There has been a lot of dilemma around the concept of capital punishment or death penalty in other words. Lex Witness presents an insight into the various aspects around the concept with Mr. Pankaj Garg, Founding Principal Consultant, Prakash Legal Advisers with an inspiration from Late Professor O.P. Garg.
In the society as well as in the judicial system, many thoughts, debates and representations have been made w.r.t capital punishment whether to sustain it or to abolish it. Many social activists, jurists, judges and advocates have expressed their individual and collective views with regards to the capital punishment. Here through, this article I am also trying to deeply analyse the various and different approaches for the capital punishment. For the sake of the understanding and clarity, different approaches are being classified and being discussed separately.
Under the Indian legal system, the capital punishment for the heinous crimes is available under the provisions of the Indian penal code by not infringing the fundamental right to life and personal liberty under Article 21 of the Indian Constitution.
Here, it is very much necessary to refer a Universal Declaration of the human rights adopted by the United Nations General Assembly in December 1948 recognising each person’s right to life. The Article 5 of the Universal declaration of the human rights embodies that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In amnesty international view, the death penalty violates these rights. The community of states has already adopted 4 international treaties specifically providing for the evolution of the death penalty. Through the years, several human bodies discussed and adopted measures to support the call for the worldwide abolition of the death penalty.
In December 2007 and 2008, the UN General Assembly adopted resolutions 62/149 and 63/168 calling for moratorium on the use of the death penalty. Since then, other regional bodies or civil societies’ coalitions adopted resolutions and declarations advocating for moratorium on executions as a step towards global abolition of the death penalty
It is pertinent to mention here that, India was amongst the 39 countries that voted against a UN General Assembly draft resolution for the abolition of the death penalty in the UN General Assembly’s 3rd Committee on Capital Punishment. Thereason of casting the vote against the abolition of the death penalty by India was that each state has the sovereign right to determine its own legal system.
Here I am deeply analysing the stand taken by India in casting the vote against the abolition of the death penalty, the Universal Declaration of the Human Rights in the UN General Assembly was duly accepted by India as being recognising the human rights as paramount. Then, taking the stand of the right of a sovereign state has only an academic approach not the philosophical and the sociological approach. Every state under the UN General Assembly is a sovereign state and assemble there for the human rights which are considered over and above a sovereign state.
Every sovereign state makes the law on the basis of the various schools of jurisprudence including the natural law which advocates and supports the human rights. Further to strengthen my views I would like to discuss the supremacy of law in any sovereign state and command whether under the democracy or other political systems, is the representative of the people. Since capital punishment is a matter in rem therefore, a sovereign state has to adopt a collective approach but not an individualistic approach. Therefore, for framing a law on the abolition of the capital punishment a sovereign state has to see various sectors – internal as well as external. Since when the question of the involvement of the human race, then the supremacy of the international law and the resolution amongst the nations stood over and above the state laws. The position under the simplicity may be understood in a manner the larger need of the society prevails at the time of the making of the law by a state and in case of an international issue the larger interest of the international society is a binding factor upon the law making body of the state.
The Hon’ble Supreme Court of India in a recently decided case ShatrughanChauhan vs. Union of India seeks to correct the reemergence of death penalty by commuting death of 15 convicts. The apex court of India mostly and regularly expresses the views in favour of the abolition of the death penalty even when it is enacted.
In December 2007, India voted against the UNGA resolution calling for a moratorium on the death penalty and in Nov 2012 again upheld its stance on Capital Punishment voting against the UNGA draft resolution seeking to ban death penalty.
In my views the stance of a state must be clear with regards to the death penalty and a human right towards life. It is a neither spiritual nor philosophical but relates to the inner core of the consciousness that if a heinous crime is committed then that crime to the state can it be compensated only by way of capital punishment for giving the relief to the victim or the society or to give a message to the society. If it is a relief to the victim or the society it seems more like a judicial revenge and if it is a message to the society it can be given by formulating the various modes of punishment other than the capital punishment. The matter requires a rigorous debate to resolve the repugnancy between the human right towards life and right of sovereign state.
