Capital Punishment

Violates Human Rights and

the Constitution
Rakesh Bhatnagar
Updated: 6 September, 2015 5:07 AM IST

Snapshot
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Abolishing Death Penalty

On an important issue like capital punishment, a government could
plead in the name of public opinion to further its own agenda
Death penalty debate takes centre stage with Yakub Memon being
sent to the gallows
Existence of death sentence in India is not only abhorrent, but also
violates human rights and Article 21 of the Constitution
Invoking public opinion would defeat the entire framework
enumerated in some judgements and the Constitution

Its largely due to the anxiety among people to know more about an
incident full of bizarre developments like the Sheena Bora murder
case which gets the eye balls. It is natural for a human being to yearn
for being the first to know. Though the emphasis given by media on
certain points which it considers vital for making a news interesting or
for its one-upmanship, it is for the people to form their own opinion.
The possibility of a consensus among millions of information-starved-
people will always be bleak. How much is too much, will also remain a
dilemma. So is the legitimacy of other punitive actions in a variety of
heinous crimes that attract the extreme penalty of death or
imprisonment. Or for that matter, the necessity of putting up a person
for trial in a case on the basis of fractured public opinion.
A similar argument was placed by the Union government in defence of
retaining death sentence on statute. It told the Law Commission that
has, however, in a split opinion recommended abolition of the capital
sentence except in terror cases, that public opinion demands it.
Capital Punishment Debate
Undoubtedly, a government could plead in the name of public
opinion to further its own agenda on an important issue. The
retention or abolition of the capital sentence had taken the centre
stage of media pages when the sole death convict in 1983 Mumbai
serial blasts case Yakub Abdul Razak Memon was trying hard to seek
the indulgence of Supreme Court for commutation of the extreme
penalty into life imprisonment. He lost the last remedy after about
three- hour long mid-night hearing by a bench of three Supreme Court
judges on July 30, 2015. He was hanged at 7 AM.
It wasnt for the first time that the sentence for death to a terror
convict had taken a political turn. Similar division of public opinion
was seen when the Parliament attack convict Afzal Guru was hanged.
But the sentence for death is also a hot cake for intense debates in view
of the fact that it has been banned in at least 140 countries because its
inhuman and archaic.
A decision to abolish the death sentence could be taken either by
keeping aside the public opinion or the sentence could be handed out
by a judge after taking into account the views of public. Perhaps, both
the propositions are far-fetched in the prevailing dispensation system.
Law Commissions Report
One could argue that public opinion is indeed a factor to be
considered while making important decisions which affect the
population at large. However, it is not necessary for the government to
follow public opinion on every issue, the Law Commission chairman
A P Shah said in a lengthy report which was submitted to Union Law
Minister D V Sadanand Gowda on August 31,2015.
Disapproving of the governments stand on death sentence, the multi-
member commission said, Indeed, the Government has a duty to
drive public opinion towards options which support fairness, dignity
and justice, which are constitutionally enshrined ideals.
There are undisputed precedents where laws, policies and practices
that were inconsistent with human right standards were supported by
a majority of the people, but were proven wrong. Eventually they were
abolished or banned. Leaders must show the way how deeply
incompatible the death penalty is with human dignity, the
Commission counsels the government.
(Photo courtesy: ANI)
Very few of the current abolitionist countries would have been able to
ever abolish the death penalty had they waited for public opinion to
change on the issue. Moreover, once the death penalty was abolished,
the legal framework motivated the public opinion to change radically
on the issue, and now the death penalty is thought of as unthinkable,
it adds.
(Photo: PTI)
Doing Away with Archaic Practices
Take the case of India where certain laws relating to social issues such
as Sati, dowry, untouchability, and child marriage underwent changes
for the betterment of society. All these medieval practices have been
banned now. Needless to say the government has the power to lead
public opinion even against deeply entrenched cultural norms.
Thus, it is an obligation to act accordingly when faced with issues
concerning human dignity and equality. The existence of death
sentence in India is abhorrent and an anathema to human rights and
Article 21 of the Constitution that guarantees right to life with dignity.
Fundamental rights dont cease to exist at the gate of prison.
It may be pointed out that a court does not have the means to
rigorously examine public opinion in a given matter. A cohesive,
coherent and consistent public opinion remains a fiction for the
dispensation machinery. The Commission, therefore, feels that the
opinion of members of the public can be capricious, and dependent
upon the (mis) information that the public is provided not only of the
facts of an individual case, but of the criminal justice process itself.
In such a situation, capital sentencing becomes a spectacle in media.
If awarding of sentence is in consonance with the wishes of the
majority, the media trial also becomes a possibility, something thats
impossible in a country guided by the rule of law and the Constitution.
In such situations, invoking public opinion would defeat the entire
framework enumerated in some judgements and the Constitution.
(The writer is a Delhi-based senior journalist)
First published: 6 September, 2015 5:07 AM IST

Source: https://www.thequint.com/news/india/capital-punishment-violates-human-rights-and-the-
constitution