Retention of Capital Punishment – A distilled view

1. Akin to the Shakespearean dilemma, ‘To Be or not to be’, the debate of retention of Capital punishment is again raging, an after-effect of the Yakub Memon’s hanging (on a charge upheld up to the Curative petition level, where an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition in order to prevent injustice by law, as also yet another pre-dawn opportunity afforded by an Apex Bench). Inexplicably enough, the debate stays placid for indefinite duration till it is time for the convict to meet his final end.

2. Whenever the topic is debated, the protagonists of Human Rights raise the following points. Life being a gift of the Almighty, a human being has no right to decimate it. It would be catastrophic if evidence surfacing post-execution is indicative of innocence of the person executed.

3. The rival mindsets have been straining their vocal chords to hawk their ‘wares’ but each one of them has missed a point which is fundamental to the issue.

4. These premises are flawed to the very core of its foundation. It is not that the execution comes about just like that. The initial conviction is recorded by the Court of Sessions after a regular trial during the course of which full defense evidences are considered too. The recommendation for the Capital punishment is forwarded to the High Court and is heard by a Division Bench. In case of acceptance of the recommendation, the convict can file a Special Leave Petition (SLP) against the orders of the High Court. That (SLP) too would be heard by at least a two-Judge Bench of the Apex Court, which can be followed up by a Review Petition and a Curative Petition, both of which are considered by the judges of the Apex Court. The final judicial determination is thus preceded by adequate grant of opportunity of hearing at all hierarchical levels upto the Apex Court. In the following of that due course of Law, there is no likelihood of any error in the appreciation of fixture of liability of the convict.

5. My experience (as a lawyer) of more than four decades tells me that the extinction of Capital punishment would put the country into a perilous scenario. While certainly not recommending Capital Punishment to be awarded for a mere murder charge, I am of the distilled view that retention of capital punishment is a must for the society. That it should be granted only in cases falling within the ‘Rarest of the rare’ category is a legitimate view with respect to the current societal scenario.

6. A law answering the societal requirement is the best tool for governance. Being oppressed under the yoke of colonialism for a fairly long duration, a large segment of the countrymen is still not liberated from prejudices of religion / caste / region. The trust gap between the establishment and the ‘governed’, as also between the predominant communities, has widened. ‘Flourishing’ sex determination clinics reiterate the pronounced preference for a sex ‘fixation’, thereby adding to the marked decline of the female population. Differences between the rich and deprived have increased beyond redemption. Moreover, Indian youth has fallen victims to the evils of internet.

7. Why else would it appear as if the gang rapes are here to stay? Why else would a spouse forward his/her life partner to the maker in violation of the seven steps taken around the holy fire? Why else would juveniles exhibit demeaning and beastly acts against a woman? Why would the ‘honour killing’ phenomenon persist? The want of fear of law and the ‘ability’ to delay trial by taking advantage of the changes of procedural law appear to contribute to the unceasing disquiet in the society. The level of ‘emboldenment’ of the perverted mindsets cannot even be imagined, if the abolition of Capital punishment were to come about.

8. In my distilled view, Capital punishment must stay on statute book, atleast till our mindsets attain intellectual ‘puberty’.

(The author is Justice SD Anand, a retired Justice of the Haryana and Chandigarh High Court.)

(Image credits: Indiatimes)