SEMINAR PAPER, ON THE TOPIC OF
“CAPITAL PUNISHMENT V. LIFE IMPRISONMENT”
SUBMITTED /PRESENTED TO: DR. PROF . S.C.ROY (ASSOCIATE FACULTY FOR CRIMINOLOGY) ON, THE 18TH OF NOVEMBER, YEAR 2010.
CHANAKYA NATIONAL LAW UNIVERSITY
PRITHVI SREERAMANENI (42), RAHUL ANAND (47), RAHUL VARDHAN (48), SHAILENDRA PAL SINGH RATHORE (61)
The researcher has attempted to gain an understanding of functionalities of the forces and theories governing the implications of capital punishment and life imprisonment, within the purview of Indian legal system as well as international legal practices.
The scope encompasses within itself the basic understanding and need for repealing of laws propagating capital punishment.
The methodology sought to be adopted for the purpose of this paper is largely doctrinal and analytical.
The researcher has relied on both primary and secondary sources of data. The library and online database materials are extensively used to bring out this paper.
The main research objective is to critically examine role played by interpreting authorities in identification of “rarest to the rarest crime”, its justification and subsequent application. Also the pivotal aspects of life imprisonment over capital punishment that is a imperative alternative to capital punishment through what means/theories
The Blue Book Mode (Cambridge Mode of Citation) has been adopted uniformly throughout the course of the research paper.
I TAKE THIS OPPORTUNITY TO EXPRESS MY HUMBLE GRATITUDE AND PERSONAL REGARDS TO PROF. S.C.ROY
FOR INSPIRING ME AND GUIDING ME DURING THE COURSE OF THIS PROJECT WORK AND ALSO
FOR HIS COOPERATION AND GUIDANCE FROM TIME TO TIME DURING THE COURSE OF THIS PROJECT WORK ON THE TOPIC
“CAPITAL PUNISHMENT V. LIFE IMPRISONMENT ”
“I EXPRESS MY GRATITUDE TO THE FACULTY OF, ‘CRIMINOLGY’ FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE OF WORK.”
YOURS S INCERELY,
GROUP NO.8 PRITHVI SREERAMANENI , RAHUL ANAND, RAHUL VARDHAN, SHAILENDRA PAL SINGH RATHORE
A B L E
O N T E N T S
I. I n t r o d u c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 II. T h e n a t u r e o f C a p i t a l P u n i s h m e n t . . . . . . . 2-21 2.1 Theologies of Capital Punishment...............................................................3-9
1) 2) 3) 4) 5) 6) The rise of abolitionist movement Theories of Punishment Deterrent Theory Retributive Theory Preventive Theory Reformative Theory
2.2 Race and death Penalty..............................................................................9-12 2.2.1 A Social Dominance Theory Explanation
2.2.2 The reality today
2.3 An Unequal Field: The Poor and the Death penalty.............................12-15
2.3.1 Poverty as a Factor in Sentencing: Mulla Vs State of UP
2.4 The Trial of Saddam Hussain..................................................................15-19 2.4.1 The Importance of Saddam‟s Trial
2.4.2 Capital Punishment as an option (1) Offence under International Law no penalty under domestic law (2) Penalty according to underlying Crimes (3) Following International Precedents
2.5 Barely Conceded Murder: The Death Penalty and the Mentally Retarded............................................................................................................19-21 III. C o n s t i t u t i o n a l V a l i d i t y o f C a p i t a l P u n i s h m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23 IV. C r i t i c a l A n a l y s i s o f I n d i a n L a w i n t h e V e r g e o f I n t e r n a t i o n a l I n s t r u m e n t . . . . . . . . . . 24-29 V. A r g u m e n t s ag a i n st D eat h P e n a l t y . . . . . . . . . . 29-34
5.1 Death Penalty and Human Rights.............................................................30-34
. . . . . . (4) Second optional protocol to the international covenant on civil and political rights: (5) Protocol to the American convention on Human Rights. . . . . . . .
VI. . . VI-XI
. . B i b l i o g r a p h y . .2 International Norms Regarding Death Penalty (1) Universal Declaration of Human Rights. . . . (2) International Covenant on Civil and political right (1966). . . . .1 Defining Death Penalty in terms of Human Right
5. . (3) International treaties providing for abolition of Death Penalty.13 to the European Convention on Human rights. . . . .1. . .5.6 to the European Convention on Human Rights. . .1. . . . (7) Protocol No. 35-37
VII. . . . . . C o n c l u s i o n s
a n d
S u g g e s t i o n s . . . . (6) Protocol No. . .
Article 2 of the Charter of Fundamental Rights of the European Union. Journal of Politics.3
Supra.org/deathpenalty/DPinformation.html>.I.2 Jagmohan Singh v. No one shall be condemned to the death penalty or executed”
Supra. 225 (2000)
. It reads “Everyone has the right to life. Vol. State of UP . 3 The European Union has taken the lead in this field having abolished it totally. Available at <http://www. The Criminal Legal Justice Foundation‟s reasons for retaining the death penalty. and not the writ of the law. Its supporters cite it as a vital tool in combating crime especially stressing on its value as a deterrent. a contentious issue in the field of criminal law and sentencing. Last accessed on the 11th of April 2010
For a non exhaustive list of the criticisms. its utility as a retributive tool and the inadequacy of life imprisonment for punishing somebody who has extinguished another life.7 Capital punishment offers a form of direct democracy that is scarcely found in any other sphere of public policy. 1956-82.amnesty. see the Amnesty International Report on Death Penalty Worldwide. 1 Its opponents critique it as an anomaly from medieval times. 6 It is argued that the judge‟s personal beliefs. 8 Judges drawn from the ranks of the commons make the decision to take or spare the life of a convict on
See. Mooney and Mei Hsein Lee.amnesty. cruel and barbaric in practice.1. 5 A major criticism levelled against the death penalty is the amount of discretion vested in the judges during sentencing. n.2 These concerns have been the primary reason behind the recent abolitionist trend in the world.62. the inherent irony in the State emulating the murderer‟s actions and the impossibility to make amends should proof of innocence be found later on. Available at <http://www.org/en/death-penalty>.cjlf. (1973) 1 SCC 20. Other frequently levelled criticisms include the arbitrary manner of its imposition. inter alia. Available at <http://www. n. 4 More than half of the world‟s population however still lives in countries that retain the death penalty. 2010
Abolitionist and Retentionist Countries in the World-A Report by Amnesty International. No. Last accessed on the 11th of April. Arguments on behalf of the plaintiff 8 Christopher Z. that decides who shall live or not. The Influence of Values on Consensus and Contentious Morality Policy: US Death Penalty Reform.org/en/death-penalty/abolitionist-and-retentionist-countries> Last accessed on the 11th of April. Introduction “I am a human being and nothing pertaining to human is alien to me” -Karl Marx The death penalty has been. and continues to remain.
State of West Bengal (1994) 2 SCC 220 and Rahul alias Raosaheb v. Both cases involved rape and murder of minor girls and the factual matrix too was very similar. This holds true not only for the United States but also for India.death row. It shall look at how markers like a person‟s class. 303 of the Indian Penal Code that provided for a mandatory death sentence for murder committed by a life convict on. n. Vol.
II. Georgia. LEGAL HOMICIDE 28 (1984) 14 Ibid 15 See. 16 AIR 1983 SC 473
. While not exclusively India-centric. the latter saw the sentence being commuted to life imprisonment. thus directly translating their personal beliefs into public policy. The term disadvantaged has been therefore given wide latitude. inter alia. no procedural system can possibly identify all of them. 14 A brutal murder may see the perpetrator sentenced to death while in an equally heinous crime the Court may find life imprisonment to be sufficient.. State of Maharashtra (2005) 10 SCC 322. The Nature of Capital Punishment
The issue of arbitrariness in the imposition of death penalty has achieved prominence in the discourse on death penalty since Furman v. the Supreme Court of the US came around to the belief that for the vast majority of the people „eligible‟ for the death penalty. Dhananjoy Chatterjee alias Dhana v. a select few were chosen to be executed on no distinguishing grounds. State of Punjab16 where the Court struck down S.11 In this landmark case. 773 (2000) 10 Supra. BOWERS. 12 This was a restatement of the „procedural argument‟ claim put forward by the abolitionists. race and mental health affect his chances of being put to death. this project also includes a study of a recent judgment of the Supreme Court of India that for the first time considered an accused person‟s socio-economic status as a mitigating factor during a death sentence hearing. 9 Such beliefs may take the form of arbitrariness in the best and outright bias in the worst. The Multi Layered Impact of Public Opinion on Capital Punishment Implementation in the American States.15 The importance of this discretion to the Supreme Court of India may be judged from their decision in Mithu v. it infringing
Barbara Norrander. CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 20 (1981) 13 W. 13 Even if one were to assume that certain killers need to be executed. inter alia. Political Research Quarterly. 10
This project aims to examine the veracity of this claim. While the former resulted in the death sentence being awarded (and carried out).7 11 408 US 238 (1972) 12 CHARLES BLACK JR.53.
in the Enlightenment years. overrated as a deterrent and occasionally imposed in fatal error. Jeremy Bentham and Samuel Romilly.1 Theologies of Capital Punishment The state has inflicted death as a punishment. Does it Matter if the Death Penalty is Arbitrarily Administered?. some conduct was interpreted as offence against the ruler. however. The separation of the state and religion. Capital punishment is the lawful infliction of death as a punishment. the debates on penology have consistently questioned the appropriateness of retribution and societal vengeance as a drive-force behind punishment. the French philosopher. and the English law reformers.uk/thoughts.html (visited on 09/09/2010)
. as why the state punishes. Vol. Parliament had enacted many new capital offences and hundreds of persons were being put to death each year. By 1500 in England. No. on its subjects since the ancient times.clark32.co. Ever since. Hence. These were times when the state and the dominant religious establishment (in some cases. and arson.2 (1985). burglary. only major felonies carried the death penalty . they defended life imprisonment as a more rational alternative.btinter-net.richard. Along with Quaker leaders and other social reformers. They argued that the death penalty was needlessly cruel. Voltaire.treason.18 Reform of the death penalty began in Europe by the 1750‟s and was championed by academics such as the Italian jurist. rape. 17 arbitrariness arising from bias cannot be. The Bible prescribes death for murder and many other crimes including kidnapping and witchcraft. Philosophy and Public Affairs. Cesare Beccaria. the „church‟) were hand-in-glove. if not condoned. what it seeks to achieve thereby. as well as an offence against God.149-164 18 See http://www. murder.
