The latest execution of a death penalty by the state has revived public pressure against death penalty. The argument against death penalty could be stated in very few words.
The judiciary is manned by human beings. Judges are neither super men nor special beings insulated totally from environmental influence over the years of their education, training and practice. Prejudice and predilection accumulated in the course of their upbringing and background linger on as it does in the case of any other human being.
They are therefore not infallible. The process of inflicting death penalty is not infallible. The mindset of the judge who dispenses the punishment will have a pivotal role on the judgement delivered. Scientists may clone a human but at least as of now no one could revive a dead man. Is it correct for a civilized society to inflict an irrevocable punishment by a process admittedly not infallible?
The punishment is reserved for “rarest of rare cases”. The term defies definition. Interpretation will turn on time and context. Both the factors are variable and subject to individual perspective.
The term and its content bear greater affinity to opinion as opposed to logic. Views on how far or near the superlative “rarest” is, from the positive “rare”, will vary widely. “Rarest” at one point of time is not “rarest” at another point of time. No single view could either be justified logically or established as indisputable.
Murder of Mr Stains, a missionary and his children, by a brutal process of setting them on fire alive was held not a “rarest of rare case”. Keher Singh convicted for assassination of Indira Gandhi on circumstantial evidence was held to be “rarest of rare case”. Judges are known to have expressed mistakes having been committed in their judgements long after retirement.
Human communication by language that we speak and write is not perfect enough to convey in totality all intent and thought. Neither all the tears shed could translate the pain that the mind bears, into words, nor all the laughter that reflect the joy of a human mind could be fully expressed in any language. Legislative inadequacy in the process of drafting law is unavoidable. However carefully and cautiously statutes are drafted lawyers would find cause for debate. Content and meaning of phrases and terms in statutes all over the world continue to daunt judicial minds, but remain the prerogative of judiciary to interpret. Are we sure that every such interpretation is perfect and infallible? The eminent jurist late Nani Palkhiwala described the apex courts as “final forums of conjuncture”.
The US declaration of independence, the foundation of modern democracy, reads “This truth we hold as self evident, that all men are created equal and the creator has endowed upon them certain in alienable rights and among them are right to life, liberty and pursuit of happiness”. Years later the US federal court judge Douglas held that the US Constitution does not grant that right to a slave even when moved by his master to a free state. Abraham Lincoln reminded the US judiciary that such right to equality, life and liberty was an endowment of god and not a grant of written Constitution.
The Constitution of India too cannot be amended by the parliament to take away the fundamental rights which form the basic feature of the constitution. In simple language it is vandalism to destroy whatever cannot be restored. So it is with life. Even while more than 130 countries consider death penalty as uncivilised it is tragic that USA has not abolished death penalty.
Could the state in a civilised society equate itself with the perverse mind of a criminal and dispense justice in the form of revenge? Would a person psychologically inclined to indulge in crime be deterred by penal consequence however severe it may be? Does a criminal consider death penalty more severe than life imprisonment?
In how many cases in India psychiatric tests of convicted criminals have been carried out which would be immensely useful to prevent crime? Should not prevention of crime be our primary concern?
A few days ago the government banned 864 porn websites and the protest all over was overwhelming. Rightly so; privacy is a facet of right to freedom. We produce and exhibit hundreds of films that depict violence in brutal form. Have we pondered seriously the effect of such scenes on minds of teenagers?
The censor board that doles out hair-splitting decisions on obscenity has shown least concern in banning violent scenes. Custodial torture exhibited graphically in the films is so entrenched in minds of the illiterate that many consider it is perfectly proper and legal in real life. The triumph of non violence over violence is the high point of history of our nation. The spirit of that non violence should be the guiding beacon of our policy.
The public pressure against death penalty will not diminish. Effort to halt or pervert the progress of civilization, which is in the nature of evolution of species of mankind, will not succeed. The pressure to abolish death penalty will accelerate in the years to come. In a few decades if not years from now the current generation might bear the stigma of having been uncivilised.
(The author is a Tax Consultant and Advocate)
