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Death Penalty – Its Moral Perspective

Gurmit Singh*

The most crucial words in the abovesaid subject are, “The moral aspect”. By the word “moral” we mean here, “the rules of right conduct”. So we are to test our policies with respect to Death Sentence by principles of right or wrong action in the Indian context.

It is a pity that while the Indian State has enjoyed and reaped all benefits from the legacy of Buddha, Mahavira, Guru Nanak, its constitution still permits the State to commit judicial murders under the garb of public interest.

A bill for abolition of capital punishment has been introduced and discussed in the two houses of Parliament from time to time but never passed. Lok Sabha rejected it on November 23, 1956, Rajya Sabha rejected it in 1962. The reason is that the party in power does not want to surrender its weapon that enables it to eliminate its adversaries under the garb of legal legitimacy, because under Section 121 of the I.P.C. Waging war against the Government of India, punishment of death or life imprisonment are provided. This is in spite of the fact that even Mahatma Gandhi, the father of the nation, whose legacy India flaunts, was opposed to capital punishment. He had stated that destruction of individuals can never be a virtuous act. God alone can take life because He alone gives it.

While under Article 253 of the Constitution of India, the Government of India is committed to implement its obligations under the International Treaties & Covenants signed by it, the government has failed to fulfil them under the International Covenant on Civil and Political Rights which was signed by it in 1979. Article 6 clause (i) and (ii) of this Covenant calls upon for the abolition of death penalty. Even judiciary has encouraged it by holding that International Covenants have only persuasive value and are not binding. Government has failed to heed to the calls by various International Conferences that abolition of death penalty is imperative for achievement of International Standards. The most unfortunate part of the whole episode is that even highest judiciary of this country has upheld this attitude of defiance by holding in the case of Bachan Singh Versus State of Punjab that India’s penal laws are in accordance with its international commitments.

A study of the decisions of the Supreme Court reveals that the highest judiciary of this country, which has no Sikh representation, since last several years when Hon’ble Mr. Justice Kuldip Singh retired, has become insolent towards the Sikh psyche which was deeply hurt by “Operation Blue Star”, which had damaged their holiest shrine through military action by the Indian Army. None of the decisions by the Apex Court has taken note of the fact that the entire Sikh community considered the assault on the Golden Temple Complex as an assault on the Sikh religion and some overzealous amongst them launched struggle for independence and the Sikh psyche was deeply hurt. In any criminal trial the psychic condition of the offender and his motive are important factors in determining the sentence but unfortunately the judges have shown least regard for the hurt Sikh psyche by the humiliation meted out to them. Rather, judiciary added fuel to the fire by justifying Operation Blue Star by saying that the military action was taken by a responsible and responsive government in the national interest. The judiciary has failed to take notice of the recognised principles of law that offences which are committed to take revenge for political persecution are political offences in which death sentence should not be awarded. Death sentence adds a hallow of martydom on the political offender and glorifies his execution. This encourages others to follow in his footsteps. Theory of deterrence has been found to be obsolete during recent researches on this subject. The judiciary while dealing with cases of Sikh militants has failed so far to look at the events from the angle of the offender and the revengeful psyche of the people from which Hon’ble Judges’ aim has overshadowed the hurt psyche of the accused which demands compassion and human concern. The family background of a judge, his political views, his psyche, all influence his decision and the fallability of human judgement cannot be denied even in the case of a most trained and experienced mind. Unrestricted excessive discretionary power of awarding capital punishment conferred on the judges need to be withdrawn ‘or at least strictly confined to well defined boundaries and checked. All cases in which death sentence is awarded, the sentence should be made subject to confirmation by International Commission for Crimes Against Humanity which the U.N.O. should set up or at least National Human Rights Commission.

In Devinder Pal Singh’s case, the death sentence has been awarded under the Terrorist And Disruptive Activities (Prevention) Act, although the word “terrorism” has not been defined so far. Even the United Nations and its agencies have been debating terrorism for decades, but so far have not come to an agreed definition. There are diametrically opposite perceptions. While one group considers it a worst crime against humanity, the other group glorifies it as a fight for liberation. The legal status of Sikh struggle in the end of 20th Century is yet to be determined by an International Judicial Tribunal. Until the word ‘terrorism’ is defined by the U.N.O. or its agencies, no country should be allowed to execute capital punishment.

Terrorist And Disruptive Activities Act under which Devinder Pal Singh has been convicted and sentenced to death is an internationally condemned inhumane legislation but even the Rules thereunder have been flouted. For example, while the Rules require the recording of a confessional statement by the recording officer “under his own hand” the confessional statement relied by the Supreme Court was recorded on a computer. Admittedly, there are discrepencies in the confessional statement of the accused. But still the learned judges have awarded capital punishment by holding that confessional statement can be relied for conviction and no further corroboration is necessary. This is not an isolated case regarding Sikhs where capital punishment has been pronounced by Indian Courts ignoring well established canons of law. Even ‘in the case of Kehar Singh, capital punishment was executed in spite of opinion by the International Commission of Jurists that the evidence does not make out a case for conviction.

I must say that Sikh Human Rights Organisations have not put up the Sikh case in proper perspective. Insurance claims were resisted on the ground that it was an act of war. Suit for compensation is pending since long. Army officers were decorated for heroism as if it was war. Even an individual who fought by irregular means against an invading enemy is entitled to combatant status under Art 2 of the Hague Regulations and is entitled to privileges conferred on Prisoners of War when captured.

We therefore call upon the U.N.O. and the Indian State to adopt a resolution staying execution of capital punishment until a consensus is reached on the subject.

If we are sincerely committed to peace, let us stop these judicial murders being committed by the State regularly, which have failed to give security to the people.



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