See for example. p. Stephen Nathanson.
2. has seen theories of punishment incorporate many different perspectives. and hence what method and procedure criminal punishment should take account off.upon judicial discretion. By 1700. While general arbitrariness may be excused. 14. larceny.
Stoning for sexual offences. Today. the Philippines. communitarian biases that exist within a society get reflected through state agencies in the procedures of the criminal justice system. gender. The fact that racial. Thailand and Guatemala. attention has been focused on the relative mismatch in power between the state machinery that can lawfully inflict violence.that at the very outset. Venezuela (1853) and Portugal (1867) were the first nations to abolish the death penalty altogether. and the individual offender. which does not measure punishment against the brutality of the crime. carries out the most executions for a wide variety of offences. The violence of the state machinery. is also used extensively now in China. China. which is almost universal in America. the Amnesty International. However. championed by organizations like the American Civil Liberties Union. the human rights movements. and international setups like the European Union and the UN. may still occur in some Islamic countries. In later years.that is routinely used by law-enforcing agencies like the police is a fact that cannot be denied under any circumstances. the Democratic Republic of Congo. have espoused the cause of humane punishment. The lethal injection.(1) The rise of the abolitionist movement.org/pages/deathpenalty-countries-eng > (visited on 10/09/2010) Table 1
. it is virtually abolished in all of Western Europe and most of Latin America.amnesty. including adultery. 19 The following table may facilitate the understanding of global trends on abolition and retention of capital punishment 20:
Abolitionist for all crimes: 88 Abolitionist for ordinary crimes only: 11 Abolitionist in practice: 30 Total abolitionist in law or practice: 129 Retentionist: 68 20 <http://web. China. the death penalty continues to be commonly applied in other nations. In light of these realities. is a reality. but the aim of punishment itself. with the progress of the human rights movement worldwide. with a quarter of the world's population. the United States and Iran are the most prolific executioners in the world. Electrocution and the gas chamber are used only in America and seem to be disappearing slowly.
Abolitionist of Capital Punishment for all Crimes
Abolitionist in practice Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years. Saint Christopher & Nevis. Central African Republic. Bangladesh. Bulgaria. Mexico. Chad. Nigeria. Ireland. Indonesia. otswana. Mali. Hungary. Lebanon. Grenada. Niger. Greece. Kyrgyzstan. Brunei Darussalam. Jordan. Papua New Guinea. Dominica. Bahrain. Bosnia-Herzegovina. Lesotho. Congo (Republic). Dominican Republic. Italy. El Salvador. Brazil. Bahamas. Suriname. Germany. Guyana. Algeria. Croatia. Armenia. Swaziland. Congo (Democratic Republic). Gambia. Kazakstan. Libya.Table 1. Madagascar. Tonga. Angola. Bhutan. Malaysia. Azerbaijan. Guatemala. Belgium. Cameroon. Mongolia. Bolivia. India. Guinea. Japan. Oman. Guinea-Bissau. Iceland. Liechtenstein. Antigua And Barbuda. Tunisia
Abolitionist for ordinary Crimes only
Retentionist till date
Afghanistan. Kuwait. Jamaica. Korea (North). Togo. Chile. Israel. Finland. Eritrea. Lithuania. Djibouti. Cape Verde. Nauru. Myanmar. Sri Lanka. Belize. Liberia. Belarus. Honduras. Burkina Faso. China. Macedonia (Former Yugoslav Republic). Gabon. Malta. Czech Republic. Marshall Islands. Comoros. Ecuador. Iran. Kiribati. Palestinian Authority. Cote D'ivoire. Colombia. Laos. Russian Federation. Fiji. Rwanda. Georgia. Canada. Latvia. Cook Islands. Iraq. Micronesia
Albania. Cambodia. Australia. Morocco. Mauritania. Equatorial Guinea. Korea (South). Luxembourg. Maldives. Haiti. Costa Rica.
. Qatar. Egypt. France. Malawi. Cyprus. Barbados. Argentina. Estonia. Pakistan. Mauritius. Benin. Kenya. Austria. Ghana. Ethiopia. Cuba.
With change in the social structure the society has witnessed various punishment theories and the radical changes that they have undergone from the traditional to the modern level and the crucial problems relating to them. Poland. Philippines. Nicaragua. Uzbekistan. Sao Tome And Principe. In the words of Sir John Salmond -The ends of criminal justice are four in number and with regard to the purposes served by them. Uruguay.(Federated States). Taiwan. Tanzania. Switzerland. Viet Nam. Sierra Leone. Samoa. Yemen. Vatican City State. Solomon Islands. Montenegro. Singapore. Seychelles. (2) Theories of punishment
Saint Lucia. Panama. Tajikistan. San Marino. Venezuela . Slovenia. Niue. punishment can be divided as under:
. Paraguay. Serbia. Somalia. United Arab Emirates. Moldova. Nepal. Sudan. Spain. Senegal. Turkmenistan. Turkey. Monaco. Tuvalu. Ukraine. Saudi Arabia. Netherlands. United States Of America. Saint Vincent & Grenadines. United Kingdom. Uganda. South Africa. Mozambique. Timor-Leste. Norway. Slovak Republic. Palau. Zimbabwe. Sweden. Thailand. Trinidad And Tobago. Syria. Zambia. Vanuatu. Romania. New Zealand. Namibia. Portugal.
One of the primitive methods of punishments believes that if severe punishments were inflicted on the offender it would deter him from repeating that crime (J. while sending the criminals to the prisons to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements. punishment would be useless”). this theory aims to prevent the crime rather then avenging it. who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. committed as an isolated fact.+ppt. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind of solace to the victim or to the family members of the victim of the crime. it is assumed. Bentham.che:rM4Y qsiMWL8J:www. If we could consider an offence. To neutralize this inclination of the mind. punishment inflicts equal quantum of suffering on the offender so that it is no longer attractive for him to carry out such committal of crimes.com/search?q=ca.
(5) Preventive theory Unlike the former theories.
(4) Retributive theory The most stringent and harsh of all theories retributive theory believes to end the crime in itself. Those who commit a crime. The basic idea of deterrence is to deter both offenders and others from committing a similaroffence.org/thisismyhome/resources/Intro_HR_and_HRE. states: "General prevention ought to be the chief end of punishment as its real justifycation. derive a mental satisfaction or a feeling of enjoyment in the act. and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.hrusa.&hl=en&ct=clnk&cd=8&gl=et (visited on 10/09/2010)
. the like of which would never recur. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs that is. which has been.(3) Deterrent theory Since the Code of Hammurabi in Babylone21 the ancient history of Punishment before all things was deterrent. the founder of this theory.google.ppt+Philosophical+and+Legal+found ation +of+Human+Rights.
This is in contrast to their 30% share in the population over the same period.census. Though it may be true that there has been a greater onset of crimes today than it was earlier.org/race-death-rowinmatesexecuted >1976. Reformative techniques also possess some elements of deterrent techniques. Social Dominance Orientation: A Personality Variable Predicting Social and Political Attitudes.23 44% of the convicts executed have been ethnic minorities. Journal of Personality and Social Psychology (1995)
.gov/servlet/DTTable?_bm=y&-context=dt&ds_name=ACS_2008_1YR_G00_&-CONTEXT=dt&-mt_name=ACS_2008_1YR_G2000_B02001&tree_id=306&redoLog=false&-all_geo_types=N&-currentselections=ACS_2006_EST_G2000_B02001&geo_id=01000US&search_results=01000US&-format=&-_lang=en. Available on http://factfinder.2.. of all theories is based on the principle of reforming the legal offenders through individual treatment.1 A Social Dominance Theory Explanation Social dominance theory is a theory of group relations that states that societies tend to form group based social hierarchies based on agents like nature of social ideology and aggregated interpersonal and institutional behaviours. Instead it views social hierarchy as a continuum along
Death Penalty Information Centre.2 Race and Death Penalty The issue of race in the imposition of death penalty is an important one in the US where available evidence suggests a wide difference in the way Whites and Blacks are treated by the law.deathpenaltyinfo. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory.
2.22 Since the death penalty was reinstated in 1976 after Gregg v. which would prevent the occurrence of further crimes. Available at <http://www. Last accessed on 11th April. 2010 25 F Pratto et al. 25 Social dominance theory does not categorize societies as hierarchical or not so.(6) Reformative theories The most recent and the most humane theory. Last accessed on April 11.24
2. Georgia. 2010 23 428 US 153 (1976) 24 US Census Bureau-Race. but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life alltogether.
No. The Journal of Politics. Vol. Social Hierarchy and the Death Penalty: A Social Dominance Perspective. Sidanius et al. 32 The very same reasons make the political liberals oppose the death penalty. 26 Therefore there is at least one dominant (or hegemonic) group that dominates over one or more subordinate groups. The Gulf War and the Rodney King Beating: Implications of the General Conservatism and Social Dominance Perspectives.2 The Reality Today The connection between the race of the defendant and the likelihood of his being put to death was ignored by the US Courts as well as the Academia till the turn of the century. 593 (1995) 32 Ibid.27 This theory therefore views death penalty as much more than a crime control measure.16. 65. 33
2. 33 Ibid. Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience. 31 Political conservatives in general tend to be more supportive of the death penalty because it will never be equally applied across the social spectrum and will always be favourably biased towards the dominant sections of the society. 28 If the primary function of the death penalty was indeed crime control. 34 481 US 279 (1987) 35 David C. the Blacks and the Hispanics) would have been its most ardent supporters.
. Why do White Americans Support the Death Penalty. Sidanius and Liu J. then one would have expected that groups that are the primary victims of violent crime (viz. In McCleskey v.2. As such it will further promote the cause of social hierarchy. an African American convicted of murdering a White police officer.29 However a trend that has been observed consistently over surveys through the years is that the Whites are significantly stronger supporters of death penalty than other ethnic groups. 35 In its widely criticized
Ibid J. David Baldus that showed that on an average a Black man accused of murdering a White person stood a risk four times greater of being executed than if it had been the other way round. on the basis of a study conducted by Prof. Capital Punishment and the Beating of Rodney King: A Social Dominance Perspective. Vol. The Death Penalty. It is also an instrument of social hierarchy enforcement through institutional discrimination.2. 34 the US Supreme Court was asked to overturn the verdict of death passed on the appellant.30 Political ideology and the degree of social hierarchy are other factors that affect the use of death penalty. Journal of Social Psychology 132 (1992) 28 J.. Baldus et al.which all societies can be located. Journal of Social Psychology 112 (1994) 29 Ibid 30 Joe Soss et al. There were exceptions however. Political Psychology. 397 (2003) 31 Michael Mitchell and Jim Sidanius. No... Kemp.3.
