The march of history has been from more brutal and violent societies to more humane, inclusive and less violent societies; and from authoritarian to democratic states.
The objective of punishment awarded by the society to the delinquents and non-conformists too evolved from that of retribution to deterrence and reformation of the delinquent.
According to “Rational Choice Theory”, objective of any punishment should be deterrence rather than retribution.
Punishments inflicted by the state during ancient times and medieval period included boiling to death, feeding to hungry lions, flaying, slow slicing, truncating (cutting the body below the ribs and leaving the delinquent to bleed to death), disembowelment, crucifixion, inquisitions, crushing by an elephant, stoning, blowing from the gun, burning at stakes, sawing, decapitation, guillotining, public hanging and firing squad. These are by no means an exhaustive list but only indicative.
These punishments were administered on those who rebelled against the state, practised a different religion or were dissidents and non-conformists. Galileo, who defended heliocentrism and questioned earth as centre of universe was also tried and inquisitioned for his belief. He, however, retracted from his discovery and submitted himself to the doctrines of the Church.
By 1820 in Britain, there were about 160 crimes (down from 220 crimes during its peak) that were punished by death, including the crimes like shoplifting, petty theft, being in the company of gypsies for one month and strong evidence of malice in a child aged 7–14 years of age. Many crimes punishable by death in fact protected the property of wealth. Henry VIII is reputed to have executed as many as 72,000 people.
In the 19th century, Roman Republic, Venezuela, San Marino and Portugal abolished capital punishment in the years 1849, 1854, 1865 and 1867 respectively.
Attitudes changed by World War II, class barriers came down and people felt sickened by the holocaust of Nazi Germany. In 1948, the United Nations issued the Universal Declaration of Human Rights and this was adopted by Britain in 1950. The last execution by UK was in 1964.
The Labour Party Government of Harold Wilson suspended death penalty for five years through an enactment in 1965. House of Commons reaffirmed its decision to abolish capital punishment for murder in 1969. On December 10, 1999, International Human Rights Day, UK ratified Second Optional Protocol to the International Covenant on Civil and Political Rights, thus, totally abolishing capital punishment in Britain.
Sanctity of life
With the strengthening of democracies, there was increasing culture of tolerating dissent and differences. Sanctity of life is increasingly accepted and believed that society did not have the right to take away anyone’s life. Eye for an eye will make the whole world blind said Gandhiji. Collective conscience of a society should not be blood thirsty. There is increasing realisation of a possibility that person condemned to gallows could be under some mistake. Once executed the mistake cannot be corrected.
In 20th century, Australia abolished capital punishment in 1973, Canada in 1976, France in 1981. In 1977, UN General Assembly affirmed in a formal resolution that it is desirable to “progressively restrict the number of offences for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.”
On November 20, 2012, UN General Assembly’s Third Committee voted in support of its fourth resolution for a moratorium on the use of death penalty with a view to abolishing it. Nine-one member states sponsored the resolution, and was approved with 110 votes in favour, 39 votes against and 36 abstentions. India voted against the resolution.
The world is slowly moving towards abolition of death penalty or moratorium on its use. Two-thirds of the countries have abolished death penalty or have ceased to apply it. In most Latin American countries, in Argentina, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Panama, Peru and Uruguay, Venezuela. In Europe – Australia, Belgium, Denmark, Germany, Italy, the Netherlands, Norway, Sweden and Switzerland, Iceland, and many of the States in the United States of America, have abolished death sentence. Death penalty is considered to violate human dignity.
However, 60 per cent of world’s population lives in states where capital punishment is on their statutes, including China, India, US and Indonesia – the four most populous states. Fifty-eight countries actively practise, 97 countries have abolished it and the rest have not used it for 10 years, or used it in exceptional circumstances like wartime. Article 2 of the European Union Charter of Fundamental Rights prohibits use of capital punishment.
Abolition and after
There is no evidence of any increase in crimes after abolition of death penalty. In Greece banditry decreased after it ceased to be punishable by death and in Canada instances of rape decreased after abolition of death penalty for the offence. In England, there was no increase in crimes which ceased to be capital murders under the Homicide Act of 1957.
In the year 2011, 21 countries recorded executions, as compared to 31 countries 10 years ago. China executed maximum number of people, though China recently eliminated death penalty for certain economic crimes and reintroduced mandatory review of all death penalty cases by the Supreme People’s Court. Drugs, homosexuality and terrorism are issues on which some countries are expanding the scope of death penalty.
Abolitionists and retentionists for capital punishment argue for and against death penalty on many grounds. Generally, the right wing nationalists who are ideologically oriented to building an authoritarian state and retaining hierarchical order tend to be retentionists. Investigators and Prosecutors in criminal justice system too tend to be retentionists hoping that capital punishment would act as a deterrent.
Whereas those ideologically oriented towards building a more humanitarian society with emphasis on equality, equity and social justice tend to be abolitionists. They argue that as inequities and injustices increase, so do crime, irrespective of retributive punishment.
Cruelty in punishment
The person perceived as cruel criminal by a section could be fighting for justice and become a hero for others and any cruelty in punishment makes such a person a bigger martyr to be emulated by others.
Therefore, cruelty of punishment alone could not be burdened with deterring crime. It is a just and equitable society where compassion for a wrong doer is a value and reformation is an objective that reforms the criminal. Reformed criminal is a louder and clearer message to deter crime.
Disproportionate number of people from marginalised sections of the society – poor, ethnic and religious minorities and lower castes are handed down death penalty. For example, 41 per cent of death row inmates and 34 per cent of those executed in US are African Americans though they constitute 12 per cent of US population.
To conclude, death penalty and legal execution of any human being brings out worst retributionist sentiments and violent animal instincts of a society evident from the interviews of ordinary people on TV after execution of Kasab. The sooner the world is free from such basal instincts, the better.
(The writer is Director, Institute for Peace Studies, and member of All India Secular Forum.)
- #India- Supreme Court asks Govt-Why not abolish mandatory death penalty? (kractivist.wordpress.com)
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- A day before Kasab’s hanging, India voted against abolition of death penalty at UN (kractivist.wordpress.com)