The approaches under the philosophy also play a key role in deciding this debatable issue of abolition of the capital punishment. If it is thought from the point of the destiny which is in the hands of the Almighty, it can be said that the criminal was not born as a criminal. It is the effect of environment and the society which played a key role in blossoming a person as a criminal. The Theory of Lamarckism – a great biologist clearly suggests the effect of the environment on the development of the genesis of an individual. I also wish to connect the Theory of Darwinism with the civilization of the human race and effect of environment on the behaviour of the human being. One of the great zoologists quotes,
“Manav nahn utpann hua, akshnath Ishwar se, Yeh to viksit hua hai, Yug Yug ke parivartan se”
I wish to let the world know about the great philosopher Plato’s last say from his masterpiece of art i.e. The Symposium 207D-E: “Yet though man is called the same, he doesn’t at any time possess the same properties: he is continuously becoming a new person and there are things also which he loses as appears by his hair, his flesh, his bones and his blood and body altogether. Which is not only of the body but also of the soul who’s habits, tempers, opinions, desires, pleasures, pains, fears never remain the same in his particular self as something grows in him while other perish: and equally true of knowledge and what is still more surprising to us mortals, not only do the sciences in general spring up and decay, show that in respect of them we are never the same: but each of them individually each of them experiences a like change”
The venture to suggest that by pointing to this perfect word Plato would have assented that capital punishment would not be needed while in the hair and now its imposition with utmost caution, albeit as an exception to the rule could be necessary for the benefit of the incurable offenders and also for the production of the virtuous who would then be able to fulfil their full potential.
I would like to attract the attention of the philosophy of Plato in real sense isfollowing the philosophy of Lord Krishna in Bhagvad Gita. Lord Krishna focused:
“Aatma amar aur ajar hai aur sharer nashvar hai” The shlok in the Bhagvad Gita reads as: “nainam chindanti sastrani, nainam dahati pavakah, na caiman kledayanty apo, na sosayati marutah”
“Lord Krishna said, the soul can never be cut to pieces by any weapon, nor be burnt by fire, nor moistened by water, nor withered by wind” (Bhagwad Gita Chapter 2 Verse 23)
Thus all the philosophers almost have followed a theory for the immorality of the souls and the morality of the body. Supplementing the views of Lord Krishna, I would like to say the Father of Philosophy, the great philosopher Plato supplements that the body subject to changes by the process of the time and therefore soul plays an important role in the changes of the behaviour and character of a particular person.
In the Vedic religious system, in my views, under Vedic system souls have been classified as Aatma, Mahatma, Parmatmaand Pretatma. A newly born person is not born only with Aatmaand not with the other forms of the Aatmas. It is only the process of the society and environment which effects the soul and designs for any forms of Aatmas. Thus concluding, if a criminal dies without the purification of the soul will never get the Mukti as envisaged in our DharamShastratherefore in my opinion one must be allowed to die his natural death and the punishment be imposed of such type up to any extent just to compel the criminal for making a Paschataap. Thus this proposed theory of soul whose origin can be traced from SrimadBhagwad Gita plays an important role in deciding the abolition or retaining the capital punishment. The soul many derivatives like conscious, moral etc. And due to paucity of space I am restricting my pain here in and forwarding further.
Advocating the theory of philosophy if the Chapter 4 of “From Darkness to Light” written by Osho (AcharyaRajnish) is not discussed. A question was caused by Osho, would you please comment on the death penalty? Osho replied,
“Death penalty is a degrading proof of man’s humanity to man. It shows that man is still living the barbarous age. Civilization still remains an idea and it has not become a reality.
Death Penalty is so idiotic that you will have to look at all the aspects to understand why such an idiotic thing has continued in all the civilizations, cultures, nations. Even in a few countries where it was dropped, it has been adopted again.
The first thing to remember is that death penalty is not really a punishment. If you cannot give life as a reward you cannot death as penalty. It is a simple logic and cannot have two points about it. If you cannot give life to people what right do you have to take a life?
In Chapter 4 itself, Osho again expresses that if murder is wrong then whether it is committed by the society or man it makes no difference.
I want to get it recapitulated that in the Indian Legal History, Raja Nand Kumar’s trial is taught to the students as a judicial murder.
Osho also expresses the remedy for the heinous or other crimes by expressing, “Mad people need methods of meditation so that they can come out of their madness. The criminals need psychological help, spiritual support”.
I want to use these lines in support of my views for the purification of the soul to bring convert a criminal into a noncriminal.
