Death penalty: No end to it

A SEPARATE vote was requested on three operative paragraphs (4g, 5b and 7). These paragraphs: 

i)              Urged States "not to execute any person as long as any related legal procedure, at the international or at the national level is pending"; (para. 4g)

ii)             Called upon States that still maintained the death penalty to "establish a moratorium on executions, with a view to completely abolishing the death penalty"; (para. 5b)

iii)           Requested States "that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out". (para. 7) 

The rejection of the motion led to the Indian delegation abstaining during the vote on the resolution.

India's opposition contradicts the growing international trend towards the abolition of the death penalty.

According to Amnesty International, 111 States have abolished the death penalty in law or practice. At the international level, 47 States have ratified the Second Optional Protocol to the ICCPR, and seven have signed it. In February 2002, the Council of Europe added a protocol (No. 13) to the European Convention on Human Rights banning the death penalty in all circumstances, including for crimes committed in times of war and imminent threat of war. The protocol will be legally binding, with no derogation or reservation allowed. An earlier protocol (No. 6) abolishing the death penalty in peacetime has now been ratified by 41 States in Europe and signed by two others. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty has been ratified by eight States and signed by one in the Americas.

The death penalty in India is imposed disproportionately upon those who are poor and uneducated. The dangers of arbitrary, unequal, and mistaken application of the death penalty are compounded by the inadequacy of procedural safeguards afforded to defendants accused of capital crimes.

The Constitution of India protects the right to life (Article 21), the right not to be arbitrarily deprived of one's life (Article 21), and the right to equal protection by law (Article 14). Capital punishment violates all of these. The courts and the executive, which decide on mercy petitions sometimes impose the penalty arbitrarily; discriminatory considerations, such as the offender's economic status and political background often play a part in executions; and the procedural safeguards in place to ensure that only the guilty are executed are grossly inadequate.

The penalty is also unjustified as either a deterrent or retributive measure and is a form of cruel, unusual, and degrading punishment.

While international human rights instruments recognise the death penalty as an exception to the right to life, these instruments also impose strict limitations on when and how a death sentence can be determined and executed. The ICCPR states that the "sentence of death may be imposed only for the most serious crimes".

Broadly defined, the Human Rights Committee has indicated that this phrase excludes the imposition of the death penalty when the crime did not involve the death of the victim; specifically, the death penalty should not be imposed for political or economic crimes. In addition, the ICCPR prohibits executing pregnant women and a person who committed a crime while less than eighteen years old, and other international instruments prohibit the execution of mentally disabled individuals.

The ICCPR also establishes procedural requirements that States are required to respect in the imposition of the death penalty, including the defendants' right to have adequate time and facilities for the preparation of a defence, to be tried in his or her presence, to have legal counsel, and to adequate appeal.

Finally, the ICCPR prohibits imposition of the death penalty under retrospective law. Because these standards have been widely adopted by the international community, they should inform and guide States in their imposition of the death penalty regardless of their ratification of a particular instrument. 

Indian practice contravenes these standards. Under the Indian Constitution, the death penalty may be imposed for crimes that do not involve the death of the victim, and juvenile offenders may be executed. The procedural safeguards available to Indian defendants also fail to satisfy international human rights standards: defendants do not have access to adequate legal counsel and the right to appeal is not available in all cases.

Paradoxically, it has arguably been the development of the "rarest of rare" doctrine that has helped the death penalty survive as a form of punishment over the years. The international legal standard involves a commitment towards the progressive abolition of the death penalty; accordingly, continuing to impose the death penalty, even if in only the 'rarest of rare' cases, should not be a permanent or enduring feature of any domestic legal system.

Instead, a doctrine such as the 'rarest of rare' should be an intermediate step towards the ultimate goal of abolition.

The rarest of rare doctrine also cannot be applied without violating international prohibitions against arbitrary and discriminatory treatment. It is exceptionally difficult, if not impossible, to create or operate a system with flexible standards for judges to determine the 'rarest of rare' cases, without having the sentencing process result in uneven and arbitrary treatment.

Finally, India's expansion of the use of the death penalty - as in the Prevention of Terrorism Act 2002 - violates both international law and the rarest of rare standard itself.

As a party to the ICCPR, India must work towards the gradual abolishment of capital punishment.

The government should: (1) establish a moratorium on executions, pending reforms in the criminal justice system that guarantee the equal treatment of similarly situated defendants and the highest standards of fair trial rights; (2) adopt explicit language to limit the scope of the death penalty to the most serious crimes as defined by international law; (3) eliminate the possibility of imposing the death penalty in proceedings conducted by special tribunals which lower the procedural protections usually afforded defendants; and (4) prohibit hanging as a method of execution.