Saturday, December 1, 2018

Dinesh Kamath's Editorial 'Capital punishment should be abolished???' that was published in Newsband


Capital punishment should be abolished???
Justice Kurian Joseph has presented his views on abolishing capital punishment. He has re-ignited a debate. The law laid down in Bachan Singh (1980), upholding the validity of the death penalty and laying down guidelines for awarding death in ‘the rarest of rare’ cases’, still holds the field. The world is increasingly questioning the wisdom of capital punishment. Justice Joseph has underscored the arbitrary manner in which it is awarded by different judges and the way public discourse influences such decisions.
The constitutional regulation of capital punishment has failed to prevent death sentences from being “arbitrarily and freakishly imposed”. The maximum sentence that may be imposed usually revolves around the nature of the crime, its gravity and cruelty, and the number of fatalities. Theories of punishment are based on whether it ought to be punitive, retributive, reformative or restorative. If there still prevails a perception of arbitrariness in the way death sentences are awarded, the only lasting solution is their abolition.
But a smaller fraction of human rights activists, since long time have been demanding repeal of death sentence. Absolutely no doubt, death sentence could be used as a last resort and with extreme sense of responsibility, in order to control heinous crimes. But, to repeal it totally would mean encouraging criminals to do any degree of heinous crimes against helpless citizen and get away with so easily because Death penalty has been abolished?
Our legal elites may have a perception about the arbitrariness of the death penalty. Ordinary people don’t share in this perception. The judiciary and the law commission have historically shown very little sympathy for the victims. The Nirbhaya case continues to drag on because of the delays in the Supreme Court and now it’s stuck waiting for them to hear the case yet again. We should also remember that there is no such thing as a life imprisonment. Furthermore, even if a criminal is convicted, they are frequently paroled for a wide variety of reasons. To abolish the death penalty will be yet another confirmation that the judiciary has very little interest in providing justice to the victims or their families.
Gandhi dreamt of a Ram Raj where a woman bedecked with jewelry could walk safely in the dead of night peacefully, unmolested by anybody for that matter. Is it there? Is it likely to be there? In that case the state withers away and there is no need for capital punishment. With social sanction relegated to oblivion, fear of punishment appears to be the only deterrent available to keep in check from the marauders, robber barons to petty thieves. As is known when the disease becomes severe the treatment has to be severe including surgical removal. More the society sinks deep into the mire more severe should be the punishment. Either the society must aspire and reach Gandhian heights or must seek practical measures to build an orderly society. Capital punishment may be the last resort. Many other contributory factors must be brought into play their expected roles in every branch of the governance paraphernalia and even social life and the capital punishment may become redundant.
A question has been directed to those who oppose capital punishment. Should we have kept Ajmal Kasab alive and fed him biryani at the taxpayers' expense? In fact, our only regret with our execution of Ajmal Kasab is that we could only execute him once.

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