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Mainstream, Vol XLV, No 45

Capital Punishment : A Penological Barbarity


Wednesday 31 October 2007, by V R Krishna Iyer


Compassion for all living creatures (Article 51A) and human rights in its spectral dimensions, including the right to reform oneself out of a diabolic past, if any (Article 21), are great constitutional values spelt out in Sunil Batra (AIR 1978 SC) and Maru Ram (1981 SCC) and a number of other refined rulings of the Supreme Court. We have accepted in our Buddha-Gandhi country the reformatory theory of criminal jurisprudence and impliedly departed from the retributive theory which once prevailed with a savage imperial flavour. Independence heralded Social Justice commitment and the State’s profound reverence for human life however malignant by culpable conduct it may be. The Universal Declaration of Human Rights and the general ethos of the United Nations contradict the unconscionable punitivity of ‘an eye for an eye’. From Macaulay, who drafted the Indian Penal Code, to Mahatma Gandhi, the Father of the Nation, who stood unexceptionably against death penalty, there has been a benignant value shift. The Amnesty International has, for long, been carrying on an uncompromising campaign against this appalling penal inhumanity practiced as death sentence. The United Nations is seriously concerned with this sentencing terror. In this context I have addressed an epistolary appeal to Prime Minister Dr Manmohan Singh. We, the People of India, using its Sovereign Constitutional Power, must abolish Death Sentence as the United Kingdom and a large majority of nations have already done. The State cannot sanction murder by hanging or otherwise and justify this shocking violence on the score of reprisal against the brutality of private butchers. Sanguinary atrocity by a non-state agency is no paradigm at all to justify burking the offender based on the blood-thirsty retributive justice commandment. ‘Thou Shall Not Kill’ is the cultural quintessence and spiritual majesty of our Republic’s justice system.

India, with its heritage of Gautama Buddha, and Mahatma Gandhi, has stood for a culture of compassion for living creatures (now constitutionalised in Article 51A). Therefore, there is a moral mandate that no one shall be deprived of life by the State as it savages humanity and sanctifies barbarity. Between Macaulay, whose country even publicly hanged pick-pockets, and the Mahatma, who sublimely astonished the world with indefeasible nonviolence, there has been a phenomenal transformation in global criminological values and in the vision of our nation. This glorious Gandhianisation persuaded me to conscientise punitive justice in two Supreme Court rulings where my opinion prevailed. .

The Supreme Court of California has acknowledged in two cases the cruel and degrading effect of dalay: People V. Chessman (34 P. 2d 679 (1959) at page 699) and People V. Anderson (493 P.2d 880, 894 (1972). In the latter case the Court expressly mentioned the dehumanising effects of lengthy imprisonment prior to execution. Justice Krishna Iyer of the Indian Supreme Court has expressed a similar view, when the delay after sentence was six years. They were Edigma Annamma (1974) 4 SCC 443) and Rajendra Prasad (1979) (3 SCC 646), which were cited with approval by the great judge Lord Scarman in a Privy Council case (vide Supreme Court On Criminal Law, p.1465)

WAY back in 1976 (?) I was invited by Amnesty International to speak at the inaugural of a seminar against death penalty held in Stockholm. I made an emphatic demand at that conference for the absolute abolition of death sentence, a plea which was firmly shared by Olaf Palme (?) who was the then Prime Minister of Sweden. I have always stood for clemency for death sentencees on the theory that every person, even if he has committed murder ‘most foul’, must be given an opportunity to reform himself. Retributive justice, based on an eye for an eye, makes the whole world blind, as Mahatma Gandhi powerfully put it. The State cannot kill, even if a private murderer is found guilty of terrible killing. Refined jurists have supported this humanising process which I described in one of my judgments as Operation Valmiki. Valmiki was a forest robber who went to the extent of even murder, but when he was chastened by a saintly message he proved to be one of the noblest souls in the cosmos who composed the Ramayana and is regarded as perhaps the greatest epic poet in Sanskrit. It will be the grandest event of our century if, as a universal rule, death penalty is abolished.

Indeed, a momentum is gathering to end capital punishment in all countries. 130 nations, from all regions of the world, have abolished the death penalty in law or in practice and only 25 countries carried out executions in 2006. Amnesty International (AI)’s statistics also show a significant, overall decline in the number of reported executions in 2006. (Excerpts from a statement by Amnesty International)

Death sentence on Death Sentence is an inviolable command of compassionate culture and fundamental expression of social justice grandeur. No civilised state shall have authority to inflict death penalty even in the rarest of rare cases, lest it be condemned as guilty of barbarity and devoid of humanity. Universal respect for Human Rights commands absolute abolition of capital punishment as no state, committed to social justice and human rights can stultify or demolish the right to life of any human being.

Before I conclude this militant plea against death sentence I must place on record an extraordinary piece of information hardly known to the outside world. The late Nikhil Chakravartty, while inaugurating at Trivandrum my campaign as the presidential candidate some years ago, stated what is rarely written about President Radhakrishnan. Nehru was the Prime Minister and Radhakrishnan, the President. Death warrants, before actual execution, had to be signed by the President. It would appear that Dr Radhakrishnan, our great philosopher and humanist, did not believe in death sentence and did not sign death warrants because they were against his conviction. When these instances multiplied, Nehru, the Prime Minister, sent a special official to convey his wish that the President may be pleased not to delay signing death warrants. Dr Radhakrishnan, the rarest of the rare Presidents, told this high official, who had come from the Prime Minister: please tell the Prime Minister that he had better wait for the next President to sign.

Justice V.R. Krishna Iyer is a former Supreme Court judge and a distinguished champion of civil liberties and human rights.

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