Background :-
The honorable Supreme courrt, in the case of Shankar Kisanrao Khade vsStateofMaharashtra (‘Khade’) ,observed that while applying rarest of the rare principle ,the executive(President) has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life.
Hence , called for Law commission to resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.
The 35th Law commission report emphasized the use of death penalty while 262th report recommends its abolition.The 262 th Law commission was published recently and nearly at the same time the parliament expanded the scope of death penalty (Criminal Law (Amendment) Act 2013) and if any reading of the public mood in general has taken in to account, save the intellectuals and erudite, it is largely in favor of doling out death to heinous offenders.Surprisingly this prevailing public mood is especially when India not at the cliff of a serious crisis such as wide spread communal violence or threat of terrorism per se.
Subsequent Developments : –
35threport Law Commission , 1962 :- It observed that, to the conditions in India,to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment .The commission upheld that the deterrent object of capital punishment was its most important object.
In the same vein it also held that the Human values and high moral grounds are compelling enough to abolish capital punishment , however maintenance of Law and order in such a vast county is of paramount importance and abolition of death penalty may lead to dilution of deterrence.
Political Developments :- Demands for death penalty have been made by various political parties in India ( CPI,CPM, DMK and many more) . More than once private members bill was presented in parliament to abolish death penalty.
International Developments:- In 1967 ,when 35thLaw commission report was presented ,only 12 countries has abolished death penalty.Today , 140 countries have abolished death penalty in law or in practice.The death penalty is most frequently used in Iran, China, Pakistan, Saudi Arabia and USA.
History Of death Penalty In India :-
1) Following the execution of Bhagat Singh,Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session,which included a demand for the abolition of the death penalty.
2)Indian Constitution assembly debates between 1947-1949 , at the time of drafting constitution, raised questions around Judge-centric nature of death penalty, arbitrariness in imposition, its discriminatory impact on people living in poverty, and the possibility of error. Dr B.R. Ambedkar was personally in favour of abolition of death penalty as can be noted from the transcripts of constitutional assembly debate.However , he suggested that the desirability of death penalty must be left to the parliament to discuss and legislate as per demands of time.
3)From Jagmohan to Bachan Singh :-
The constitutionality of death penalty first challenged in the case of Jagmohan Singh VS State of U.P (1973) ; and court held that death penalty was a permissible punishment and did not violate constitution.However held that the discretion of judges must be replaced with a procedure, but then again feeding every judicial data into a judicial computer and all such situations are astrological imponderables in an imperfect and undulating Society.
In case of Bachan Singh vs State of Punjab (1979) , the court adopted the principle of “rarest of rare crime” and opined that “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”
4) Recently, the scope of death penalty is expanded . For example Criminal Law (Amendment) Act 2013 , introduced several new provisions into IPC , including section 376A , which allowed for the death penalty to be imposed in cases where rape led to death of the victim, or left her in a persistent vegetative state ; and 376E that allowed for death penalty for certain repeated offenders.These amendments were passed on the recommendation of Verma Committee report .
Justifications for Death penalty : –
The justification for death penalty is centered around following principles:-
A)Deterrence
B)Retribution
C)Incapacitation
D)Unique condition of India
E)Proportionality
F)Public Opinion
G)National Security and terrorism
A)Deterrence : –
Deterrence aims to prevent individuals from offending by using the fear or threat of punishment.The assumption behind deterrence theory is that all persons are rational individuals and everyone knows the penalty for the crime one commits and weighs the consequences before committing the crime.The prerequisites for deterrence is that : –
(a) That potential offenders know which offenses merit the death penalty
(b) That potential offenders conduct an analysis of the costs and benefits before or while committing the crime and weigh the death penalty as a serious and important cost
(c) That potential offenders view it a probable consequence that they will be subjected to the death penalty if they commit the crime
(d) That potential offenders are risk-averse and not risk-seeking
(e) That potential offenders give more weight to the costs than the benefits, and choose to not perform the act.
Given the above point , it can be attributed that deterrence rests upon two fundamental fallacies :-
a) Knowledge Fallcies:-
Knowledge fallacies refer to the idea that offenders do not know the penalties applicable to the crimes that they plan on committing. Hence, they do not feel deterred by a severe penalty. However,deterrence assumes that every individual knows the legal penalties applicable to him/her in case s/he commits a crime. There is ample evidence to show that both the general public and potential offenders have little or no knowledge of the penalties which they can be subjected to.
Aptly put :- About-to-be lawbreakers don’t look up penalties in the law books; they plan, if at all on how to avoid being caught
b) Rationality Fallacies : –
A major assumption of deterrence theory is that potential offenders are rational decision makers. However, a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or are motivated out of strong
emotions such as revenge or paranoia. In circumstances such as these, deterrence is unlikely to operate since the actor is not likely to give due weight,or even a cursory consideration to what penalties might be imposed on him/her subsequently; the focus being on the emotion driving his/her state of mind.
Theorists argue that the assumption in criminal law that the harsher the punishment, the
less likely it is to be committed is not true.
While deterrence by death penalty falters on an individual level , it does serve as a public deterrence , i.e. , it keeps the public aware of not to commit crimes that may lead to capital punishment.It acts as a fear that may stop one from pursuing momentary passion for crime.It acts as a manifestation of social values and society’s stand against certain heinous crimes.