40 55% of the inmates on the death row in the United States today belong to ethnic minorities.39 As already pointed out. Vol..30 38 Frank R.39. 42 Ibid. 750 (1983) 36 Anthony G. Prime Suspects: The Influence of Local Television News on the Viewing Public. All kinds of racial stereotypes are used by many White Americans to justify these disproportionate statistics. 560 (2000)
. 42 Beyond plain statistics. Columbia Human Rights Law Review. American Journal of Political Science.41 In interracial murder cases while only 15 Whites have been executed for murdering a person of the other race. Amsterdam. Blacks and other ethnic minorities are executed in numbers far beyond their proportion in the population.Americans are excluded from jury pools by District Attorneys in capital cases.decision. 41 Ibid. No.3. Race and the Death Penalty Before and After McCleskey.36 the Court held that a mere discriminatory effect is not enough to hold the Government guilty of violating the Fourteenth Amendment. 43 Thomas Keil and Gennaro F Vito. 44
The American public has come around to accept this interplay between race and the death penalty as a fact of life.18. American Journal of Political Science.4. Persuasion and Resistance: Race and the Death Penalty in America. Vol. The Baldus Study was dismissed as an “inevitable part of the criminal justice system”. n. 17 (1995) 44 Mark Peffley and Jon Hurwitz. A discriminatory act needed to be proven. Meeting of the Midwest Political Science Association (2004) 39 Ibid 40 Supra. no less than 242 Blacks have been executed for the same offence. 43 All this in a country that is around 70% White! Evidence has also been presented for the phenomenon of „jury-bleaching‟ where African.44.37
Things had largely changed by the advent of the 21st century as a study by Baumgartner found.1. Baumgartner et al. No. 45 A perception of discrimination has also taken root among the African-American population who see the death penalty as a highly racial form of
Journal of Criminal Law and Criminology. An Evolutionary Factor Analysis Approach to the Study of Issue-Definition. 998 (2007) 45 Franklin Gilliam and Shanto Iyengar. 34 (2007) 37 Supra.74. this has been borne out by academic studies as well.20. Vol. Race and the Death Penalty in Kentucky Murder Trials: 1976-91. Vol.51. All the states of Union that still carry out executions have formed commissions to investigate allegations of such bias. Vol.3. No. American Journal of Criminal Justice. n.38 Race as a factor in the handing out of capital sentences had entered the domain of public discussion. No.
Conceptions of Crime and Justice. Law and Inequality: Race.35. 50 Keeping this in mind it is perhaps a safe guess to hazard that in countries that impose the death penalty today. 188 (1996) 51 Jefferey L. if not sponsored. JUSTICE AND THE POLITICS OF DIFFERENCE 61 (1990) 49 This segment and the one following it draw heavily on Amnesty International and PUCL. However it also must be recognized at the same time that merely having a lawyer will not do in capital punishment cases where winning or losing a case is a life or death question.52 The importance of a competent lawyer is even greater in the adversarial system especially in the US where the jury system is followed. No.1. the relationship between poverty and death penalty is a lot more complex. 1 Seattle Journal of Social Justice. May 2008. 67 (1991) 47 Steven Cohn et al. of Course. Johnson. Race. 51
The right to legal representation forms the bedrock of our justice system.47 Put simply.54. the death penalty is a form of statetolerated.2. Social Problems. and Support for the Death Penalty. who are generally forced to rely on a Court appointed public defendant.22. 73 (2003)
. in turn. Vol. Class. Race.46 This finds support in the studies that have shown that while Blacks and Whites favour equally punitive punishment for criminals. probably have their fate sealed at that stage.3 An Unequal Field: The Poor and the Death Penalty 49
Unlike racial discrimination in the imposition of death penalty where an obvious bias sends ethnic minorities to their deaths. Punitive Attitudes towards Criminals: Racial Consensus or Racial Conflict?. Gender…and. Poverty and the Death Penalty. Blacks are far less likely to support the death penalty out of fear of victimization. the difference between those who escape the gallows and those who don‟t is one of wealth. Therefore as Bright argues.punishment. The standard of the Public
Robert Young. especially for their India related sections 50 Carroll Serron and Frank Munger.2. Poverty. Vol. No. 519 (2001) 52 Stephen B. The poor. Annual Review ofSociology. Vol.38. Johnson and Colleen F. Journal of Economic Issues. Social Psychology Quarterly. Class describes an individual‟s position with respect to the central economic and cultural institutions of society and. 287 (1991) 48 IRIS MARION YOUNG. No.. and the Responsibility of the Legal Profession. Bright. one of the faces of oppression identified by Iris Young.48
2. relates that position to the social resources available to the individual. the right to a competent lawyer is essential in such cases. the Death Penalty. Vol. Lethal Lottery-The Death Penalty in India. violence perpetrated on the ethnic minorities.
DEVELOPMENT AS FREEDOM 89 (1999): Sen argues that being poor in a rich country is a great capability handicap. or absolute lack of. Poverty and Capital Punishment Go Hand in Hand. 57 IPS Death Abolition Project. there have been many cases where the Supreme Court has lamented either the quality of. where the victim‟s family may let the murderer off the hook on his paying the diyat (blood money). the poor have no such luck. 2007. 1983) Taylor v. 2010 58 Ibid. 53 the lawyers for the defence.58 In Arab Countries. 1983. October 17th.55 failed to demand the same. every accused shall have the right to legal aid. More than a hundred people on the death row in Japan are indigents who could not afford their own lawyers and depended on state supplied legal aid. As it turned out. Available at http://ipsnews.defendants is abysmally low. without payment. Last accessed on 12th April.2d 1459 (11th Cir. 59 AIR 1951 SC 124
. nevertheless held that the lack of such legal aid would not vitiate the trial.57 Similarly in Malaysia. A relative deprivation in terms of income leading to a lower standard of legal aid available becomes an absolute one as the death penalty has no midway. He was executed on December 15. unaware of a recent Supreme Court decision 54 that mandated an adequate representation of women in the jury for the trial to be not violative of the Sixth Amendment. in the case of Smith v. More income is needed to buy enough commodities (in this case legal aid) to achieve the same social functioning. Louisiana. even in the US. This is codified in Indian law under Section 304 of the Criminal Procedure Code. 419 US 522 (1975) 55 The Sixth Amendment to the US Constitution provides for the accused‟s rights during criminal prosecution 56 AMARTYA SEN. the poor are at an obvious disadvantage owing to their inability to pay. legal aid being rendered to the accused. His financially better off co-accused‟s lawyers however did. 56
The very scale of such miscarriages of justice is staggering. Article 14(3)(d) of the Covenant states that at the minimum.
715 F. more than 270 out of the 300 on death row fall below the poverty line.asp?idnews=39683. Kemp. For instance.59 the Supreme Court while conceding the fact that the Trial Court should have arranged for some sort of legal aid for the indigent accused. 1973. if necessary.
India has both signed and ratified the International Covenant on Civil and Political Rights. the latter got a retrial where he was sentenced to life imprisonment while Smith was sentenced to death. While evidence from the trial court stage is scarce. Thus while the rich get away owing to their better lawyers.net/news. In Janardan Reddy and ors v The State.
State of Madhya Pradesh. including a woman.In Bashira v. State of Uttar Pradesh.” 65
AIR 1968 SC 1313 Husaina v. To quote from the judgment. “. barely three years later.60 that is paid to senior lawyers who take up legal aid cases. AIR 1971 SC 260.63 the Court castigated the High Court for upholding a death sentence even when the legal aid lawyer had not made any pleas regarding the sentence.they have committed these heinous crimes for want of money. 62 (2002) 10 SCC 193. 63 (1995) 3 SCC 392. While not a justification for crime. Here too their guilt was found to be proven beyond doubt. The High Court upheld the verdict leading them to approach the Supreme Court. State of Uttar Pradesh. 396 of 2008. In Durga Domar v..1 Poverty as a factor in sentencing: Mulla v. the Court took into account the 48th Law Commission Report that had suggested that many a times crime is the result of socio-economic factors.. 2. such reasons may be counted among the mitigating circumstances in the Court‟s opinion. 64 Criminal Appeal No.61 the Court took the opposite view holding that the witnesses to be examined were not important. 65 Ibid. Referring to their “circumstances generally”. The litany of cases where poor legal aid led to the accused‟s damnation is a long one indeed.62 the Court stated that as the accused had a legal aid lawyer. State of UP64 The accused in this case were charged with the murder of four people. It is perhaps not surprising given the remuneration of Rs.
. the Supreme Court ordered a retrial giving a strict interpretation to procedure established by law.3. Though we are shocked by their deeds. State of Bihar. However. Para 55. The facts of the case were never in doubt and they were consequently sentenced to death by the Trial Court.60 where a person sentenced to death had had his lawyer appointed on the morning the witnesses were examined. we find no reason why they cannot be reformed over a period of time. in an almost identical case. it is possible that they would have never communicated! In Sheikh Ishaque and Ors v. However the Court took a novel stance as far as the sentence was concerned. The Court also ventured its opinion that socio-economic emancipation may lead to the criminal‟s reform.
most of whom are first time criminals. The first trial of Saddam Hussein began before the Iraqi Special Tribunal on October 19. In this case Hussein. Saddam Hussein was sentenced to death by hanging. was tried for allegations of crimes against humanity with regard to events that took place after a failed assassination attempt in Dujail in 1982. As rightly remarked by the Court. 2005. Hussein and the others were specifically charged with the killing of 143 Shiites. The Court‟s via media of incarcerating him for a sufficiently long period to serve the ends of justice while at the same time attempting to reform him is praiseworthy.4. followed. Legitimacy and Alternatives. Saddam's appeal was rejected and the death sentence was given. mandated by the Iraqi judicial system. Cornell Law Rev 2006). 67 On November 5. however it must not be lost sight of either. No further appeals were possible and sentence was to be executed within 30 days of that date. The Trial of Saddam Hussain
Brief Facts of the Trial:
Iraqi authorities put Saddam Hussein and seven other former Iraqi officials on trial on October 19.The distinguishing facet of this case. An appeal. “that a criminal who commits crimes due to his economic backwardness is most likely to reform. “It may not be misplaced to note” the Court says. To Hang or Not to: A Case Comment on Mulla v. The motivations for an economic crime for a poor man are usually procuring basic necessities of life for him and his family. A laudable observation of the Court was its linking economic poverty with ability to reform. thus. this fact itself cannot be taken to be an excuse for crime. is its addition of socio-economic factors to the list of mitigating circumstances. 2005 four days after the October 15. 2005 referendum on the new constitution.” The implications of this one statement are indeed far reaching. April 2010
(Christian Eckart. State of UP.