Now am discussing the various religious approaches under the different religious faiths on the issue of the death penalty. Since in the human community, every human reposes faith in a particular religion therefore in a society and social system religion plays a key role in formulating and implementing the laws.
Various saints and muniswho are the mentors of the Hindu religion have already expressed their views on the capital punishment. Sri.Jagdish Muni, Head of SantMandal Ashram, Haridwar, in October/November/December 2006 Article, “Capital Punishment – Time to Abandon it” published in Hinduism on 26.08.2008 stated, “Scriptures speak both for and against the system of capital punishment. The scriptures give the ruler or the government, the power to use capital punishment. However, the sants and mahatmas do not believe in Capital Punishment. They believe in reforming people. There are a large number of instances where saints have reformed criminals in some cases so much so that the reformed people themselves became sants.
Here, I want to get recapitulated the life history of Bhagwaan Valmiki who was the original writer of Ramayana in Sanskrit. He was a dacoit and later on became a person who enlightened the whole world.
However, there is a repugnancy amongst the Hinduism beliefs itself on the issue of the capital punishment.
Parmatma Nand Saraswati, Coordinator of The Hindu Dharm Acharya Sabha in October/November/December 2006 Article, “Capital Punishment – Time to Abandon it” published in Hinduism stated,
“Capital Punishment is allowed under Hindu traditions. Lord Rama is the embodiment of Dharma, yet he killed King Bali, who had stolen his own brother’s wife. Sometimes I feel that the crimes today are even more heinous than in the past. Hence Capital Punishment if sanctioned by the scriptures should continue.”
Srila Prabhupad, Founder of the ISKCON, also known as the Hare Krishna Movement, in his 1968 book Bhagwad Gita as It Is wrote,
“It is supported that a murderer should be condemned to Death so that in his next life, he will not have to suffer for the great sin he has committed. In human society, if one kills a man he has to be hanged to death, which is the law of a state.
The Vishnu Smriti – An ancient law book of the hindus as translated by Julius Jolly and printed in 1880 as the seventh volume of the separate books of the east collection stated,
“Great criminals should all be put to death. Let the King put to death those who forge royal addicts and those who forge private documents, likewise, poisoners, incendiaries, robbers and killers of women, children and men.”
Swami Samvida Nanda Saraswati, Head of Kailash Ashram, in October/ November/December 2006 Article, “Capital Punishment – Time to Abandon it” published in Hinduism stated, “Hinduism is full of compassion and forgiveness. Leave aside human beings, we are supposed to be kind even to insects as well as animals. Therefore, taking a life of a human being is a very big issue for us. Our Hindu Dharma is very clear that use of violence againstanyone is not allowed. Any other type of punishment may be given but we should not take anyone’s life. Our scriptures and Vedas do not favour capital punishment. They advocate the principals of non – violence.”
T Kumar, LLM, Amnesty International, USA’s Advocacy Director of Asia and a practicing Hindu in an October 2012 interview for Amnesty International’s Faith in Action Online event state, “Since the faith basically revolves around nonviolence and no revenge as well as not hurting any living organs including eggs, or fish or meat eating because it hurts. You have to kill something to eat, so even that has been prohibited, so from that perspective Hindus can safely assume that the Hindu religion opposes death penalty in a very fundamental way. Since we are not an organized religion there is no hierarchical power to define right or wrong. We as Hindus have to unite and say that we are opposed to death penalty.”
Mahatma Gandhi, LLB, Former Indian Religious and Political Leader, in his book Third Class in Indian Railways; wrote “By birth, I am a Vaishnavite and was taught Ahimsa in my childhood. In its negative form it means not injuring any living being whether by body or mind. It may not, therefore, hurt the person of any wrongdoer, or bear any ill-will to him and so cause him mental suffering.
Here, for the sake of description 2 instances of Mahabharata are being remembered where Lord Krishna’s act shows the degree and the highest degree of forgiveness towards capital punishment.
In the first instance, Shishupal was warned by Lord Krishna and on his 100th sin, he was killed by the sudarshan chakra. And in the second instance, even after the conclusion of the battle of the Mahabharata, the crime committed by Ashwathama was not to be pardoned and was subject to capital punishment as he used the Brahmastra to finish the whole world alike of a nuclear explosion of today. But Lord Krishna did not provide thecapital punishment and awarded him the punishment of not getting the mukti from his sinful life.
