ABOLITION OF DEATH PENALTY

The case for abolition becomes more compelling with each passing year. Everywhere experience
shows that executions brutalize those involved in the process. Nowhere has it been shown that
the death penalty has any special power to reduce crime or political violence. In country after
country, it is used disproportionately against the poor or against racial or ethnic minorities. It is
also used as a tool of political repression. Yet too many governments still believe that they can
solve urgent social or political problems by executing a few or even hundreds of their prisoners.
Too many citizens in too many countries are still unaware that the death penalty offers society
not further protection but further brutalization.

The staggering extent of state brutality and terror during World War II and the consequences for
people throughout the world were still unfolding in December 1948, when the UN General
Assembly adopted without dissent the Universal Declaration of Human Rights. The Universal
Declaration is a pledge among nations to promote fundamental rights as the foundation of
freedom, justice and peace. The rights it proclaims are inherent in every human being. They are
not privileges that may be granted by governments for good behaviour and they may not be
withdrawn for bad behaviour. Fundamental human rights limit what a state may do to a man,
woman or child.

The Universal Declaration recognizes each person’s right to life and categorically states further
that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment”. In Amnesty International’s view the death penalty violates these rights.

Self-defence may be held to justify, in some cases, the taking of life by state officials: for
example, when a country is locked in warfare (international or civil) or when lawenforcement
officials must act immediately to save their own lives or those of others. Even in such situations
the use of lethal force is surrounded by internationally accepted legal safeguards to inhibit abuse.
This use of force is aimed at countering the immediate damage resulting from force used by
others.

Article 3 of UDHR- everyone has the right to life, liberty and security of person”

Article 6 of ICCPR- every human being has the inherent right to life. N o one shall be
arbitrarily deprived of his life

Use of the death penalty declined worldwide in 2017, according to the Amnesty
International’s annual global report on capital punishment. The human rights organization
recorded 2,591 death sentences imposed in 53 countries in 2017, down 17% from the 3,117 death
sentences it recorded from 55 countries in 2016. Two more countries—Guinea and Mongolia—
abolished capital punishment, increasing the number of abolitionist nations to 106,
and Guatemala outlawed executions for “ordinary crimes” such as murder, bringing to 142 the
number of nations Amnesty reports as having “abolished the death penalty in law or practice.”
As in previous years, Amnesty’s execution total does not include the estimated thousands of
executions carried out in China or executions in North Korea and Vietnam, all of which
treat information on the death penalty as a state secret. Four countries—Iran, Saudi Arabia, Iraq,
and Pakistan—which collectively accounted for 87% of the confirmed executions in the rest of
the world in 2016, accounted for 84% of the world’s confirmed executions in 2017. The United
States dropped to 8th in documented executions (23) in 2017 and ranked 11th in death sentences
imposed. Amnesty reported that 15 countries imposed death sentences or executed people for
drug-trade related offenses, with China, Iran, Saudi Arabia, and Singapore executing
prisoners for involvement in the drug trade.only 23 countries continued to execute.

An execution cannot be used to condemn killing; it is killing. Such an act by the state is the
mirror image of the criminal’s willingness to use physical violence against a victim. Related to
the argument that some people “deserve” to die is the proposition that the state is capable of
determining exactly who they are. Whatever one’s view of the retribution argument may be, the
practice of the death penalty reveals that no criminal justice system is, or conceivably could be,
capable of deciding fairly, consistently and infallibly who should live and who should die.

It is the irrevocable nature of the death penalty, the fact that the prisoner is eliminated forever,
that makes the penalty so tempting to some states as a tool of repression. Thousands have been
put to death under one government only to be recognized as innocent victims when another set of
authorities comes to power.

China, Iran and Saudi Arabia – countries with highest number of executions

Torture:

If hanging a woman by her arms until she experiences excruciating pain is rightly condemned as
torture, how does one describe hanging her by the neck until she is dead? If administering 100
volts of electricity to the most sensitive parts of a man’s body evokes disgust, what is the
appropriate reaction to the administration of 2,000 volts to his body in order to kill him? If a
pistol held to the head or a chemical substance injected to cause protracted suffering are clearly
instruments of torture, how should they be identified when used to kill by shooting or lethal
injection? Does the use of legal process in these cruelties make their inhumanity justifiable? The
physical pain caused by the action of killing a human being cannot be quantified.

Article 7 of ICCPR , convention against torture and other cruel, inhuman or degrading treatment
or punishment (UNCAT)

Right to life:

When a state convicts prisoners without affording them a fair trial, it denies the right to due
process and equality before the law. The irrevocable punishment of death removes not only the
victim’s right to seek redress for wrongful conviction, but also the judicial system’s capacity to
correct its errors. Like killings which take place outside the law, the death penalty denies the
value of human life. By violating the right to life, it removes the foundation for realization of all
rights enshrined in the Universal Declaration of Human Rights. As the Human Rights Committee
set up under the International Covenant on Civil and Political Rights has recognized, “The right
to life…is the supreme right from which no derogation is permitted even in time of public
emergency which threatens the life of the nation…” In a general comment on Article 6 of the
Covenant issued in 1982, the Committee concluded that “all measures of abolition [of the death
penalty] should be considered as progress in the enjoyment of the right to life within the meaning
of Article 40”.

