sentencing procedure will cease to be judicial. And
fourthly, such standardization or sentencing discretion is policy matter
belonging to the legislature beyond the courts functions”. Despite the fact
that full discretion is given to judges, in ultimate analysis, it can safely be
said that such wide discretion has resulted into enormously varying judgments,
which does not portray a good picture of the justice delivery system
Historically
speaking, capital sentence perhaps has a class bias and colour bar, even as
criminal law barks at both but bites the proletariat to defend the
proprietariat, a reason which, incidentally, explains why corporate criminals
including top executives who, by subtle processes, account for slow or sudden
killing of large numbers by adulteration, smuggling, cornering, pollution and
other invisible operations, are not on the wanted list and their offending
operations which directly derive profit from mafia and white-collar crimes are
not visited with death penalty, while relatively lesser delinquencies have, in
statutory and forensic rhetoric, deserved the extreme penalty. In today’s India, penal
law is just in the paper parchment with sunlit semantic and experience shows
that death sentence is given to the accused from society’s deprived and destitute
segment. It seems the death sentence is the privilege of the poor. One does not
come across any case of the death penalty being inflicted on those who are
better off and who can afford to engage skilled lawyers. Often the accused is
defended by a novice who holds a legal aid brief. What Justice Douglas said in the US has application with even
greater force in India.
He said, “It is the poor, the sick, the
ignorant, the powerless and hated who are executed.”
Besides the
inherent arbitrariness of the death penalty, Indian conditions for
investigation of crimes and trial court procedures in homicide cases do not
inspire confidence. Methods of investigation remain crude, archaic and
unscientific. Conviction is largely based on oral evidence of witnesses.
Witnesses are often motivated by caste, communal and factional factors. It is not
uncommon for the police to fabricate a case for caste or communal reasons or
for the enemies of the accused to fabricate a case against him. Prosecutors are
not trained to shun irrelevant considerations. Such factors may create an
apparent cast-iron prosecution case but the reality may be different — an
innocent man may have been victim of a flawed or false prosecution.
Also, any
judgment of the court, howsoever well arrived at, cannot be totally infallible.
Judges are human beings and can go astray. Some times death penalty is
pronounced by a thin majority of one, other judges dissenting. Thus a human
life can be snuffed out even erroneously. In the matter of capital sentence,
the gravest factor is that the error is irreversible, since the sentencee is
dispatched to that “undiscovered country from whose bourne no traveler
returns”.
sentencing with judicial
wisdom
The penal
system and the sentencing process must become versatile gadget of reform of the
individual and social defence. For this judicial training is imperative.
Judicial conferences and sentencing workshops and institutional training for
trail judges are directly necessary. Law schools giving special law courses in
sentencing and correctional processes, exposure of judges to advanced psychological
and neurological and other medical theories and practices relevant to
justicing, and creation of Sentencing Boards with medical and other components
are some of experiments which hold out promise for the future.
Judges must
have sentencing options if they are to be functionally successful. Courts must
have the power to order compensation and damages in appropriate cases, direct
psychiatric or other treatment and investigation where necessary prescribing
probation or conditional suspension of imprisonment coupled with the duty to
report at meditation centers, healing clinics, training schools or community
service stations( for alcoholic and drug addicts and drivers with substandard
skills, for instances). In the case of juvenile offenders, special assistance
from medical personnel becomes valuable. Borstal Schools,
Attendance Centers, domiciliary visits,
non-institutional treatment and the like hold out remedial prospects. Rescue
Homes for women and other classified treatment possibilities, depending on their
background and social environs, need bolder experiments so that the findings
may be of benefits to the judiciary. Judges may insist, in their sentence
directions, on prison education and special training of the prisoner as a
member of the community. This latter is vital to any process of rehabilitation.
Indeed, psychiatric treatment of prisoners may be individual therapy or group
therapy, even sending them to special institutions, or back to the family with
work obligations.
Correction
without conviction, probation and parole, obliteration of conviction upon
release from prison are on the cards. The old theology in regard to penalties
is wholly out-moded. To put all the sentencing eggs in the imprisonment basket
is stupidity boundless. The very compulsion of advanced knowledge and higher
awareness of correctional potential makes for the need of Law and Medicine to
work together, blend their skills and make the art and science of sentencing a
social defence project. Judicare and Medicare must go together. Judicare
without Medicare is inadequate. Judicure without Medicure leaves the wound
half-healed and therefore the Judicure and Medicure must work in symbiosis.
Crime is a
disease and most criminals are a kind of psychic patients. Criminals are
curable humans and are not irredeemably brutish. A king cobra which, by chronic
habit, knows only to sting to death could be defanged and then what is the need
of killing the cobra? Destruction of individuals can never be a virtuous act
therefore the evil-doers cannot be done to death or decided to be a candidate
of hangman’s rope rather there must be attempts to convert lock-up behind stone
walls and iron bars into hospitals for healing the criminality. Medical
humanism and clinical pragmatism, not traditional legal torture as magic
healer, plus the non-negotiable character of the archetypal constitutional
guarantees of human rights of sentencees is the New Testament of Penology
essential to be written, redefined and reconsidered.
End word
A better world
is one without legal knifing to life, given promising social changes. All the
same, to sublimate savagery in personality or society is an elongated
experiment in spiritual chemistry where moral values, socio-economic conditions
and legislative judgment have a job. Judicial activism can only be a signpost,
a weathervane, no more. The penal direction in this jurisprudential journey
points to life in prison normally, as against guillotine, gas chamber, electric
chair, firing squad or hangman’s rope. The direction must be correct, and then
only the odyssey in the quest of nebulous truth in the abolition of lex talionis
could be a success.
The right to
life must win and for that the most momentous task to play is for the judiciary
with judges and justices sitting on the top of ivory tower pronouncing judgment
and delivering justice in injustice way. Remember that we call ‘killing
intentionally’ as a ‘murder’ and if so a judge pronouncing a verdict of death
sentence could be called a ‘murderer’. It is corroborated to say that as long
as the ‘seeming pure’ and ‘paramount as it is’ judiciary gives capital
punishment, it is a blood thirsty murderer which offers humans as oblation to
propitiate the Goddess of justice.
There needs
neither a lurid brush to draw in the backdrop nor acidic ink in the pen to
write about the hanging of a human being still in every somber dawn by the
legal process. One does not be a painter or a poet to get the picture of dying
reality in an artistic or a poetic way. Truth speaks it by itself. Death too speaks
for itself. But there must be someone to speak about the death and the victim
of the legal death. Be a lawman or a layman, be an Indian or a person just
visiting India,
the flag of humane justice shall be hung half-mast by anyone, such is the
symbolic reverence the land
of Gandhi should pay to
human life haltered up by the lethal law.
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