"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Tuesday, September 8, 2015

India: Capital Punishment Violates Human Rights and the Constitution

It's largely due to the anxiety among people to know more about an incident full of bizarre developments - like the Sheena Bora murder case - which gets the eye balls. It is natural for a human being to yearn for being the first to know. Though the emphasis given by media on certain points which it considers vital for making a news interesting or for its one-upmanship, it is for the people to form their own opinion.

The possibility of a consensus among millions of information-starved-people will always be bleak. How much is too much, will also remain a dilemma. So is the legitimacy of other punitive actions in a variety of heinous crimes that attract the extreme penalty of death or imprisonment. Or for that matter, the necessity of putting up a person for trial in a case on the basis of fractured "public opinion".

A similar argument was placed by the Union government in defence of retaining death sentence on statute. It told the Law Commission that has, however, in a split opinion recommended abolition of the capital sentence except in terror cases, that "public opinion demands it".

Capital Punishment Debate

Undoubtedly, a government could plead in the name of "public opinion" to further its own agenda on an important issue. The retention or abolition of the capital sentence had taken the centre stage of media pages when the sole death convict in 1983 Mumbai serial blasts case Yakub Abdul Razak Memon was trying hard to seek the indulgence of Supreme Court for commutation of the extreme penalty into life imprisonment. He lost the last remedy after about 3-hour long mid-night hearing by a bench of 3 Supreme Court judges on July 30, 2015. He was hanged at 7 AM.

It wasn't for the 1st time that the sentence for death to a terror convict had taken a political turn. Similar division of public opinion was seen when the Parliament attack convict Afzal Guru was hanged. But the sentence for death is also a hot cake for intense debates in view of the fact that it has been banned in at least 140 countries because it's inhuman and archaic.

A decision to abolish the death sentence could be taken either by keeping aside the public opinion or the sentence could be handed out by a judge after taking into account the views of public. Perhaps, both the propositions are far-fetched in the prevailing dispensation system.

Law Commission's Report

"One could argue that public opinion is indeed a factor to be considered while making important decisions which affect the population at large. However, it is not necessary for the government to follow public opinion on every issue", the Law Commission chairman A P Shah said in a lengthy report which was submitted to Union Law Minister D V Sadanand Gowda on August 31,2015.

Disapproving of the government's stand on death sentence, the multi-member commission said, "Indeed, the Government has a duty to drive public opinion towards options which support fairness, dignity and justice, which are constitutionally enshrined ideals". There are undisputed precedents where laws, policies and practices that were inconsistent with human right standards were supported by a majority of the people, but were proven wrong. Eventually they were abolished or banned. "Leaders must show the way how deeply incompatible the death penalty is with human dignity", the Commission counsels the government.

"Very few of the current abolitionist countries would have been able to ever abolish the death penalty had they waited for public opinion to change on the issue. Moreover, once the death penalty was abolished, the legal framework motivated the public opinion to change radically on the issue, and now the death penalty is thought of as unthinkable", it adds.

Doing Away with Archaic Practices

Take the case of India where certain laws relating to social issues such as Sati, dowry, untouchability, and child marriage underwent changes for the betterment of society. All these medieval practices have been banned now. Needless to say the government has the power to lead public opinion even against deeply entrenched cultural norms.

Thus, it is an obligation to act accordingly when faced with issues concerning human dignity and equality. The existence of death sentence in India is abhorrent and an anathema to human rights and Article 21 of the Constitution that guarantees right to life with dignity. Fundamental rights don't cease to exist at the gate of prison.

It may be pointed out that a court does not have the means to rigorously examine public opinion in a given matter. A cohesive, coherent and consistent public opinion remains a "fiction" for the dispensation machinery. The Commission, therefore, feels that the opinion of members of the public can be "capricious, and dependent upon the (mis) information that the 'public' is provided not only of the facts of an individual case, but of the criminal justice process itself".

In such a situation, capital sentencing becomes "a spectacle in media". If awarding of sentence is in consonance with the wishes of the majority, the media trial also becomes a possibility, something that's impossible in a country guided by the rule of law and the Constitution. In such situations, invoking public opinion would defeat the entire framework enumerated in some judgements and the Constitution.

Source: thequint.com, Rakeksh Bhatnagar, Sept. 6, 2015. The writer is a Delhi-based senior journalist.

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