. “Saddam Hussein‟s Trial in Iraq: Fairness. 66
2. Hanging a person for a hunger induced crime will be as much a miscarriage of justice as freeing him on the same count. on December 26. A Legal Analysis”. along with seven other defendants.
Abdaal M. 2006. However. Where it becomes relevant is in the matter of sentencing where attempts at reform are usually very successful with the miserably poor. drawn to crime by necessity. On 30th December. AIR Web Journal. Akhtar and Mrinal Meena. The „socio‟ bit has been overlooked in the decision as the judges confined themselves to discussing economic backwardness as a reason for crime.
a dictator that himself made extensive use of a special Revolutionary Court guaranteeing fast executions but by no means due process of law. by holding Saddam accountable. “The Trial of Saddam Hussein: What Kind of Court Should Prosecute Saddam Hussein And Others For Human Rights Abuses?” 27 Fordham Int‟l L.loc. legal experts. 2006. there is the hope that this trial might serve as a model for Iraq and might help to re-establish trust in the judicial system and its protection against the deprivation of rights which has been strongly eroded by the past 23 years of Saddam‟s reign and to thereby allow the country a “new start” based on firm legal principles. <http://www. 69 Whether this is true or not. 2003-2004 at 1503-1504 71 See the proceedings against General Pinochet in Spain and Chile.edu/saddamtrial/.html> (visited on 9/9/2010)]
See Michael Scharf. The trial might thereby serve as another mosaic stone in establishing the rule of law and deter others from stepping over the lines drawn by international agreements and custom in the area of international criminal law71.2006 (Id ul-zuha – the Muslim day of forgiveness) Saddam Hussein. against Slobodan Milosevic in front of the ICTY. April 22.gov/law/public/saddam/saddam_prin. and indeed the general public. “Grotian Moment: Is the Saddam Hussein Trial one of the most important trials of all time?” Issue # 10 http://www.4. Why does the trial attract so much attention one may wonder and why do so many people care about ensuring fair proceedings for an ex-dictator on trial for major human rights violations. the Ex Rwandan Prime Minister Kambanda in front of the ICTR and now against former Liberian Head of State Charles Taylor in front of the Special Court for Sierra Leone
. CBS News. the current criminal proceedings add another name to the list of recent precedents in which heads of state had to face charges for violating international law. “Comments On The Indictment Of Saddam Hussein” <http://www.
The answer to this is two-fold. “The Trial of the Century”. embraced the gallows with face uncovered and Quran in hand at 06:05.1 The Importance of Saddam‟s Trial With the questioning of Saddam Hussein in front of the Iraqi High Criminal Court. a trial began that has been labelled by some as “the trial of the century”.cbsnews.
2.law. 1490.70 Secondly.2 Capital Punishment as an Option
Issam Saliba.J.shtml> (visited on 09/09/2010)]. firstly.4.case. the proceedings in Baghdad received high publicity and were under close scrutiny by major human rights organizations.com/stories/2003/12/15/news/opinio n/court-watch/main588751.
Iraq is yet to incorporate this offense in its domestic law. However. matters of jurisdiction and procedure of the Tribunal should be decided by the Iraqi Penal Code.html (visited on 09/09/2010)
. 2006. such as murder.In its closing argument on June 19. The IST was established by the Iraqi law. gives rise to capital punishment while a more serious crime. in order to determine whether the Iraqi Special Tribunal (IST) could actually award the death penalty. Over the last decade. the prosecution in the Al-Dujail trial demanded the death penalty for Saddam Hussein and three of his co-defendants. and perhaps the most prominent. While international criminal law has recognized this offense for about sixty years.whether the death penalty was even available under Iraqi law for the offence of crimes against humanity. Penalties for such crimes include capital punishment. The logic of this argument is strengthened by virtue of the fact that it would be hard for the public to accept a decision where a lesser offense. The Iraqi Penal Code does not include a penalty for the international offense of crimes against humanity as the offense has not been made a part of the domestic law. gives rise to only a prison sentence.gov/law/public/saddam/saddam_capi. The latest tribunal formed.
(2) Penalty according to underlying Crimes. “Is The Death Penalty An Option In The Trial Of Saddam Hussein?” http://www. It is not clear whether the charges are based on international or domestic criminal law. 72
Issam Michael Saliba.loc. This demand and the final verdict of the Tribunal raise the issue. the international legal community has witnessed the establishment of a variety of international and national tribunals that have had to come to terms with capital punishment. is the Iraqi tribunal where Saddam Hussein has been accused of crimes against humanity. therefore.
Saddam Hussein and his co-defendants are charged in the present trial with the international offense of crimes against humanity. such as murder and rape. such as the offense of crimes against humanity. The side arguing for the award of the death penalty stated that the penalties to be applied to those convicted of committing the international offense of crimes against humanity must be equivalent to those penalties assigned to underlying crimes which constitute the physical elements of the international offense. the following issues have to be examined:
(1) Offence under international law no penalty under domestic Law.
The opposing argument on this count is that any interpretation suggesting that the penalties for the international offense of crimes against humanity are those assigned to its underlying crimes is misconceived on the basis that an international offense is separate and distinct from its underlying crimes. July 1. 29.
. Art. <http://www.> (visited on 09/09/2010) 74 Rome Statute of International Court. T.htm.Ch. IT-96-22-T. This argument is supported by the sentencing judgment in The Prosecutor v. Drazen Erdemovic73 in which the International Tribunal for the former Yugoslavia rejected the proposition that the penalties for the international offense of crimes against humanity must derive from the penalties applicable to its underlying crime (The ICTY held that. 2002.icccpi. precedents and penalties of international criminal tribunals.org/icty/erdemovic/trialc/judgement/erdtsj961129e. The Trial Chamber rejects such an analysis.pdf> (visited on 10/09/2010)."74
Article 24 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) provides that "the penalty imposed by the Trial Chamber shall be limited to
Case No.un. Article 77 of the International Criminal Court specifically excludes the death penalty as a punishment for crimes against humanity or any other international offenses. As an example. 77. <http://www. “…It might be argued that the determination of penalties for a crime against humanity must derive from the penalties applicable to the underlying crime. int/library/about/officialjournal/Rome_Statute_120704. 1996. In the present indictment. one would recognize clearly that the death penalty is not permitted in any of these international forums. Nov. I.EN. the underlying crime is murder …. Identifying the penalty applicable for a crime against humanity – in the case in point the only crime falling within the international Tribunal's jurisdiction . The Court is allowed to only impose imprisonment for a specified term not to exceed thirty years or a term for life "when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.cannot be based on penalties provided for the punishment of a distinct crime not involving the need to establish an assault on humanity…”)
(3) Following International Precedents: Further the Iraqi Penal Code has a provision which directs the judges to follow the precedents and penalties imposed by other international criminal tribunals if the penal code has no relevant provisions. By reviewing the statutes.
2002. Art 24. other than a juvenile offender. 23.ohchr. 77 Since there have been no death penalty judgments issued by any international criminal courts subsequent to those issued by the Military Tribunal of Nuremberg in 1946.= <http://www. Art. 76 contains a similar provision. Art.Safeguard 3. which prevents the trial judges from imposing the death penalty. 14.html> (visited on 10/09/2010)
Diagnostic and Statistical Manual of Mental Disorders-Mental Retardation.imprisonment.. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty. imprisonment for a specified number of years". Available at
..htm> (visited on 10/09/2010) 77 Statute of the Special Court for Sierra Leone. regardless of the circumstances and the gravity of the crime.gov/law/public/saddam/sad-dam_capi.N. “Is The Death Penalty An Option In The Trial Of Saddam Hussein?” <http://www.umn. Jan. 78
2.edu/humanrts/icty/statute. 2002. to impose the death penalty."75 The Tribunal is not authorized.org/english/law/itr.html. it may be argued that the special court trying Saddam Hussein could not legally impose the death penalty where there is conviction for crimes against humanity. The American Association on Mental Retardation defines it as an IQ below 70.> (visited on 10/09/2010). limitations in adaptive behaviour (for example interpersonal communication skills) and evidence that all these became apparent before the age of eighteen. ed on 10/09/2010) 78 Issam Michael Saliba. Article 19 of the Statute of the Special Court for Sierra Leone provides that "the Trial Chamber shall impose upon a convicted person. 76 Statute of the International Criminal Tribunal for the Prose-cution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States. therefore. Doc.be carried out on persons who have become insane.< http://www1.loc.5 Barely concealed murder: The Death Penalty and the Mentally Retarded “The Death sentence shall not. 16. Aug.” . U. retentionist countries around the world execute people who had no idea they were committing a crime when they did what they did. Article 23 of the Statute of the International Criminal Tribunal for Rwanda. 79 Stigmatized and shunned by the society. S/25704 at 36. the mentally retarded frequently suffer
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.19. United Nations
The lack of authoritative information on mental retardation means that every year.
The situation in the United States is complex.
