Capital punishment has been the subject of vociferous debate in the international arena for some decades now. Capital punishment has existed in almost all societies from the very germination of human civilization. With the application of this retribution sometimes imbalanced against the severity of the offence, the brutality of the method of execution varied, and the social status of the guilty played a vital role in the judicial sentencing.
But as democracy evolved in the west, as feudalism began declining in many cultures, and as the perception of the human rights of the convict gained consideration, humanitarian views toward the most extreme penalty were incorporated into the practice of jurisprudence in many societies over time. Inevitably, crucifixion in ancient Rome dwindled into history, execution as a tool of the Inquisition in Europe faded into a mere part of ecclesiastical tyranny, and death by strangulation as practiced in Tang China ceased to exist.
On March first, Governor Martin O’Malley’s bill to repeal Maryland’s death penalty survived an early test as supporters turned back an amendment that would have allowed executions to continue in some cases. The Maryland Senate paused its debate on the bill that would make Maryland the 18th state in the nation to eliminate the death penalty after advocates of repeal won a key test vote.
Because the US is a democracy with a federal constitution, capital punishment laws are controlled by the individual states. But despite being a union of independent nations, the European Union has abolished the death penalty everywhere except in Belarus. Even in the case of the US, the statistics of executions carried out across the states vary, but there has been a strong postulate from the opponents of this ultimate penalty for a nationwide moratorium. Islamic countries on the on the other hand, never hesitate to execute alleged criminals on charges such as apostasy, heresy and blasphemy in accordance with Sharia’h law, which violates the spirit of the Universal Declaration of Human Rights adopted by the UN in 1948.
In modern times, execution methods differ from country to country. Electrocution, lethal injection and the gas chamber are widely used in US, while shooting is employed in China and hanging is preferred by a long list of countries, including India, Japan and Iraq. Human rights advocates observe that Islamic countries such as Saudi Arabia and Iran use the most inhumane, cruelest and barbaric methods of execution, including beheading and stoning to death.
Death penalty statistics vary from nation to nation as well, with China leading the world in executions, Saudi Arabia being the capital of the decapitating world and with some countries limiting it to heinous crimes and war criminals.
All that said, nobody can expect autocracies and theocracies to alter their stance on capital punishment, but the law and praxis persisting in two countries, Japan and India, two prominent world democracies, are extremely disquieting. Japan incarcerates convicts in death row and deprives them of rights and facilities available to other prisoners. The condemned are informed of their execution just hours in advance; their identity is not disclosed, and the sentence is carried out when the Diet is not in session so that any possibility of debate is avoided.
Even though the number of convicts executed in India is relatively minimal compared to Japan, the agony and anguish of the Indian convict is no better.
Aside from the legality of the death penalty, execution of a convict in India is a long, time consuming process. According to the Indian Apex Court ruling of 1983, the death penalty should be imposed only in the “rarest of the rare cases, but without defining or explaining which cases are “rarest of the rare,” leaving the decision solely to the discretion of the trial court.
By Indian law, once someone is sentenced to death by the trial court which in most casesmis a district court, it must be approved by the concerned High Court. Once approved by the High Court the convict can appeal to the Supreme Court of India. If the Supreme Court still rules that the convict deserves death, he or she can submit a clemency petition to the President of India or the Governor of the concerned state or Union territory, all of whom have the power to fully or partially grant pardon. The convict still enjoys the privilege of a judicial review.
The Indian judicial system is infamous for its delay in proceedings. Years will have elapsed by the time the Apex Court upholds the death sentence. Ever since the trial court awards the maximum penalty, the convict will have to spend his life in solitary confinement with no idea of when there will be a final decision.
Notwithstanding the holdup from the side of the judiciary in upholding the death penalty, the time that the clemency petition waits for the presidential decision, whether acceptance or rejection, is a more serious concern, because there is no time frame for it set by the Indian constitution, and it can be days, months, years or even decades. Even if the clemency petition filed by the convict is rejected by the president, it is up to the authorities to decide when the condemned walks to the gallows, adding further to the distress of the convict.
In the last four months, India executed two people on death row, Ajmal Kasab and Afzal Guru, the former, the only man captured alive by the Indian security forces during the Bombay terrorist strikes of 2008 and the latter, a conspirator of the terror attack on the Indian Parliament in 2001.
The way both were executed is unprecedented; the timing of the execution was neither properly disclosed to their families, nor were the families granted time enough to decide on whether to take over the convict’s body as mandated by Indian law. Their bodies were buried in the prison premises.
Many legal experts are of the opinion that both these convicts went trough a thorough judicial and legal process and that justice was done. But the secrecy surrounding the executions has raised many eyebrows. In the case of Ajmal Kasab, it has been pointed out that that he was not granted the right of a judicial review. The government washed its hands, saying that the maintenance of secrecy surrounding the executions was for the sake of public safety and for law and order concerns.
Following these two recent executions, the dismal state of the rule of law in India has been center stage in the public discussion, especially vis-à-vis capital punishment. How much time will the condemned has to spend in solitary confinement? It is remarkable that unlike his predecessors, the current President, Pranab Mukherjee, is not shying away from making decisions on mercy petitions, causing a New York Times blog to call him India’s Mr. Death.
Inmates on death row in India currently include the three assassins of the former prime minister, Rajive Gandhi, and all three of them have been in hotbox for the last twenty two years. Even the judge who headed the Supreme Court bench which upheld their death penalty was of the view that hanging them would be tantamount to punishing them twice for the same offense. So, regardless of whether or not India abolishes capital punishment, she has to speed up the judicial and governmental procedures to wrap up decisions on atrocious crimes.
In conclusion, capital punishment has been opposed mainly on the grounds that the penalty is irreversible in the case of the conviction of an innocent defendant, and many countries have abolished capital punishment for that reason. Religious views on capital punishment are inconsistent and contradictory and are not worthy of mention here. Heinous crimes such as genocide, rape and terror may justify this extreme punishment, but the defendant’s human rights have to be kept in mind. But if the world cannot expect from democracies like Japan and India, forget authoritarian regimes, the respecting of rights, where is the last resort for the protagonists of human rights?