The concept of human dignity leads us to many important conclusions. I will raise here some of
them. In the first place, human dignity is in itself inconsistent with the death penalty in practice,
which, as stated above, involves the possibility, though very slight, of resulting in what
Dostoyevsky called "an outrage on the soul." Secondly, with human dignity borne in mind, we
must consider that everyone's personality is able to develop infinitely at any stage of one's life.
The "right to seek pardon or commutation of anyone sentenced to death," as guaranteed by the
International Covenant,26 presupposes the ability of anyone to infinitely develop one's own
personality.

Over time, the international community has adopted several instruments that ban the use of the
death penalty, including the following:

• The Second Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty. (no one within the jurisdiction of a state party to the
present optional protocol shall be executed)
• Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the
death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning
the abolition of the death penalty in all circumstances.
• The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

Execution Methods

• Beheading
• Hanging
• Lethal injection
• Shooting

Juvenile Executions

The use of the death penalty for crimes committed by people younger than 18 is prohibited under
international human rights law, yet some countries still sentence to death and execute juvenile
defendants. Such executions are few compared to the total number of executions recorded by
Amnesty International each year.
However, their significance goes beyond their number and calls into question the commitment of
the executing states to respect international law.

Since 1990 Amnesty International has documented 138 executions of child offenders in nine
countries: China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia,
Sudan, the USA and Yemen.

REASONS TO ABOLISH THE DEATH PENALTY

(1) It is irreversible and mistakes happen

(2) It does not deter crime
(3) It is often used within skewed justice systems
(4) It is discriminatory

INDIA:

Research by the Centre on the Death Penalty, National Law University, indicated that courts in
India imposed 109 new death sentences in 2017, including 51 for murder and 43 for murder
involving sexual offences. This represented a decrease in the total number of death sentences
imposed (136 in 2016), as well as in those imposed for murder not involving other offences (87
in 2016). Two new death sentences were imposed for drug-related offences. A total of 371
people are known to be under the sentence of death at the end of 2017.
However, worryingly, India is one of only three countries in the world that expanded the scope
of the death penalty in 2017 by adopting new laws. At the national level, the Anti-Hijacking Act,
2016, which provides for the death penalty for hijacking resulting in death, came into force on 5
July 2017.
At the state level, the Uttar Pradesh government passed a law on 22 December 2017 that
introduced the death penalty for people convicted of dealing in spurious liquor whose
consumption led to any deaths. The Madhya Pradesh government enacted a law on 4 December
2017 that would allow for the imposition of the death penalty for the rape of a girl aged 12 or
younger. Subsequently, the states of Rajasthan, Haryana, and Arunachal Pradesh have enacted
similar laws.
US – abolished capital punishment except for drug kingpin activity, treason and espionage
(kennedy v Louisiana)

RIGHT TO LIFE

Field J in Munn v Illinois (with reference to corresponding provision in the 5th and 14th
amendments of the US Constitution) - By the term “life” something more is meant that mere
animal existence.

UDHR enunciates a right to live with liberty and dignity

Life is more than a mere animal existence

Common cause v Union of India

Life and liberty

Under article 21 of the constitution word liberty is the sense and realization of choice of the
attributes associated with the said choice; and the tern “life” is the aspiration to possess the same
in a dignified manner. The two are intrinsically interlinked. Life does not intend to live sans
liberty as it would be a meaningless survival. The language employed in the article 21 must be
liberally construed for such provision can never remain static. It is imperative to mention that
dynamism can infuse life into life and liberty as used in the article. There is no doubt that the
Fundamental Right is absolute, but any restraint imposed on liberty has to be reasonable.

The expression “liberty” in the 5th and the 14th Amendments to the US Constitution is given a
very wide meaning. It takes in all the freedoms that a human being is expected to have.

A.K.Gopalan v State of Madras – concerning about the constitutionality of preventive detention.

Dignity:

Right to life and liberty is meaningless unless it encompasses within its sphere individual
dignity. With the passage of time, the Supreme court has expanded the spectrum of Article 21 to
include the Right to live with dignity as a component of right to life and liberty.

The nine-judge bench of the Supreme Court in Puttaswamy case has reaffirmed that human
dignity is a component of Article 21. Life without dignity is a sound that is not heard. Dignity
speaks, it has sound, it is natural and human. It is a combination of thought and feeling, and it
deserves respect even when the person is dead and described as “body”.

Bhagwati J in Francis Coralie Mullin v UT of Delhi said that “right to life also includes the bare
necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading,
writing and expressing oneself in diverse forms.

Later in Bandhua Mukti Morcha v Union of India where question of bondage and rehabilitation
of some laborers was involved, Bhagwati J held that “it is the fundamental right of everyone in
this country….to live with human dignity, free from exploitation.

The court has favorably entertained a petition under Article 21 for appropriate relief against the
leakage of oleum gas from a chemical plant resulting in loss of lives and injury to health (M.C.
Mehta v Union of India (Shriram –Oleum gas)

The court held the right to livelihood as a part of the right to life (OLGA TELLIS V BOMBAY
MUNICIPAL CORPORATION). Sewage workers employed by government contractors entitled
to humane work conditions and to compensation in case of injury or death.
The court in many other instances has held that the right to life includes the right to “a reasonable
accommodation to live in” and right to shelter, right to self preservation, right to reputation, right
to sleep undisturbed (Ramlila Maidan Incident, re), having good reputation.

More importantly in Unni Krishnan J.P v State of A.P, the court recognized a fundamental right
to education in the right to life under Article 21. Every child/citizen of this country has a right to
free education until he completes the age of fourteen years.