Death Penalty Is Not a Deterrent, Abolish It

Hindustan Times (New Delhi, India), July 31, 2015 | Go to article overview

Death Penalty Is Not a Deterrent, Abolish It


India, July 31 -- Yakub Memon has been hanged on his birthday after due process of law and after being in jail for 21 years. Eight judges were convinced that he deserved death as 'just deserts'. They did not change their mind even in yesterday's pre-dawn hearing. Now is the time to debate the efficacy of the death penalty as a punishment.

The Romans had abolished the death penalty because so far as the death penalty was concerned, Julius Caesar had said, "I can say with truth that amid grief and wretchedness death is a relief from woes, not a punishment; that it puts an end; to all moral ills and leaves no room either for joy...

To kill is not to punish..

If by death we cut off his joys and happiness in the same measure we cut off his sorrows and humiliation..

Death is an asylum, impregnable against punishment."

By contrast, between 2000 and 2015, 1,617 people were sentenced to death by the trial courts in India. This is the state of affairs in spite of the 'rarest of rare' doctrine. The shocking findings of the latest study by National Law University, Delhi, have clearly proved that just like in the United States, the death penalty in India is basically used against the poor, marginalised and minorities. Blacks who killed whites were three times more likely to get the death penalty than whites who killed blacks.

The criminal law is described as 'an island of technicality in a sea of discretion'. The police have the discretion in arrest; the prosecutor as to whether to prosecute and if so, for what crime. The judges have the discretion as to sentence. The President and the governor too have the discretion in pardoning powers. Should the decision to kill be left to discretion?

For centuries the death penalty was not debated so far as its legitimacy was concerned. Its acceptance in ancient societies seems to have depended on two fundamental principles: First, insignificant values attached to human life or, at least, to the life of any particular individual. Second, the death of the criminal was considered to be just and necessary under the principle of retribution.

Thorsten Sellin in the US conducted a study of crime rates and trends, which showed that the abolition or the re-establishment of capital punishment never led to an abrupt and appreciable rise (or fall) in criminality. In 18th century England even pick-pocketing was punishable with death. Even when the offender was being hanged, there were sharpers ready to pickpocket those who delighted themselves as spectators at the scene of the execution.

The constituent assembly did debate the death penalty and its leading members favoured abolition. Shibban Lal Saxena, who himself was on death row for 26 months and had seen 37 persons being hanged, forcefully argued that at least seven of them were innocent. BR Ambedkar, Frank Antony and Thakur Das Bhargava too argued for the abolition but eventually the matter was left to the decision of Parliament. …

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