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Death Penalty Row: The infallible may have erred
Rameshwar Singh Jamwal8/25/2018 11:07:06 PM
The recent call by His Holiness, the Pope for abolition of death penalty in all nations across globe will have cascading effect on nations, where death penalty is there in the statutes. Those, following him in reverence will take it as a divine edict and there will be numerous calls and pressures from the Human Right Activists, notwithstanding the gravity of the offence or its effect on the political systems in those countries, where public rage against such move can also lead to instability of governments. As per my information, the Pope has issued this edict after careful deliberations with various learned men, of course, the opinion of those against Death Penalty, mainly from Europe, must have prevailed,. "Abolitionists" main plank is that You can't take it back. The death penalty is irreversible. The risk of executing innocent people exists in any justice system. There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable. But figures have not been quoted as to in how many cases Jail sentence was reversed and how many ,who were given death sentence, were proved innocents lateron.
It doesn't deter criminals. There is no credible evidence that the death penalty deters crime more effectively than a prison term. The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As recently stated by the General Assembly of the United Nations, "there is no conclusive evidence of the deterrent value of the death penalty" (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals. In my opinion, it is the fear of death which forces even the most dreaded killers to seek conversion of death sentence into life sentence, in their clemency petitions.
There's no 'humane' way to kill. It makes a public spectacle of an Individual's death. The death penalty is disappearing. Only when the public comes to know, it can have deterrent effect and can the "Abolitionists" suggest the other way of providing the sentence.
The arbitrary application of the death penalty can never be ruled out.
The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups. The same argument would then be applicable for jail sentences also and if some one from minority groups has committed a despicable offence, should he be set scot free simply because he belongs to a minority group.
The death penalty is incompatible with human rights and human dignity
The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
Public opinion is not a major stumbling block for abolition
Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedences where gross human rights violations had had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity.
It needs to be pointed out that public support for the death penalty is inextricably linked to the desire of the people to be free from crime. However, there exist more effective ways to prevent crime. Another argument, though not stated publicly, but often quoted is that since humans cannot give life, they have no right to take away the life given by the almighty. Now if we apply the same principal to the executive and political actions, (why confine it only judicial decisions), then any country in the world, including Europe, that have abolished Death Penalty, had no right to go against Al Qaeda in Afghanistan or ISIS in Iraq and Syria. Killing of any other animal, for eating purposes is also bad, since we can't give life to the fish, to the chicken, to the goats and all other living beings we kill, is also bad. We can allow the ISIS or Al Qaeda to run over the countries, societies but we should not do anything to take away their lives given by the Almighty. The arguments can be stretched , even to any lengths.
I am not in knowledge of the typical death penalty cases in other nations, but none of the persons hanged in India has so far been proved innocent and I will cite three cases, where death penalty has been provided in recent times. On 26th November,2008 ,Mumbai, the financial capital of India, was attacked by ten terrorists sent from a neighbouring country. They killed one hundred sixty four persons and wounded three hundred and eight people, including those from America and Israel and damaged several important buildings. One of them, Ajmal Kasab was caught on spot and after prolonged trial of several years, was provided death penalty and was also hanged on 21st November 2012.
Only few months back, a one and half month old girl child in Madhya Pardesh,was raped and killed, the rapist was apprehended immediately on the basis of CCTV footage and in one of the fastest trials, has been provided death penalty but the appeal to the High Court and then Supreme Court can take several years before he is hanged, if this case is declared as rarest of rare cases.
A few years ago, two men in Delhi were apprehended on the allegation of raping several young girls, mostly kids and then to hide their bodies, one of then used to cut the dead bodies in small pieces, kept them in refrigerator and used to eat their meat as well. After prolonged trial, both of them have been provided death penalty by the trial courts but their appeals are still pending . Now can anyone ,from his Holiness, the Pope or the numerous Human Rights activists, suggest as to what punishment these people deserve. There are many other inhuman instances as well and to term such individuals as humans is deplorable, they are savages, not human beings and don't deserve benefits of Human Rights. It is not that in every murder or terrorism related cases, courts provide death penalty in India. As per the law settled by the Hon'ble Supreme Court of India, it is only in rarest of rare cases that death penalty is given. And despite the fact that around forty thousand killings take place in India every year, more than sixty thousand terrorism related cases have been reported in over a decade in just one state,(Jammu and Kashmir) and more than forty five thousand people having been killed in those terrorism related cases, only two persons have been provided Death sentence for terrorism related incidents from the state of J&K, and only in 109 cases, (Source-Amnesty International) death penalty has been provided in cases all across the nation in the year 2017 and none has been executed for the last few years. They still have all rights before the appellate authorities and only three persons have been hanged, since 2012, one for Mumbai serial blast cases, Ajmal Kasab for 26/11 and one for attack on Indian Parliament in which several people were killed.