<http://emedicine.84 the Supreme Court rejected a petition seeking a stay on the execution of a person with schizophrenia by observing that “(we) assume that at the time of trial.given proper legal aid. 2010 83 The Death Penalty as applied in Texas: A Case Study of James Colburn..com/1989/07/15/us/2-electric-jolts-in-alabama-execution.medscape.html?pagewanted=1> Last accessed on 14th April. Available at <http://www. had an IQ of 56 and was impaired in his intellectual functions was never disclosed to the jury by the inefficient Court appointed lawyers who never bothered going into his school records. 2010 80 Ruth Luckasson. Yet the Court never considered it as reason enough to not execute him.. The New York Times.from a sense of devaluation. Coupled with the poverty they generally live in. Available at <http://www.. L. 82 In the case of James Colburn. he had been. So unfit was he that he was heavily sedated by anti psychotic drugs during his trial and spoke nary a word. at least in the reported cases. The term is vague however and leaves much to the discretion of the judges who apply it in the way they please. The Death Penalty and the Mentally Retarded. Crim. 2010 84 (1977) 1 SCC 180
.” This was after the High Court as well as an expert committee had unequivocally voiced their concerns over his mental health. In Amrit Bhushan Gupta v.org/uploads/images/mental%20illness/James%20colburn%20Case%20Study. While the Supreme Court has held in Ford v.83 the prosecution never disputed the fact that the defendant suffered from paranoid schizophrenia and hallucinations and had a history of committal to psychiatric clinics.tcadp.
In the case of Horace Dunkin.
The record in India is relatively brighter. 15th July 1989. it has left the definition of „insane‟ to the States. J. the fact that he was in special education. Wainwright. 276 (1994) 81 477 US 399 (1986) 82 2 Electric Jolts in Alabama Execution.nytimes.81 that executing the insane is ultra vires the Constitution. Section 84 of the Indian Penal Code provides insanity as a general defence.com/article/289117-overview> Last accessed on 13th April. 22 Am. it is the easiest thing for an ignorant society to condemn them to death.pdf> Last accessed on 14th April.and did not suffer from insanity.. This leads to the cases discussed here. Union of India and Ors. The members of the jury later wrote a letter to the Governor stating that they would have never held him guilty if they had been properly informed.
Five exceptions are provided under proviso to Section 300. 85 The burden of proving guilt lies on the prosecution and not on the accused. 1860: General exceptions are provided under Chapter-IV from Section 76 to 106. a sentence of death shall not be executed unless it is confirmed by the high court under section 366.. 1979. (1974) 4SC 267. 145 and 146 the provision for cross-examining the witness produced by the opposite party. See Article 14 (2) of International Convenient on civil and Political Rights. Kali Ram Vs. A life term without parole.
III Constitutional Validity of Capital Punishment
In India. State of Uttar Pradesh. before the doctor or the Court adjudges him fit to be released. 1973 examination of an accused to enable him personally to explain the circumstances appearing in the evidence against him under section 313. viz. the consequences cannot but be felt in a civilized society. Under Proviso to section 162 the statement given to police officer under section 161 of the code of criminal procedure. Right to life Under Article 21. murder by public servant exceeding the power given to him by law. Following safeguards are provided under the code of criminal procedure.Immunity from double prosecution under Article 20. Under Section 59 and 60 hearsay evidence is no evidence. Right Against Preventive Detention under Article 22. 87 Moreover. Nanavati Vs State of Maharashtra. which ensures the fulfilment of above principle. murder in a sudden fight in a heat of passion. much worse however is the wrongful conviction of an innocent person.”86 Starting from the investigation. Following Safeguards are provided under the constitution of India. or even decades. criminal trial is based on accusatorial system.M. exceeding private defence. committing no offence under the law. threat or promise is irrelevant. the accused is presumed to be innocent unless his guilt is proved beyond reasonable doubt. Right to prefer appeal to Supreme Court if acquittal is reversed into death sentence by the High Court under Article 134 (a). Under Section 25 confession to police officer is irrelevant. 1973) 2 SC 808. there are elaborate safeguards. If such confirmation proceedings are submitted the high court may examine itself or direct further inquiry or the taking of additional evidence Under
. Following Safeguards are provided under the Indian Penal Code. and accordingly.A miscarriage of justice is however not the only fear of the accused. Rights to Seek Pardon in case of death sentence under Article 72. for ironically enough. 1973 can only be used to contradict the witness and cannot be used for corroboration. AIR 1962 SC 605. Right to commute etc. they send him to mental hospital for „treatment‟ where he languishes for years. in
See K. during the trial and even after conviction of an accused. To quote Supreme Court judgment on the Presumption of Innocence: “It is true that wrongful acquittal are undesirable and shake the confidence of the people in the Judicial system. only the gravest form of culpable homicide is defined as murder under Section 299 and 300. Under Section 26 confession caused while in police custody is irrelevant. under section 165 judge is given ample power to ensure that fair trail take place and he can ask any question at any time. Under Section 137. Under Section 104 and 105 burden of proof always lies on the prosecution. In many cases where the High Court or the Supreme Court discharge the defendant under Section 84. murder with consent. 1872 .Under section 54 previous bad character on an accused is not relevant in criminal trail except in reply. grave and sudden provocation. 1950. State of Himachal Pradesh. 87 See Following safeguards are provided under the Indian Evidence Act. Under Section 24 confession caused by inducement. death sentence under Article 161. 86 See Dharam Das Vs.
the death sentence could be impose only if it is compelled by the state security.21." 92 In Menaka Gandhi Vs. it was observed that: A Balance Sheet of aggravating and mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option to award the death sentence is exercised. which might result in his acquittal.
Dr. The Supreme Court held that the phrase "Procedure established by law" meant that every law limiting personal liberty had to be "fair. So. motive.12 . “ The Law of Evidence”
(15 ed. 89 Jagmohan Singh Vs. as "No person shall be deprived of his right and personal liberty except according to procedure established by law. Gregg Vs. but there is a procedure for conviction of a person and that procedure has to be established by law itself. 90 Shanker Vs State of Tamil Naidu. Anti social or socially abhorrent nature of the crime. 1994. if the case is wholly based on circumstantial evidence. 94 The Apex Court articulated more limitations on the frequent use of death sentence by laying down the doctrine of "rarest of rare" cases. High court may confirm. Further. this discretion has to be applied rationally and judicially i. Avtar Singh "Principles of the Law of Evidence". p. AIR 1973 SC 947. Cr LJ. (1983) 3 SCC 470. and should point to the guilt of the accused and there should be no circumstances which may reasonably be considered consistent with. 93 To quote Supreme Court. 92 The discretion to inflict this extreme punishment depends upon the facts and circumstances surrounding the commission of each particular offence. AIR 1976 SC 2196. in India the capital punishment is constitutionally89 as well as legally valid90 because it is applied in accordance with the procedure established by law.)2001 p. 428 US 195 (1976). If there is any slightest doubt on the guilt of an accused. Gerogia.925 91 According to Article 21 of the Constitution (Protection of Life and Personal Liberty) reads. An accused can file appeal against his conviction under section 374 and 379. 91 Accordingly. Batuk Lal. 88 Moreover.criminal trial the degree of probability of guilt is very higher than civil law.(13 ed) 2002. this extreme punishment can be
section 367. public order and interest of the general public. annual the conviction or acquit the accused or pass any other sentence under section 368. AIR 1974 SC 797. only when the circumstances call for a deterrent punishment and not otherwise. the State can take action against a person by convicting him/her. State of Uttar Pradesh. The facts and circumstances of one case need not necessarily be similar or same as another case. Balwant Singh Vs State of Punjab. Accordingly. the court should look into the manner of the commission of crime. 93 Eidga Anmma Vs State of Andhra Pradesh. (197) 2 SCR 621. just and reasonable" in both its procedural and substantive provisions". As observed by the Supreme Court. it is not possible to lay down an exhaustive list of the cases in which death sentence can be awarded. the benefit of it has to be given to the accused. then all the circumstances brought out by the prosecution must evitable and exclusive.. AIR 1976 SC 230. Union of India. The Supreme Court held that before awarding death sentence. Amba Ram Vs State of Madhya Pradesh. magnitude of the crime. 94 In Macchi Singh Vs State of Punjab.
the statute of Nuremberg and Tokyo Tribunals provided mandatory death penalty. it is not arbitrarily conventions.
35 Report of the Law Commission of India (1967). if the judge awards death sentence he has to give special reasons. This section was amended." 98 In Bacchan Singh Vs State of Punjab. but an alternative one. Post-World War-II. 95 Moreover. 97 In fact. Shashi Nayar Vs. Union of India. 14. emergence of terrorism on a large scale in the country and the paramount need for maintaining of law and order in the country. State of Tamil Naidu. "the state shall not deny to any person equality before the law or the equal protection of law within the territory of India. 1898.
. Kishor Vs.e. (1999) 3 SCC 19. 1973. Article 5 of European convention of Human Rights (1949) provides death penalty in a time of war. special reason were to be recorded in writing. it is worth to mention that the 35th report of the Law Commission of India. 98 In this context. AIR 1980 SC 898. Om Prakash Vs. This landmark decision has made “life imprisonment as a rule and death sentence is an exception. clause (1) and (2) of the international convenient on civil and political rights.awarded rarely. AIR 1992 SC 395. international instrument is abolished death penalty under the optional protocol II of the ICCPR. second optional protocol to the international convention on civil and political rights (adopted by general assembly in 1989) Article 1 provides total abolition but Article 2 allows state party to retain it if they make reservation to that effect at the time of rectifying or acceding it. which means special facts and circumstances justifying the imposition of this extreme penalty. death sentence is not the only punishment 96 for murder.Article 6(2)of International Covenant of Civil and Political Rights(1978). AIR 1989 SC 396. Accordingly. 96 Under section 367(5) of the old code of criminal procedure. 1949. the apex court held that International law does not prohibit or abolish death penalty totally but made on option available to the member states to go for abolition in their countries. but rarely i. 1979 are same. which is the basis of retention of capital punishment on the statute book. so it is not unreasonable under Article 14 of the Constitution of India. judiciary in India. provides death penalty but with restrictions.L. It reads as: Having regard to the condition in India. as well the Courts in India are not awarding death sentence in all circumstances but the principle rarest of rare cases is strictly followed and by this way complying the international law. State of Delhi. to the disparity in the level of morality and education. 99
Bacchan Singh Vs State of Punjab. In fact. AIR 1980 SC Para 199. 97 According to Article 14 of the Constitution of India. is fulfilling its international obligations as this extreme penalty is not applied in every case. Protocol 6 to the European convention for the protection of Human rights and fundamental freedom (adopted by council of Europe in 1982) Article provides for abolition of death penalty in peace time but Article provides that the state party may retain it for crime in a war or threat of war. a person convicted for murder was to be sentenced to death as a normal rule and if a lesser punishment was intended to be imposed.J 756 (SC) Para 13. death sentence was the rule and life sentence was an exception. State of Haryana. 2000 Cr. to the variety of social upbringing of its inhabitants. only when the culpability assumes the proportion of extreme depravity. Article 21 of the constitution of India and Article 6. Now death sentence is an exception and life imprisonment as a rule. Further. protocol to the American Convention of Human rights (adopted by General assembly of the organisation of American States in 1990) Provides abolition of death penalty but allows state party to retain it if they make reservation to that effect at the time of rectifying or acceding it. Jumman Khan Vs. 1950. India cannot risk the abolition of capital punishment. According to new section 354 (3) of the Criminal Procedure Code. Article 4 of American Convention on Human Rights(1978).
