Human Rights are those that every human can take for granted by virtue of every person being a human being. These human rights are those that are inherent in every human, despite their color, class, caste, race, religion, sex, and all other parameters of discrimination, that are common in the world today. The Universal Declaration of Human Rights (1948; hereinafter referred to as UDHR) is the pioneer document in this sphere. Broadly these rights are of two types – civil and political rights form one category and economic social and political rights being the other category. The International Covenant on Civil and Political Rights (1976; hereinafter referred to as ICCPR) governs the former and the International Covenant on Economic, Social and Cultural Rights (1976; hereinafter referred to as ICESCR) governs the latter. The UDHR, ICCPR and its two Optional Protocols, ICESCR and its Optional Protocol – all form the International Bill of Human Rights [1]. The human rights, as prescribed by the UDHR, in some way or the other, have been enshrined in the Constitution of India. Some of them have been declared to be Fundamental Rights, while some others have been delegated to be Constitutional Rights.
In 1979, India became a party to the ICCPR. This Covenant does not abolish death penalty, but it places right to life at a high pedestal and confers the procedure that is to be followed in the event of the death penalty being used as a punishment. Art 6(2) of this Covenant allowed for the death penalty to be used only in cases of extreme circumstances and not otherwise. Art 6(5) disallowed the usage of death penalty on minors and pregnant ladies. The First Optional Protocol of the ICCPR is regarding the Complaints Procedure and the Second Optional Protocol is regarding the Death Penalty, which India is not a signatory to. India has also ratified the Convention on the Rights of the Child (hereinafter referred to as CRC), which explicitly disallows capital punishment on a child (anyone less than 18 years of age) [2].
India has been staunchly against the unconstitutionality of death sentence, as can be said with their opposition to the UN General Assembly Moratorium Resolution during the past decade. The statistics, as per Amnesty International show that 106 countries in the world have abolished the death penalty completely, 7 countries have partially abolished it, 29 countries have abolished in practice and 56 countries are retentionists [3].
Article 51(c) of the Constitution of India ensures that international covenants and treaties are incorporated as domestic laws. The translation of ICCPR as domestic law is through Sec 2(d) and Sec 2(f) of the Protection of Human Rights Act, 1994. But this article is one of the Directive Principles of State Policy, which implies that it cannot be enforced in a Court of Law. The international covenants and treaties also point out that death penalty is a punishment that should be abolished because of the human rights of the accused. This is mainly because of Art 3 of the UDHR, which guarantees life to every individual. This right to life is subject to the “procedure established by law” in our country [4], which paves way for restriction of life of an individual as well. This indirectly allows for the imposition of death penalty in India.
There are two sides to imposition of death penalty – the victim’s and the offender’s. The victim is in no way satisfied by subjecting the offender to this punishment. This punishment is given mostly for sexual offenders and murders in the Sessions Court and offenders who attempt to terrorise/wage war against our country in the Supreme Court. Punishing sexual offenders with death penalty is not going to give the victim anything. Neither is punishing the offenders who have committed murders, for the victim is not even alive for any re-compensation. One has to also remember the fact that in a situation where there is either a murder or a sexual offence coupled with death penalty as punishment, it is the families of both the victim and the offender who suffer as well. There is no respite offered in such a situation. Moreover, death penalty is painless. India practices death penalty by hanging. Once the neck bone is broken, the person is dead. Breaking the neck bone takes a fraction of a second, which is not even an iota of what the victim and the near and dear ones suffer through their remaining life. The abolition idea stems from the concept of the human rights of the accused. While this is a fair point, no one ever seems to wonder about the victim. Moreover, there is no justice served by apprehending another’s life.
In this juncture, the only clear answer is for a change in the laws. Abolition of death penalty is necessary, if not for the sake of the offender, then for the sake of his/her family. The only reason as to why this debate is even there is because of the fact that this is the worst punishment to be given by the IPC. This is not so. The punishment of solitary confinement must be used more, with all reasonable care and caution. It would make the offender comprehend the magnitude of his actions, in a much better manner. There is a chance for him to feel remorse as well as it gives him a chance at reformation. This is the method that will pave the way for a better future for India and a stronger criminal system.
Written By:
Aparna Venkataraman
Tamil Nadu National Law University
[1]Human Rights, United Nations, (Mar. 22, 5:30 PM), http://www.un.org/en/sections/issues-depth/human-rights/
[2] Ibid.
[3] Death penalty, Amnesty International, (Mar. 22, 5:30 PM), https://www.amnesty.org/en/what-we-do/death-penalty/
[4] Art 21, Constitution of India