Now let us go as to why laws provide for such stricter punishments. This is true that in some nations in the past, even for minor violations of laws, death penalty used to be provided but after outcry, these came to be abolished and in some European nations, despite the public opinions being against the abolition, the Death penalty has been abolished. But can the wish of the people in those countries be imposed on people and nations where the overwhelming opinion is in favour of its retention. And since the national governments in majority of these nations have been elected democratically, the governments represent the will of the people, they do not have much option, despite there being a concerted effort from "Abolitionists". And the punishment has not been incorporated in the statutes only because of the western influence in framing of the penal laws. It's not that Ancient India did not have a codified law in this respect. Much before the emergence of Classical and Neo- Classical schools, "Chankya or Kautilya", the great India scholar who provided the art of governance and even prior to that Manu smriti and Bhagwad Geeta, provided for stricter punishments to those who transgressed law in big ways.
The Arthshastra by Kautilya is also called "Dandniti" (The science of Punishment, the coercive power of the state, which is the name given in Mahabharata). According to him, the aims of punishment was to maintain social order; to prevent misbehaviour by civil servants, including exploitation of the public and causing loss to the state revenue; and to avoid the danger of disaffection, revolts and rebellions. Kautilya repeatedly admonishes that punishment awarded must always be just, neither too lenient, nor too harsh. This does not mean that no leniency or clemency was to be shown. The prescribed penalties could be modified, to take into account, both the prevailing local conditions as well as the particular circumstances of the case under trial. Leniency was to be shown to anyone in distress. Often lesser punishments were prescribed, if crime was committed through ignorance or inadvertence. Diminished responsibility (inadvertence, intoxication or temporary insanity) could be pleaded and if accepted, lower penalty was imposed.(3.18.5,3.19.4)
According to him, only the Rule of Law can guarantee the security of life and welfare of people(1.5.2) and it is only the power of punishment alone which, when exercised impartially in proportion to guilt and irrespective of whether person punished is the King's son or the enemy ,that protects this world and the next.
A severe king is hated by the people he terrorises, while one who is too lenient is held in contempt by his own people. Who so ever imposes just and deserved punishment is respected and honoured.(1.4.7-10)
The special circumstances of the person convicted and of the particular offence, shall be taken into account in determining the actual penalty to be imposed. According to him, a King (Any type of government in present times) has to maintain law and order and an adequate administrative machinery which involves not only the detection and punishment of criminals (The removal of thorns or the anti- social elements, Book 4) and upholding the fabric of the society. The state is under an obligation to ensure the observance of laws and enforcement of the laws. A ruler's duties in the internal administration of the country are threefold: "Raksha" i.e protection of the state from external aggression, "Palana",i.e maintenance of law and order within the state and "Yogakshema" i.e safeguarding the welfare of the people.
According to J.Duncan M.Derret, "Manusmriti" by Manu, constitutes India's greatest achievement in field of Jurisprudence. According to Manu, a righteous King has to punish transgressors in his kingdom. A king who wishes to attain the highest position , and incorruptible, unfading fame should not, even for a moment, overlook a man of violence and a King who gives safety to his countrymen is constantly revered.
It has been prescribed that it is the Dharma of every King to uphold the majesty of Law. "Dharma" not only signifies an absolute and immutable concept of righteousness but also includes the idea of duty, which every human being owes to oneself, to one's ancestors, to society as a whole, and to the universal order. "Dharma "is law in its widest sense-spiritual, moral, ethical and temporal.
So as per these texts of universal importance, it is the duty of every state to protect its citizens from the onslaughts of the transgressors of law, those who can cause mayhem in the society with their actions, if not prevented from doing so. The protection can be by way of their incarceration as well, as per "Abolitionists" but whether such incarceration can act as a deterrent for the 'would be followers' of such beings. There are no authoritative studies, perhaps in my country, so far. And does it meet the ends of justice, simply by curtailing his freedom for some years, have we succeeded in providing complete justice, not only to him, but to the victims as well. Can such a person be of some use to the society after he is freed, can we bring change in his behaviour. For this you will have to go my thinking and research work as explained in https://www.academia.edu/33126239/Understanding_ Crime_Changing_ Criminal_Behaviors_ The_Yogic_Way
Only if the "Abolitionists" have some ideas about the use of such individuals to the society and they can guarantee the safety and security of nations from the hands of desperadoes, terrorists, murderers and Rapists, they have the moral authority to plead for them.
The author is the President of Criminologists Society of J&K and propounded "Yogic Crime Theory".
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