seducing Naval personnel from allegiance. under section 302 for murder. that capital punishment is awarded not only in the rarest of rare cases but also on a wide variety of the cases. presumption of innocence. similarly death sentence is also provided under the arms act 1959. A close analysis of various decisions in which capital punishment was upheld on the basis of above doctrine would reveal that no uniform guidelines exist for its application. under Section 305 for Abetment of suicide of a minor or insane or intoxicated person. The Air force Act. In India. under section 307 for attempt to murder by a person under sentence of imprisonment of life. 1950. In such cases even the basic provisions of criminal law has been diluted. 68 for abetment of offences punishable with death. Its application is largely dependent on the subjective satisfaction of an individual judge. the doctrine of rarest of rare case is superfluous as it is vague and incomplete. under section 149 for abetting any death eligible offence. section 59 for arson. under Section 35 for shamefully abandoning a post. special courts also award death penalty summarily. In other words. 37 for mutiny. the above-mentioned doctrine only covers those offences. section 76 abetment of offences punishable with death. Section 37 for desertion a post or sleeping on watch. The judiciary has evolved its own jurisprudence in evaluating which cases are to be considered as "rare" and which are not on an inconvincible reasoning. Under Section 194 Giving or fabrication false evidence upon which an innocent person suffers death. section 39 for assisting enemy.
A significant number of legislative acts provides death sentence as an option. which are covered under the other acts. Section 36 for discouraging action. under section 66 for abetment of offences punishable with death which have been committed. Therefore. Under the Navy Act. section 49 for desertion to the enemy. The quantum of punishment varies according to the nature of a judge. 1860. under schedule castes and schedule tribes (Prevention of Atrocities Act). Under section 303 for murder by a life convict (now abolished).
. 1950. Moreover. subjective satisfaction of a Judge plays an active role in awarding "death" or "life". under Section 132 abetting mutiny actually committed. it is inapplicable on those offences. section 38 for spying for enemy. under section 37 for muting. under section 38 for desertion. section 44. shamefully abandoning a post. under section 121 waging war against the government of India. for example. section 43 for mutiny. under prevention of terrorism Act.
Under the Indian Penal Code. The Apex Court held that death penalty is awarded in the rarest of rare cases only but it is not further defined.100 Infact. how India is flouting its international obligations.IV Critical analysis of Indian Law in the verge of International Instrument
The careful analysis of the Indian law is revealing. which are punishable under Indian penal code. the following offences are punishable with death. section 56 for failing to defends ships etc. 38 for derision. under Section 35 for failing to prepare for action against the enemy. 2002 (now abolished). 1956. Section 34 of the Army Act. if hurt is caused.
1872. 1968. 1995 (5) SC 60. accessed on 10/09/2010. 106 See. 105 Conviction of an accused can be solely based on an uncorroborated testimony of an accomplice who himself is a participant in crime. 103 Various international and regional instruments say that "Death sentence shall be applied only for more serious crime and it shall not be extended to those crimes to which it does not presently apply.confession. who ever uses any prohibited arms which resulted in death of any person. 101 In fact. Article 11of Arab charter on Human Rights.24 December 1996. Resolution 1989/64.R. as the court has no other option to impose any other sentence.eng.104 The mandatory nature of the capital punishment offence is the cannon of criminal jurisprudence as well as the principle of natural justice. 103 In many acts capital punishment is mandatory. 107 Dhananjay Chatterjee Vs State of West Bengal (1994) 2 SCC 220. State Vs. AIR 1988 SC 1183.un special rapporteur on extra judicial summary or arbitrary execution. the court has applied this extreme punishment for punishing political murders.e/cn. Article 14 of I.. 1979. General Assembly Resolution 2393 (XXII) of 26 Nov. See. Under the Schedule Casts and Schedule Tribes (Prevention of Atrocities Act) 1989. Article 4(2) of American convention on Human Rights. the court
International community on various occasions urged to follow strictly "procedural safeguards" for these serving death sentences. the government of India is trying to widening its scope to less serious offences102 which does not even come within the frame work of rarest cases and is against international humanitarian law as well. 108 See. Article 2 of protocol to the American Convention on Human Rights.C. Similarly death sentence is also mandatory in the Prevention of Terrorism Act (2002)(now abolished) for causing death by using bombs etc 105 Kehar Singh Vs Delhi Administration. Audi Alteram Partem. but it has proved otherwise. 106 The court can award death sentence purely on circumstantial evidence 107 or even on plead guilty of an accused. 104 Under the Arms Act 1959. Nalini. 102 See http//web. adopted on 24th May 1989 and Resolution 1996/ 15 adopted on 23 July. Article 2 of protocol to the convention oF the protection of human rights and fundamental freedom.C. 1987. 1994.if any person either directly or indirectly abets the commission of sati shall be punished with death. Therefore. See Article 4(4) of American Convention on Human Rights. section 229.
. 1989. AIR 1988 SC 1183. If a person who has been convicted in an offence relating to narcotic drugs and he subsequently do or attempt to the offence again.amnesty. But instead of deciding this crucial issue the legislature has left this task on the sweet will of the judiciary. 1996 by the UNECOSOC. Once it is proved that the accused has committed the crime. under Article 10 of Arab Charter on Human rights. burden of proof etc.P. Article 2 of Second Optional Protocol to the ICCPR. It is said that “Death penalty shall not to be applied for political offences or economic crimes”. It is one of the essential functions of the legislature that decide the category of cases in which the capital punishment could be imposed. Kehar Singh Vs Delhi Administration.org/report/2006/ind-summary.whoever fabricates false evidence which resulted in conviction of an innocent member of a schedule caste etc. Section 31A of the Narcotic Drugs and Psychotropic Substance Act 1985 (now abolished). the court is bound to award death sentence only and nothing more or nothing less than that. It totally excludes judicial discretion. 241 and 252 of the Code of Criminal Procedure. State Vs. 1984.4/1997/60. Under the commission of Sati (prevention) Act. 1994. The United Nation Economic and Social Council (ECOSOC) adopted safeguards guarantying protection of the rights of those facing the death penalty. Nalini. 108
Though legislation on a specific field is a matter of law and not of prudence. Article 8 of the American Convection of Human Rights. Section 114 of Indian Evidence Act. UN document no." See. 1995 (5) SC 60. Moreover. in many cases. Article 7 of African Charter on Human and People's Rights. 1973.
the funds provided to them by the state government is very insufficient.
. 1984 CrLJ 1909 (SC). 112 S. As it was rightly observed by J.has a very wide discretion in the matter of fixing the quantum of punishment. 110 Mostly free legal aid is provided to an indigent accused by inexperienced lawyers. It includes absence of arbitrary discrimination in the administration of law. They do not afford to engage effluent lawyers for their defence. Morgen Vs Attorney General of Jamacia (1993) 4 ALL E. Vatheeswaran Vs State. Union of India. 1972 CrLJ 487. SCC 627.112 In some cases even the delay of more than two years in the execution of death sentence was considered so grave that it
Article 39A of the Constitution of India. According to the concept of equality. State of Maharashtra Vs Mangalya. State of Gujrat. Hussainara Khatoon Vs. Madhu Mehta Vs. Khemchand Vs. viz Rs. the trial system in India violates the concept of equality. 1972 CrLJ 570 SC. 300 per hearing. unguided discretion to award either of two punishments violated legal equality. 1986. 111 State of West Bengal Vs. Bhagwati also said that in fact. yet it has proved otherwise particularly under the existing conditions in India. 769. one of them may get death and the other may get only life sentence or pardon or acquittal. Javed Ahmed Vs State. Triveniben Vs. 1983 CrLJ 481 (SC) Pratt Vs. The Legal Service Authority Act. all litigants who are similarly situated can avail themselves of the same procedural rights. State. while an experienced prosecutor conducts the prosecution. A significant number of accused are illiterate and poor. These lawyers lack capability to deal with complex cases like murders. So. Khatri II Vs State of Bihar (181). AIR 1989 SC 2299. equal treatment in similar circumstances both in privileges conferred and liabilities imposed by law. Moreover a mistake committed by them at the trial stage could be very rarely corrected at the appellate stage. every body equal before law and has equal protection of law. that though the trial system in India is based on the principle of legal equality before the court. the legislature has not provided any guidelines within which this extreme discretion could be applied. Samman Das. 1989 CrLJ 870. In short. Therefore.P. Moreover.111 But the application of death penalty nullifies this concept. Vs. (1980) ISCC98105. The guarantee of equal protection applies against the substantive as well as procedural law.N. State of U. 109 yet this right is of no value if competent lawyers are not selected to defend him. Anwar Ali. Two persons who are found guilty of murder may be treated differently. In such a situation the life of an accused would be jeopardized. Though. they do not have the knowledge of law and professional skills to defend themselves before the court. There is no uniformity in the decision of Supreme Court. Moreover.R. the accused has right to free legal aid at the state expenses. Bhagwati. Moreover. they do not pay head to the case. Section 303 and 304 of the Code of Criminal Procedure. 110
Justice P. 1990 SCALE 1. State of Bihar. 1973. Who are new entrants at bar as dealing with complex case would give them exposure before the court. 1952 SC P289.
to correct judicial errors for no system of judicial administration can be free from imperfection. Further. Introduction to the Constitution of India (18 ed. State. this sacrosanct purpose itself is of no avail to the accused. Provided that the president may require the council of minister to consider such advice. act in accordance with such advice. Further.116 If he remits the mercy petition to the government for reconsideration and the government confirms the death penalty. See. the decision of the President on the
Dhananjay Chatterjee Vs. As quick sentencing and conclusion of trial within a limited period is one of the first requirements of criminal justice. The object of giving pardoning power to the President is that “. p. the President has no power or other option but to confirm the sentence.. as he is bound by the recommendation of government. and the president shall act in accordance with such advice tendered after such reconsideration. So. either generally or otherwise. 116 Article 74 (1) of the Constitution (after 44th amendment.” There fore. 1973 CL 971 SC. similarly governor has power to commute death sentence under Article 161 of the constitution. But in many other cases the apex court was not obliged to commute death sentence into life even though there was delay of more than fourteen years in execution of death sentence.115
Ironically. Manohar herum Shah Vs State. harsh and disproportionate to the crime . the only authority that can give pardon114 to an accused in case of confirmation of death sentence by the Supreme Court is the President of India.