The Buddhist Peace Fellowship, a California based Buddhist social activist organization wrote the following in an October 2006 article, posted to its website titled, Buddhism and Death Penalty stated,
“As engaged Buddhist, we believe that social and personal transformation are always possible. And that even wounded people can change contribute to life.
We believe that capital punishment not only fills to serve as deterrence to violence and murder, but that it nourishes the seeds of violence that exist within each of us
We believe that there is no fear or practical way to arrive at a sentence of death.
To continue with capital punishment in its present state means that more innocent people are bound to die.”
Tenzin Gyapso, the 14th Dalai Lama wrote in his statement titled, Message Supporting the Moratorium on the Death Penalty,
“The death penalty fulfils a preventive function but it is also very clearly form of a revenge. It is especially severe form of punishment because it is so final. The human life is ended and the executed person is deprived of the opportunity to change, to restore the harm done or compensate for it. Before advocating execution, we should consider, whether criminals are intrinsically negative and harmful people or whether they will remain perpetually in the same state of mind in which they committed their crime or not. The answer I believe is definitely no. However horrible act they have committed, I believe that everyone has the potential to correct themselves. Therefore I am optimistic that it remains possible to deter criminal activity and prevent such harmful consequences or such acts in the society, without having to resort to the death penalty.”
In the official website of the Church of Jesus Christ of latter-day-saints it was published on 25.07.2008 that:
“The Church of Jesus Christ of latter-daysaints regards the question of weather and in what circumstances the state should impose capital punishment as a matter to be decided solely by the prescribed processes of the Civil Law. We neither promote nor oppose capital punishment”.
The Assemblies of God (USA), one of the largest Pentecostal denominations in the United States, in an Article on its website titled “Capital Punishment (accessed July 28, 2008) and written by the Church’s General Council, stated
“Opinion in the Assemblies of God on Capital Punishment is mixed. However, more people associated with the Assemblies of God probably favour Capital Punishment for certain types of crimes such as premediated murder then those who would opposed Capital Punishment with reservation. The consensus grows out of a common interpretation that the Old Testament sanctions Capital Punishment, and nothing in the New Testament negates maximum punishment as society’s means of dealing effectively with serious crimes.
There is room in the Church for honest differences of opinion concerning the use of Capital Punishment. However, all believers should seek to apply biblical principles in reaching their conclusions”.
Billy Graham, Board Chairman – Evangelist, Billy Graham Evangelistic Association (BEGA) in an article titled “The Power of the Cross”, published in April 2007 issue of decision Magazine wrote: “To gain a clear understanding of God’s attitude towards sin, we only have to consider the purpose of Christ death. The scripture says, without shedding of blood there is no remission. Here is a positive statement that there can be no forgiveness of sin unless our debt has been paid. God will not tolerate sin. He condemns it and demandspayment for it. God could not remain a righteous God and compromise with sin. His holiness and his justice demand the death penalty.”
Recently southern Baptist convention, in a June 13-14, 2000, meeting in Orlando, Florida, approved a resolution that stated
“Therefore be it resolved that the messengers to the southern Baptist convention support the fair equitable use of Capital Punishment by Civil Magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death”.
The Catholic Church in the June 21, 2001 “Declaration of the Holy See to the First World Congress on the death penalty”, wrote:
Where the death penalty is a sign of desperation, civil societies invited to assert its belief in a justice that salvages hope from the ruin of the evils which stalk our world. The universal abolition of the death penalty would be courageous reaffirmation of the belief that human kind can be successful in dealing with criminality and our refusal to succumb to despair before such forces, and as such it would re generate new hope in our vary humanity”.
In my views there is a difference of opinion amongst the various religious sectors of the Christianity. Some sectors supports the Capital Punishment and some are against the Capital Punishment. Here my attention is on the declaration of human rights in UN General Assembly in 1948, wherein under Article 5 Capital Punishment is barred as a human right, while all the views of Christianity Religion comes mostly from the Western Part of the World and even as on date the Christianity religious sectors are having the different views.
The Quran, in a 1983 translation by M.H. Shakir and hosted online by the University of Michigan (accessed July 25, 2008), contains the following two references to a death penalty:
“(5.32)…whoever slays a soul, unless it be for manslaughter or for mischief in the land, it is as though he slew all men, and whoever keeps it alive, it is as though he kept alive all men; and certainly Our apostles came to them with clear arguments, but even after that many of them certainly act extravagantly in the land.