B) Retribution : –
There are two accounts of retribution – one considers retribution as revenge. The other states that retribution does not demand committing an equivalent act on the offender, as is suggested by the “eye for an eye” philosophy (“mirror punishment”). It rather
advocates a measured and appropriate level of punishment for the offender’s conduct.
Revenge based retribution is denounced by SC , instead it upheld that retribution as punishment deserved by offender. Hence it is argued that capital punishment as a retributive justice is not a justified punishment. But then , separating retribution as revenge and retribution as deserved is blurred and thus tagging capital punishment as a retribution as revenge is far simpler generalization of a far more complex issue.
C)Incapacitation:-
The theory of incapacitation advocates dealing with offenders in such a way that they are not in a position to re-offend. It is generally used as a justification to impose longer sentences on repeat offenders, “dangerous” criminals and “career criminals.” Capital punishment is the most extreme form of incapacitation, since it implies taking the life of
the offender to ensure that he/she does not offend. A person is sentenced to death using the incapacitation rationale if it is determined that his/her existence causes an unreasonable threat to society.
On this ground life imprisonment may be argued as a better option than capital punishment as both incapacitates. But the difference is probably an economic one. If a person is not wanted in the society being a threat to it , the rationale to keep one imprisoned for life defeats the purpose of prisons as correction houses.Both the penalties are awarded when it is established that the individual is beyond reform , so keeping one alive till end of one’s life is a costlier burden on the state, especially for a state that is mired in poverty, inequality and many other social ills.
It may seem illogical and probably immoral to equate one’s life with economic aspects and weigh the options, but as the reality stands today ,owing to our economic development of state we don’t have enough health infrastructures and many die in the absence of basic healthcare facilities.In the same note of comparison it make no rationale to keep one imprisoned for life. So awarding life sentence instead of death penalty does not make justice more prudent by any standards.
D)Unique Condition of India :-
To compare , India with other societies would be a wrong proposition.Being a vast and diverse county with varying values of communities , it is essential that the rule of law must prevail , not only in literature but in spirit .Enforcement of rule of in such a diverse society is a humongous task.Judiciary essentially dispenses justice to individuals and deals with individuals on a case by case basis .On the contrary Government functions are completely different , it deals with the society as a whole and not on a individual basis.Thus while parliamentarians took recourse to expand the scope of death penalty , the law commission report headed by judiciary panelist , with inputs from various intellectuals recommended its abolition .And in this context , India , stands apart from any other country and so does it’s legal and judicial system and capital punishment.
E)Proportionality :-
Censuring the offender and communicating society’s disapproval of his/her actions is a primary goal of the theory of proportionality.The severity of the sentence is an important consideration for the theory of proportionality, since a disproportionate or severe punishment overpowers the element of censure. Deciding the proportionality has been a discretion of judges and rests on arbitrariness .Whether a death penalty is a proportional justice or not is largely dependent on the circumstances and culpability of the offender.
Recent case of Hanging of Yakub Memon is a case point.If an act terrorism or a conspiracy of terrorism , that resulted in death of hundreds of people , should the offender be awarded death penalty ? Oddly enough,the act of terrorism was committed in 1993 and execution occurred in 2015. The time difference between the two events has a telling on its own. Recently,i.e in 2015 , a larger section of media , both print and television has advocated for abolition of death penalty and commutation of life for accused ; however in 1993 (till the last decade of 20th century) the same section of media had not advocated or so to say debated the use of death penalty when it was awarded to the offender.It is well know that the accused was hanged as he was found guilty on many counts ; but what is missing is concept that terrorism that killed 100 (say) lives but it terrorized 100crore .Clearly the deceased were neither the target nor the victim of terrorism , it is the rest of the country , or so to say all of humanity was the target and they were the victim.
In this context , the judiciary can convict only on the facts that 100 lives were lost , but it can not ponder upon on the fear of 100 crore. And this is the reason why even though death penalty is no deterrence to terrorist ( given that they were on a suicide mission), yet it has to awarded in case of terrorist convictions and loss of life. Because , even if a terrorist is on a suicide mission , yet till he draws his last breath , he hope or plans to escape the consequence as survival is the basic instinct of human life and every offender never thinks he will be caught.
So proportionality of penalty has to be judged on case by case basis and abolishing a particular sentence by generalizing or categorizing the crimes as per convenience will be a gross disproportion.
F)Public Opinion:- Public opinions as usually reactionary and so is public.Hence judicious balance is required while weighing the option of penalty and due to this very reason we have witnessed ‘mob justice’ and ‘media trials’ on the matters that are sub-judicial.Public opinion does influence the courtrooms and parliament alike.So abolition of death penalty by generalizing that it does not have deterrence or disproportionate or harsh retribution of revenge is illogical.
G)National Security and Terrorism : – As stated above death penalty is no deterrence to the terrorists however it plays a great deal on public psyche and brings some form of solace to the victims and public at large.
Conclusion:-
Human values and Public opinion has great emphasis on shaping the society and the public should be convinced to move towards abolition of death penalty gradually and public consensus building is essential in this regard.Abrupt act is best avoided.Moreover given man’s natural inclination to transform his society to be more humane , it is essential that capital punishment must be abolished , but before this can be achieved , it is a prerequisite necessity that the public displays maturity.Complete abolition probably will take some moretime , but the recourse to capital punishment can be restricted if not by law then at least by practice .
Recent Posts
The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.