Lawmakers are eager to appear resolute in the fight against crime, but seem to forget that certainty of punishment, not severity, is the real deterrent

“An eye for an eye makes the whole world blind,” said Mahatma Gandhi.

The death penalty is unjust and inhuman. Its continued use is a stain on a society built on humanitarian values, and it should be abolished immediately.

Many think that there could be nothing wrong with the death penalty as the Indian Constitution allows for capital punishment, which means that the founding fathers of this country must have also fully approved of it. In reality, several members of the Constituent Assembly were firmly opposed to the death penalty.

The architect of the Constitution, Babasaheb Ambedkar, admitted in the Constituent Assembly that people may not follow non-violence in practice but “they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can.” With this in mind, he said, “the proper thing for this country to do is to abolish the death sentence altogether.”

On June 3, 1949, Professor Shibbanlal Saxena, a freedom fighter who had been on death row for his involvement in the Quit India Movement, spoke in the Constituent Assembly of how he had seen innocent people being hanged for murder during his days in prison. Proposing the abolition of the death penalty, he said that the avenue of appealing to the Supreme Court “will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves” of it.

Miscarriage of justice is, in fact, one of the biggest concerns about the death penalty. Is it possible that someone could be wrongly hanged in 21st century India? The answer, unfortunately, is yes. Studies conducted by Amnesty International and the People’s Union for Civil Liberties have shown that the process of deciding who should be on death row is arbitrary and biased. The Supreme Court has itself admitted on several occasions that there is confusion and contradiction in the application of the death penalty.

Instances of innocence

Last year, 14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India.”

Some argue that the death penalty is the only way to deter heinous crime, especially violence against women and children. But a comprehensive study done last year in the United States found that there is no credible evidence that the death penalty has any deterrent effect on crime.

The “Innocence Project” in the United States [a national litigation and public policy organisation dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system] has found, on the other hand, several cases where innocent people were given the death sentence. One such case is that of Cameron Todd Willingham, who was executed in 2004 for the deaths of his three young daughters. In 2009, reinvestigation of the case raised serious doubts in the appreciation of forensic evidence in the case and the judge concluded that Willingham was wrongfully convicted. Another case is that of Carlos DeLuna who was executed in 1989 for the murder of a young woman some years before. In 2004, a study by Columbia Law School students brought to light the wrongful conviction of Carlos DeLuna, which turned out to be a case of mistaken identity of the actual perpetrator of the murder. Lawmakers in India find it convenient to hold up the death penalty as a symbol of their resolve to tackle crime, and choose to ignore more difficult but more effective solutions like social education and police or judicial reform. The certainty of punishment, not severity, is the real deterrent.

Rajiv Gandhi case

The death penalty is little more than judicially sanctioned murder. Justice K.T. Thomas, who headed the three member bench in the Rajiv Gandhi assassination case, has said that executing Perarivalan, Murugan and Santhan, convicted and sentenced to death in the case, would amount to punishing them twice for the same offence, as they had already spent 22 years in jail, the equivalent of life imprisonment.

In recent months, the Government of India has shown an alarming tendency to implement the death penalty. It is a fallacy to think that one killing can be avenged with another. For, capital punishment is merely revenge masquerading as justice. When the government is trying to create a just society where there is less violence and murder, it cannot be allowed to commit the same crime against its citizens in the name of justice.

The DMK president, Kalaignar Karunanidhi, reiterated the party’s stand last month when he called upon the Government of India to commute the death sentences of the 16 men, including seven from Tamil Nadu, who are on death row. The DMK president had made similar pleas to the Centre in August 2011 and October 2006. This has been the party’s consistent position against this inhumane practice.

Rest of the world

The world is moving away from using the death penalty. The European Union has made “abolition of death penalty” a prerequisite for membership. The 65th United Nations General Assembly voted in December 2010, for the third time, in favour of abolishing the death penalty and called for a global moratorium on executions. Amnesty International reports that 140 countries — more than two-thirds of the world — do not use the death penalty any more. India needs to recognise this global trend, and act in step with it.

(Kanimozhi is a Member of Parliament.)

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