PEOPLE AND THEIR PROBLEMS

New Delhi, 26 January 2006

Death for Death

MERCY PETITION AND THE PRESIDENT

By Justice Panachand Jain (Retd)

If we look at the history of the criminology, “eye for an eye” and “death for death” was the standard response of the society in the past.  Even today in the Middle-East, for many of the offences, the accused are publicly stoned to death.  However, if more than 80 countries in the world have abolished capital punishment, there must be weighty ground behind such a policy.

In Lachma Devi’s case, the Supreme Court observed that “a barbaric crime does not have to be visited with barbaric penalty”.  It was a case where the Rajasthan High Court awarded death penalty by hanging in public.  Justice Krishna Iyyer in Mohd. Giasuddin’s case observed in his inimitable style “progressive criminology across the world will agree that ……” the infliction of harsh and savage punishment is thus a realm of the past and regressive time.  We strongly feel that humanitarian wind blow into the prison barricades”.

One of the major arguments against capital punishment is its irreversibility.  Miscarriage of justice cannot be ruled out. Courts are not infallible.  Many cases are planted.  Witnesses so often tell lies.  Fabrication of cases by police is not uncommon.  We frequently hear of false encounters.  Against this backdrop, can we totally rule out the possibility of an innocent person being hanged?  The Constitution makers in Article 72 of the Constitution of India laid down this principle and has empowered the President of India to grant pardon and further ordained to commute death sentence to life imprisonment.

It was reported that the Home Ministry advised President Kalam that Dhananjoy Chatterjee should be shown no mercy and the sentence of death penalty be carried out.  But at the same time European Union in its communication addressed to the Government of India had advised for cancellation of death sentence.  Whatever may be the circumstances Dhananjoy was hanged.

The President in 50 cases where death penalty has been awarded, has advised the Home Ministry, Government of India to show mercy.  This has evoked wide spread media coverage and public debate.

A century ago in England, a servant used to be hanged in public for the theft of a spoon or a piece of bread.  It so happened that at the time of public hanging it was reported that many persons lost their purses due to pick-pocketing.  Consequently it was realized that the punishment by hanging had no deterrent effect and the punishment of death penalty, was abolished.

The Constitution Bench in Trivedi Ben’s case has held that inordinate delay in disposal of mercy petitions would be material for commuting the death penalty to life imprisonment. Under Article 7 of the Constitution of India, President has power to grant pardons, reprieves, respites or remissions of punishment or to suspend remit or commute the sentence of any person convicted of any offence in all cases in which the sentence conferring the power on the President is to correct possible judicial errors for no human system of judicial administration can be free from imperfection.

In countries which have not abolished the death penalty, in all cases commutation of the sentence of death should normally be considered favourable and for achieving this objective the International Organization came with a covenant titled as International Covenant on Civil and Political Rights, 1966.  Our country is a party to it.  Article 6 of the Covenant reads as under: Every human being has the inherent right to life; any one sentenced to death shall have the right to seek pardon or commutation of sentence.  Amnesty pardon or commutation of the sentence of death may be granted in all cases.

The Covenant thus empowers the President to commute the sentence of death to life imprisonment. It ordains that it may be granted in all cases. A covenant is a treaty or agreement which if ratified creates binding international obligation for the country concerned.

There has been a sea-change in the living conditions and thinking all over the world during the last one century.  The philosophy behind the capital punishment which guided the framers of Indian Penal Code more than 145 years ago cannot hold water today.  We should take note of the winds of change.  The civilized society should think of reforming rather than retribution.

The abolishment of death penalty proclaim that capital punishment is as fundamentally wrong as a cure for crime, as charity is wrong as a cure for poverty.  They also argue that the state does not have a right to take her citizens’ life, as life was not given by the State.

The death penalty thus in terms of the recommendation of the Law-Commission of India and the covenant of 1966 be abolished and instead life imprisonment in such cases be defined to mean imprisonment for the life without any reduction under no circumstances.  Separate rules be prescribed for dealing with the prisoners during the full term of punishment.---INFA

(Copyright, India News and Feature Alliance)