(6.151)…do not kill the soul which Allah has forbidden except for the requirements of justice; this He has enjoined you with that you may understand.”
The British Broadcasting Corporation (BBC) wrote in its fact sheet “Islam and Capital Punishment” dated June 23, 2005, that:
“Muslim countries vary in the extent to which they practice capital punishment, though all retain it at present.
Islamic countries that practice a very strict Sharia law are associated with the use of capital punishment as retribution for the largest variety of crimes.
At the other end of the spectrum are countries such as Albania and Bosnia, which still retain the death penalty as part of their penal system, but are abolitionist in practice.”
Understanding Islam, a website dedicated to educating the public about Islam, stated the following in its article, “Regarding the Death Penalty,” published on www.understanding-islam.com (accessed July 29, 2008):
“According to the Islamic injunctions, death penalty can be administered in two cases only. Firstly, if a person is physically harmed or injured by another, Islam directs the state to provide justice to the individual (or his relatives) by letting him/them harm or injure the guilty to the same extent, as he himself was guilty of harming his victim, in the first place. This concept of punishing the guilty is known as ‘Qisaas’, which means ‘to follow suit’ or to deal with the criminal in a manner similar to the act originally committed. In other words, the criminal is to be killed or injured in the same way as he himself killed or injured his victim.
Secondly, the death penalty may be administered if the criminal is guilty of ‘Hiraabah’ or ‘FasaadfilArdh’. ‘Hiraabah’ and/or ‘FasaadfilArdh’ include crimes committed against the community, rather than an individual or crimes that are of the nature of religious persecution or crimes committed with the objective of spreading a wave of terror through the community or crimes committed against the state…”
KhaledAbou El Fadl, Professor of Islamic Law at the UCLA School of Law, in a Jan. 25, 2002 conference hosted by the Pew Foru, titled “A Call for Reckoning: Religion and the Death Penalty,” stated:
“In the Koranic discourse, beyond the story of Cain and Abel, we find that there are various articulations and pronouncements directed at murder and punishment, but not necessarily mandating execution or the death penalty as a recourse…
When it comes to talking about the ultimate punishment, capital punishment, it talks about intentional murder there are three options. One option is that the family of the victim would demand compensation… a sum of money in compensation… The second possibility is that the family of the murderer demand exaction, i.e., then the offender would be killed. And third is to forgive … And it’s quite interesting here, the Koran goes on to say, in the same verse in which it endorses the three part structure, it says, and those who forgive are higher in the sight of God.
Because God has decreed this area to be God’s own, the area of life and what happens when a life is taken away, if you, in fact, punish with the ultimate punishment, the death penalty, you must prove the case per the ways that God has decreed that you prove these cases. Otherwise, you cannot implement the death penalty. And what this amounts to was effectively saying that what is required in order to implement the death penalty is a level of certainty, of evidence, that is quite impossible to fulfil.”
Rabia Terri Harris, Coordinator of the Muslim Peace Fellowship, wrote in her article “Islam and the Death Penalty,” published on www.amnestyusa.org (accessed July 25, 2008):
“An Islamic opposition to the death penalty must begin by acknowledging that the Qur’an may clearly be read as giving special exemption (from the general prohibition on killing) to the taking of murderer’s life…
Those who favour the death penalty therefore cannot be considered as beyond the pale: we must accept the faithfulness and validity of their opinion…
The responsibility of a Muslim is justice. Will the killing of a murderer produce justice…
We can measure whether it does or not by examining the state of public trust. In the US, the following facts have been established… Nearly 90% of persons executed for murder were convicted of killing whites, although people of colour make up over half of all homicide victims nationally…(and) 90% of the people US government prosecutors currently seek to execute are black or Latino…
There is no justice here. No needs are met, no fear is alleviated. This idea does not work. The hallmark of truth is that it works…
It is a far more serious error of Islamic ethics to demand a human death in circumstances when there are doubts about guilt or innocence, where the bereaved are not consulted about their wishes, and when the penalty is selectively applied based on the pernicious fantasy that some lives have more value than others. Islamic law, and Islamic taqwa, demand that we dissent from such a travesty of justice.”
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