Durga Das Basu. though speedy trial in criminal cases is not a fundamental right of an accused but it is one of the important attribute of a criminal jurisprudence.resulted in commutation of death sentence into life imprisonment..180 . 113 The Supreme Court itself said that “between the funeral fire and mental worry. 1997). In India.. The fact is that the President has to act on the advice of the government in power."
. CrLJ 803 SC 114 Article 72 of the Constitution of India. State of West Beganl (1994) 2 SCC 220 at 239 (even delay of fourteen years in execution of death sentence was not condoned). Sher Singh Vs. 1973. He is the only person who has the exclusive authority to save the life of a convicted prisoner. it can be submitted that too much delay and uncertainty in applying criminal law would render even the best penal law as useless. 1978) provides "There shall be a council of minister at the head to aid and advice the president who shall in exercise of his function. every effort should be made to avoid delay in not only during investigation or trial but also in the disposal of mercy petition before the president. it is the latter which is the most divesting. for funeral fire burns only the dead body while mental worry burns the living one. 1950. It is an attribute of sovereignty to release a convict from a sentence which is mistaken. provides pardoning power of President in case of death sentence.
It is the surety. adopted on 24th May 1989 by UN. It is submitted that brutality or severity of punishment hardly deters.
.R. Resolution 1989/ 64. Article 10 of Arab Charter on Human Rights. Death sentence leaves no scope for correction if there is even a slightest mistake in the identity of the accused.230. Safeguard 7 of the Safeguards guaranteeing protection of the Rights of those facing death penalty adopted by UN (ECOSOC) 1984.
S. Further. p. There had been no relation between the crime rate and the capital punishment. ECOSOC. There is no convincing evidence to show that the crime rate has increased in those countries. It is just mockery of justice and hence submitted that there should be proper demarcation of the power of executive. being an irreversible punishment there is every chance of mistake in its application. 118 Keshavanand Bharti Vs. for Pardoning rights of an accused under Article 6(4) of ICCPR. Judiciary cannot justify its in human act by mere saying that capital punishment is “according to the procedure establish by law” and it is awarded “to preserve the public confidence in the judicial system”. malafide or discriminatory. 119 Roger Hood "The Death Penalty" A worldwide perspective (Oxford. which have abolished capital sentence.1973 SC 1461. It is submitted that when the killing of a human being by another human being is a homicide and therefore punishable than the killing of a condemned prisoner through the instrumentality of State is also homicide which should be equally punishable. Para 73 held that court can interfere only when the President's decision is totally irrational. it is a State who prosecutes against the accused on behalf of the society and at the same time it is the State which decides that whether mercy petition address to the President should be allowed or not.Union of India (1994) 3 SCC1. we can say capital punishment is morally wrong. A. arbitrary. State of Kerala. 118 and which should be maintained strictly. Executive should not interfere within the frame work of judiciary as separation of power is the “basic feature of the Constitution. 1994. Death penalty is not effective deterrent. application of this brutal punishment on deterrent theory is baseless.119 Moreover." See. Bommai Vs.
Further. third edition. which deters. effectiveness and uniformity of punishment.
In a murder trial.mercy petition is subjected to limited judicial review. 2002). it is not applied uniformly. 117 It is submitted that the President should have an unfettered power of pardon in case of mercy petition he should be required to decide the petition within a limited time without any interference by the executive.
and therefore that it violates the right to life of a criminal if she or he is executed. Whereas Article 5 of Universal Declaration of Human Rights. because every criminal justice system is fallible. U. Union of India. 1948 and Article 7 of ICCPR. Death sentence has been criticized on humanitarian ground as well. 2002. 1983 CrLJ 1602 (SC) and In Shashi Nayar Vs. which can be cured not only by brutal punishment but by sympathetic treatment on the humanitarian ground”. Critics often hold that. AIR 1992 SC 395.An American History. which has shocked the consciousness of society. a human being does not cease to be a human being even if he has committed a monstrous act. "No one shall be subjected to torture or to cruel. because life is an unalienable right. ARGUMENTS AGAINST DEATH PENALTY
The death penalty is often opposed on the grounds that. (1989) 11 EHRR 439. It is the circumstances. It is thus highly probable that people are convicted of murder when they should really have only been convicted of manslaughter. It then comes down to the skill of the prosecution and defense lawyers as to whether there will be a conviction for murder or for manslaughter. Crime should be treated as “Mental disorder. in human. State. since this is purely murder by the State. no body is born criminal. 1973. 121 Stuart Banner. Death penalty nullifies such purpose of reformation and rehabilitation. 292-293
. reformation and rehabilitation should be the core purpose of the punishment. Often the only people who know what really happened are the accused and the deceased.K. degrading treatment" meant that execution shall be carved out in such a way to cause the least possible physical and mental sufferings. no body would realize the brutality as his behaviour once he is gone from the world." Many national constitutions and international treaties guarantee the right to life. in human or degrading method". which may turn a human being into a deadened criminal. Provides. The apex court held that the provision "To be hanged till death" Under Section 354(5) of the code of criminal procedure. the right to life demands that a life only be taken in exceptional circumstances. In fact. the criminal cannot forfeit the right by committing a crime. Therefore. 1973. innocent people will inevitably be executed by mistake.
V. New York.121
The death penalty is also most commonly argued to be a violation of the right to life or of the "sanctity of life. See Soering Vs. There is a virtual certainty that genuinely innocent people will be executed and that there is no possible way of compensating them for this miscarriage of justice. Sweet and Maxwell. such as in self-defence or as an act of war. 120 Accordingly. is not "cruel. The Death Penalty .
In Deena Vs. p. and the death penalty is both irreversible and more severe than lesser punishments.Moreover.
which inflicts suffering for a short period. Volume 2001. 123 What mode of punishment achieves what result on the psyche of the offender. punishment upon a person that ends his/her life. Clarendon Press. some methods perhaps cause less pain than others. and what impact (if any deterrent impact at all) it has on the society at large.
5. most convicts undergo the most harrowing time. These are practical dimensions of the criminal justice system that will differ from society to society. Oxford. and change over time. that life imprisonment is far more debilitating for the psyche of the offender. argues that the death penalty has a brutalising or coarsening effect either upon society or those officials and jurors involved in a criminal justice system which imposes it. which commits itself to the ethos of human rights.122
There is no such thing as a humane method of putting a person to death. but be in no doubt that being executed is a terrifying and gruesome ordeal for the criminal. Bright. than death penalty. 1(1) 123 Roger Hood. Wisconsin Law Review. also known as the brutalization hypothesis. The psychological agony inflicted on the convict and his near and dear ones is unavoidable and inhuman. or due to the societal disregard for the 'sanctity of life'.
The specific question of legal ethics that I wish to delve into is simply whether it is in consonance with the role of the modern democratic state.However gruesome the act of offence may be. An extension of this argument is that the brutalising effect of the death penalty may even be responsible for increasing the number of murders in jurisdictions in which it is practiced. The brutalising effect. 1996
. It is usually argued that this is because it sends out a message that it is acceptable to kill in some circumstances. What is also often overlooked is the extreme mental torture that the criminal suffers in the time leading up to the execution. The Death Penalty: A Worldwide Perspective. to inflict lawfully. “Will the Death Penalty Remain Alive in the Twenty-first Century?”. awaiting the outcome of numerous appeals and their chances of escaping execution are better if they are wealthy or powerful.1 Death penalty and human rights
Stephen B. It may be variously argued that the prison system is such that life imprisonment rarely achieves rehabilitation. Every form of execution causes the prisoner suffering. is a question to be considered by those resourceful in social analysis.
When the United Nations General Assembly considered a resolution in 1994 to restrict the death penalty and encourage moratorium on executions.1 Defining death penalty in terms of human rights The debate about the death penalty does not usually employ the terminology of human rights. Dieter.> (visited on 10/09/2010) 126 United Nations High Commission for Human Rights Resolution. Mexico and South Africa have resisted extraditing persons to countries like the United States unless there are assurances that the death penalty will not be sought.pdf. The European Union has made the abolition of the death penalty a precondition for entry into the Union. the U.S. The Death Penalty: A Worldwide Perspective.< http://www. 125
However. Many European countries. Nevertheless. 1997). Switzerland abolished death penalty because it constituted “a flagrant violation of the right to life and dignity…”124
Defining the death penalty as a human rights issue is a critical first step.5.N High Commission for Human Rights approved a resolution stating that the “abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights. international law and an analysis based on human rights are useful means to address the death penalty issue.1. for an increasing number of countries the death penalty is a critical human rights issue. along with Canada. civilised society…” Similarly.org/Oxfordpaper. the use of the death penalty intersects with international law and is challenged by it. Hence. In the end. 74 countries abstained from voting on the resolution and it failed. 1996 Richard C. E/CN.4/1997/12 (April 3. Oxford. The reasons why countries have abolished the death penalty in increasing numbers vary. Clarendon Press. “The Death Penalty and Human Rights: U. resulting in halting of executions in many eastern European countries which have applied for membership
See. leading eventually to abolition.
Challenging the death penalty is not seen solely as an internal matter among nations. For some nations.
This resolution was strengthened in
subsequent resolutions by a call for a restriction of offences for which the death penalty can be imposed and for a moratorium on all executions. Singapore asserted that “capital punishment is not a human rights issue”.deathpenaltyinfo. Roger Hood. but one resist by countries that aggres sively use the death penalty. In 1997. Death Penalty and International Law”. it was a broader understanding of human rights (Spain abandoned the last vestiges of the death penalty in 1995 stating that “…the death penalty has no place in the general penal system of an advanced.
the UDHR did establish important principles and values which were later elaborated in legally binding UN treaties. No one shall be arbitrarily deprived of his life.2 International norms regarding death penalty The right to life is not as inviolable as it might seem at first sight. 4: This main international treaty on civil and political rights.”
