Death sentencing and human rights
The Universal Declaration of Human Rights recognises the right to life[1] and thus considers punishment by the Death penalty an offence and in violation of this human right. Article 5 of the UDHR states that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment[2]. According to the United Nations, Human rights punishment as the death penalty isn’t consistent with the right to life and the right to protection from a life of no torture or cruelty or inhuman and degrading treatment or punishment[3]. The UN opposes the use of death as a punishment in all circumstances. According to the UN, the death sentence is irreversible[4] and thus even when backed by a legal process mistakes can be made and wrong accusations can happen. Several international and national human rights institutions are working on prohibiting the use of capital punishment or encouraging its abolition or working to, limit its application. Even after worldwide efforts, some countries continue to employ the death penalty. UN Economic and social council in 1984 adopted “safeguards guaranteeing protection of rights of those facing the death penalty” which mentions the following points[5] –
- It is advised to abolish capital punishment altogether but the countries that haven’t done so should use capital punishment only for very serious crimes.
- It is stated that capital punishment should only be imposed for which it is prescribed in the law “at the time of its commission”. If subsequently a provision for a lesser penalty is made the offender will be able to benefit from that.
- Death sentencing should not use used in cases where the offender is below 18, mentally unstable, pregnant woman or a new mother.
- The death penalty is to be used only in cases where the evidence is strong and convincing that there is no other explanation for the crime.
- A fair trial is a primary requirement before considering capital punishment, the process should include all safeguards to ensure the same. Capital punishment is to be only given after a final judgement of the competent court.
- The right to appeal has to be given to the person who is sentenced to death punishment.
- The accused shall have the “right to seek pardon, or commutation of the sentence” and may be granted in a few circumstances.
- Capital punishment should only be carried out after exhausting all other modes of procedure, relating to pardon or any other means.
- If capital punishment is to be carried out, it should be carried out in a manner that ensures minimum possible suffering to the person.
- Capital punishment in the u.s.a
In the United States, there are different regulations for different states. In 27 states in America Capital punishment is legal out of which only 20 can execute death sentences and the rest 7 and the federal government are bound by different moratoriums. However, the death penalty is abolished in the other 23 states[6]. The United States is the only western nation that sentences the death penalty regularly and the USA is one of the four developed countries that still[7] practices capital punishment. The USA was the first to develop lethal injection[8] as a method of execution which was later adopted by 5 countries, as of today, only 4 countries use this method China, Thailand, Vietnam and USA[9] .
- History of executions in the USA –
- People started protesting in the 1950s over capital punishment which led to a gradual decline in the punishments
- There were no executions between 1967 and 1977[10]. Supreme Court in 1972 in the case Furman v Georgia[11] stuck down all death penalties and reduced all the sentences to life imprisonment. The court declared the death penalty unconstitutional as it violated the eighth amendment right.
- The court in Gregg v Georgia,1976[12] reaffirmed the use of capital punishment which was previously declared unconstitutional.
- Since 1977 more than 7800 defendants have been sentenced to death and at least 1500 executed. [13]
- In 2005 in the case of Roper v Simmons[14] the Supreme Court stated that it was “unconstitutional to execute murderers who were under the age of 18”
The death penalty can only be given in case of aggravated crime, each state has its own rules in this regard, it can also be given in cases of crime against the state.
- Capital punishment in India
India is one of the few countries which allows capital punishment but under certain circumstances. IPC or the Indian penal code is the substantive criminal law in which crimes are defined and respective punishments are mentioned, under the IPC there is mention of death as punishment under several sections for offences such as criminal conspiracy, murder, and waging war against the government, terrorism etc. Capital punishment as a valid form of punishment in India has gone through many changes. Constitution of India mentions article 14 which states protection for rights and liberty which comes into play whenever the validity of the death penalty is in question, but the “constitution does not explicitly mention death penalty as anti-constitutional”.
The concept of “rarest of rare cases” is used when using the death penalty. This concept was introduced in the case of Bachan Singh v State of Punjab[15]. In this case, it was laid that the court must pay attention to both crime and criminal when deciding the punishment. The courts should also consider factors like age, mental condition etc. This case resulted in the debate on whether the death penalty was compatible with article 21 of the constitution.
In the case of Macchi Singh v. the State of Punjab[16] Justice M.P Thakkar gave a guideline on what can determine a ‘rarest of rare case’.
- How a murder is committed.
- What the motive was?
- What was the nature of the crime
- The magnitude of the crime
Analysis of sentencing in the Us and India
The death penalty is a rising controversial topic all around the world which has an obvious effect led to changes in capital punishment usage all around the world.
- In the US the punishment by death is much more often used compared to India, however, the use is gradually declining in recent decades[17] .
- The states in the US have the liberty to decide the capital punishment is legal or not, many have abolished it and even the states which have the death penalty rarely use it [18] . While in India the Supreme Court which is the apex court has laid down the ‘rarest of rare case’ doctrine which is used while determining the death penalty.
- The execution methods used under the death penalty in the US include Beheading, Hanging, Lethal injection and shooting[19]. All capital punishments in India are carried out by Hanging.
The death sentencing is carried out after extensive litigation both in India as well as the US but the grounds for deciding whether capital punishment is the right decision are different. In India, there is one law which applies to all the courts in the country, unlike in the US where all the states are free to decide their laws.
Conclusion
During the last few decades, the UN and many regional, as well as international bodies, have raised the issue of capital punishment being a violation of Human rights. The In focuses on the universal abolition of the death penalty. It has adopted various resolutions which urge member countries to abolish the death penalty. However, US and India haven’t abolished the use the capital punishment however they have restricted the use of this form of punishment. In the US some states have abolished it and India has significantly reduced the use of this punishment. Countries all around the world are recognising human rights and capital punishment being a violation of them. By the end of 2021, 108 countries have abolished the death penalty for all crimes[20] .
Author(s) Name: Tashvita Yardi (Savitribai Phule Pune university)
References:
[1] Universal Declaration of Human rights , 1951, art 3
[2] Universal Declaration of Human rights, 1951, art 5
[3] Death Penalty, (OHCHR) <https://www.ohchr.org/en/topic/death-penalty> accessed 10 July 2022
[4] Ibid
[5] Ibid
[6] ‘State and capital punishment’ (NCSL.org, 8 November 2011) <https://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx> accessed 11th July 2022
[7] ‘Capital punishment in the United States’ (Wikipedia, 20 July 2022) <https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States> accessed 22 July 2022
[8] ibid
[9] ibid
[10] Ibid
[11] Furman v. Georgia (1972) 408 U.S. 238
[12] Gregg v Georgia (1976) 428 U.S. 153
[13] Capital punishment in the United States (n 7)
[14] Roper v Simmons (2005) No. 03–633
[15] Bachan Singh v State of Punjab 1980, AIR 898, SCR 145
[16] Macchi Singh v. State of Punjab 1983, AIR 957, SCR (3) 413
[17] John Gramlich, ‘10 facts about the death penalty in the U.S.’ (Pew Research Center, 19 July 2021) <https://www.pewresearch.org/fact-tank/2021/07/19/10-facts-about-the-death-penalty-in-the-u-s/> accessed 12 July 2022
[18] Ibid
[19] ‘Death Penalty’, (Amnesty International), <https://www.amnesty.org/en/what-we-do/death-penalty/> accessed 12 July 2022
[20] Ibid