The ICCPR specifically allows for the implementation of the death penalty and incarceration as a part of a criminal justice system. The use of the death penalty is one such example.1.
(2) International Covenant on Civil and Political Rights (1966). There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. This right shall be protected by law. also known as ICCPR. Article 3 of this Declaration upholds the right to life. Oxford. Schabas. Hereunder are enlisted few of the important international instruments which enshrine this right:
(1) Universal declaration of human rights (1948): The Universal Declaration of Human Rights (UDHR) is a resolution of the UN General Assembly and was adopted in 1948. liberty and security of the person. sentence of death may be imposed only for the most
William A. OUP. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use. However. is very specific about the right to life and the death penalty: Article 6 reads as follows: “Every human being has the inherent right to life. 127 Critics of the death penalty commonly argue that the death penalty specifically and explicitly violates the right to life clause stated in most modern constitutions and human right treaties. it is not itself formally legally binding despite common assumptions to the contrary. 1997
. Article 6 clause 2 provides that “…In countries which have not abolished the death penalty."] There is no mention either that death penalty make an exception to this article or that the article make death penalty unacceptable.[ The article 3 says in full: "Everyone has the right to life. a number of its provisions have become part of customary international law. liberty and security of person. Article 6. As a resolution. The Abolition of the Death Penalty in International Law. Moreover.5.
(3) International treaties providing for abolition of the death penalty: The community of nations has adopted four international treaties providing for the abolition of the death penalty. pardon or commutation of the sentence of death may be granted in all cases.” Article 4 of the ICCPR further asserts that states are not able to derogate from the article 6 even in times of a public emergency. adopted by the General Assembly of the Organization of American States in 1990. One is of worldwide scope. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Any state which is a party to the International Covenant on Civil and Political Rights can become a party to the Protocol. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. States are bound under international law to respect the provisions of treaties to which they are parties. Clause 4 of the same Article also states that “. Signature indicates an intention to become a party at a later date through ratification. It provides for the total abolition of the death penalty but allows states parties to retain the death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol..serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. (A total of 60 countries have ratified this Protocol till date). adopted by the UN General Assembly in 1989. and to do nothing to defeat the object and purpose of treaties which they have signed
(4) Second optional protocol to the international covenant on civil and political rights: The Second Optional Protocol to the International Covenant on Civil and Political Rights.
(5) Protocol to the American Convention on Human Rights: The Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Following are short descriptions of the four treaties States may become parties to international treaties either by acceding to them or by ratifying them. the other three are regional. Amnesty. aiming at the abolition of the death penalty. provides for the total abolition of the death penalty but allows states parties to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding to the
. is of worldwide scope..
13 to the European convention on human rights Protocol No. (So far. Any state party to the European Convention on Human Rights can become a party to the Protocol. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) concerning the abolition of the death penalty in all circumstances. 37 Countries have ratified it). Any state party to the European Convention on Human Rights can become a party to the Protocol. (Currently a total of 8 States have ratified this Protocol). states parties may retain the death penalty for crimes "in time of war or of imminent threat of war". provides for the abolition of the death penalty in peacetime. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") concerning the abolition of the death penalty. Any state party to the American Convention on Human Rights can become a party to the Protocol.
. adopted by the Council of Europe in 2002. 6 to the European convention on human rights: Protocol No. adopted by the Council of Europe in 1982.Protocol. provides for the abolition of the death penalty in all circumstances. (45 Countries have ratified this Protocol)
(7) Protocol No. including time of war or of imminent threat of war.
(6) Protocol No.
We would hardly find a rich or affluent person going to the gallows. 1949. Condemning them to a lifetime in „mental hospitals‟ where they live in inhuman conditions is hardly the kind of benefit Section 84 of the IPC envisages. The Constituent Assembly Debates. some remedial measures may be taken.html> Last accessed on April 14th. It has been pithily summed up by Justice Bhagwati in his dissenting judgment in the Bachan Singh case as “it is largely the poor and the downtrodden who are the victims of this extreme penalty. It is perhaps not a surprise that the countries that make the maximum use of the death penalty have the worst human rights record in the world. The plight of the mentally disabled deserves focus as well. The latter is of course unthinkable as it goes against the prevailing abolitionist trend in the world. B. 3rd June. Saudi Arabia and Iran. 8. Dr. India‟s record is far from exemplary. life imprisonment. As detailed earlier. State of UP is one of such. The presence of the US as the fourth member of the quartet says a lot about its adherence to the principle of “Equal Justice before the Law” embossed on its Supreme Court. it being that the current system of its administration is far from satisfactory.R Ambedkar had expressed similar sentiments in the Constituent Assembly debates. Vol. Instead finding them guilty of culpable homicide not amounting to murder and sentencing them as such (owing to the absence of a specific mens rea) seems a much better option. The precedent set by Mulla v.in/ls/debates/vol8p15b. Either we abolish the death penalty or its alternative.
(1982) 3 SCC 25.VI. 2010 XXXIX
. These include China. Accessible at
<http://parliamentofindia.”128 The father of the Indian Constitution. Conclusion and Suggestions There is one very evident conclusion that can be reached through a study of the death penalty v Life Imprisonment. Two solutions therefore present themselves. arbitrariness and bias pervade every stage of trial in capital cases.
While it has adopted a midway approach between abolition and use of the death penalty.nic. 129
Pending the necessary abolition of this barbaric punishment.
but is sadly missing. Tremblay. gender. “Civilization has progressed too far to tolerate the primitive law of a tooth for a tooth and eye for an eye. Representing a poor person whose life is at stake is looked upon as a sacrifice on the lawyer‟s part as the indigent cannot afford to pay him astronomical sums. The capital sentence in reality punishes the dependant. As such they need competent lawyers who can help them in overcoming these adversities. They face a variety of handicaps-race.) HEIGHTS OF JUSTICE 114 (2006) 131 Nartoem Singh Vs. it needed a sharp revive on the basis of the above said critiques. is a spirit of rebellious lawyering that strives to empower the disadvantaged. 131
The criminal trial in India is far from satisfactory regarding the death sentence and therefore. Rebellious Lawyering in LAWRENCE A. at least in practice.130 Merely proceeding on a client to client basis is not enough. Naturally. CUNNINGHAM (ed. Today the accent in penology is more on the reformation rather than retribution or deterrence. class and mental health. To be condemned prisoner death means liberation from lifelong sufferings. kith and kin of a dead convict.
. who can educate the public about fair process and who believe in the need for legal representation of the most vile „criminals‟. The entire community affected by the biased manner in which death penalty is administered needs to be mobilized. for no fault of theirs. What is needed.
In conclusion we can quote Justice Bhagwati on reformative aspect of punishment. AIR 1978 SC 1542. but ignored one. The various developments in the international law prompted a new wave of constitutional jurisprudence in death
Unfortunately. we have case after case where proper legal aid was not made available to these unfortunate people on monetary grounds. To top it all they have a large section of the society baying for their blood in the name of crime control.The role of the legal profession in this matter is an important. The people on trial in capital cases have more at stake than any other person brought before the law. He said. this abominable sentence should be abolished by law for life is noble. State of Punjab. As we move towards twenty first century. it is impossible for the judge (or jury) to remain immune to such public pressure. continuing capital sentence is irrational. This collective belief can then be used to develop a countervailing power that may take on the established socio-legal structure.
Further. 2006. see general comments on article 6 of ICCPR adopted at its 378
meeting(16 session)on 22 july. the great law giver. 135 Institute of Hindu Law (translated by Haughton. Queen University Belfast. 132 In fact. 12 October 1999. Moreover. resolution 1044(1994) adopted on 4 October 1994 by parliamentary Assembly of Europe. 133 However. on the object of punishment as under “Punishment governs and preserves life”.I.134 To quote Manu.penalty. while commenting upon the unhappy aspect of our penal system in Shivaji vs.
In an international conference on death penalty in Stockholm.(UK). para 18. international laws do provide abolition of this extreme penalty totally and globally. Article 6(6) of ICCPR. but it can certainly “restrict the number of offences on which death penalty may be imposed” 137 or “establish a moratorium on execution” with a sole object of deleting this extreme penalty from the statute book. viz. 137 See resolution 32/61 adopted on 8 December 1997 by General assembly. in1977.1978. See http://www.ca/forth record 2002/death chr html. 133 Protocol 13 of the European Convention of Human Rights (adopted in 2002) is the first legal document which prescribe for the total abolition of death penalty in all circumstances including war. Further there are 13 judges per million people. Press conference at the death penalty information center. Article 77 of International Criminal Court.1982 by Human rights committee set up under ICCPR. no doubt the judiciary cannot question the wisdom of executive in retaining to the death penalty on the statute book. Article 24 of International Criminal Tribunal for Rwanda do not provide death penalty even for the most heinous
crime. Genocide. Over 9000 in the Supreme
court (Hindustan Times 2 December 2006 page 10). State of Maharashtra (1973)CRLJ 1753(SC). just 16 countries had abolished death sentence. N. it is submitted that decision of international community should have binding force on the entire world.
. 35.6 lakhs pending cases in high courts. 135 It is submitted that life of persons in the society can be very well preserved by sending the offenders to jail rather than taking their lives mercilessly.hri. UN High Commissioner for Human Rights.p 189. 136 “Even the terrorists have the right to life as they are human beings” as rightly said by Jean Allian. Chapter 7. the punitive strategy of penal law in India does not reflect the modern tendency of reformative treatment. 134 As observed by Krishna Iyer J. but today approximately 121countries has abolished it in law or practice. G C 1835).. Article24 of International Criminal Tribunal for Former Yugoslavia (1993). Sweden. class lectures on human rights law (part 1). 3 Crores pending cases in the district and subordinate courts.
1956. 1950 The Air force Act. Rome Statute of the International Criminal Court Second Optional Protocol to the International Covenant on Civil and Political Rights. 1994. Protocol to the American Convention on Human Rights. 1860.
. Treaties and Statutes Arab Charter on Human rights. 6 to the European Convention on Human Rights. 1950. Statute of the Special Court for Sierra Leone The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia. The Navy Act. Protocol No. Constitution of India Schedule Casts and Schedule Tribes (Prevention of Atrocities Act) 1989 Indian Penal Code. Law Commission of India: Thirty-Fifth Report: 35 (September-1967) The United Nation Economic and Social Council (ECOSOC) International Covenant on Civil and Political Rights. Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States.VII B
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