The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
The concept of the death penalty emerges from the idea that death is the penalty for offenders after being convicted by a Court of Law for certain criminal offenses. While these offenses vary around the world, the abolitionist movement either abolished it permanently, temporarily or re-instated it began in Venezuela in 1863. As of 2020, there are about 105 countries that have completely abolished the death penalty.
This inefficacy of the death penalty is influenced by various factors – the surveys, studies and law reports published in various jurisdictions including Amnesty International, Human Rights Committee, Project 39A, etc. and often emphasize the following arguments:
Contents hide
1 Human Rights and Morality- No human life shall be taken, including that of the criminals.
1.1 Jurisprudential and Theoretical
2 The death penalty does not contribute to penology, not an effective deterrent.
3 Not reformative or rehabilitative
4 Counterproductive in retribution
4.1 Crimes that are not Homicidal
6 Judicial bodies and the inability to perfect fair, equitable, and reliable outcomes.
With the emergence of modern nation-states through concepts like Social Contract Theory, natural and legal rights, the scholars of criminology, and jurisprudence were of the idea that punishment is a form of deterrence rather than retribution[1]. The Rational Choice theory and modern utilitarianism[2] contributed vastly to the idea that the death penalty should be abolished since it did not contribute to reformation.
The human rights angle is applied by establishing how the death penalty entails cruel, inhuman, and degrading treatment in violation of international law – where its cruelty starts before the actual execution when the condemned person is caught in a terrifying limbo
between the fear of imminent death and the faint hope that appeals for due process or clemency could spare his/ her life. Despite the UN moratorium on the Death penalty,[3] it is not prohibited by the ICCPR[4] or any other virtually universal international treaty.
These jurisprudential and theoretical approaches that tout the concept of how nobody including the state has the right to take away another’s life regardless of his action overlooks that Locke’s concept of social contract theory[5] emphasizes that the state cannot take away from its people their natural rights, and can only punish for things that deserve punishment in the state of nature. The rule is that the concept of the right to life inherent with an individual can be forfeited when he violates that of another.[6] Ironically, the argument of the right to life is obliterated when states retain the death penalty for higher crimes such as waging war and military crimes.[7] Despite this, various laws do consider the humanitarian aspects by excepting the disabled[8], the elderly, the children[9], and pregnant women[10] from the death penalty.
In the study[11] published in the Journal of Criminal Law and Criminology, the researchers concluded that a vast majority of the world’s top criminologists believe the deterrence hypothesis for the death penalty to be a myth. However, while to an extent, it is agreeable that the death penalty may not have a deterring effect than life imprisonment; there is no evidence to conclude that the abolitionist states have had a decrease in crime nor have the retentionist states shown an increment in crime.
In a 1973 analysis, it was concluded that for every inmate that was executed, 7 lives were spare owing to the deterrence it creates.[12] The concept of deterrence stems from the idea that nothing shall deter him than what he fears the most and man inherently fears death.[13]
Studies regarding deterrence are often inconclusive owing to how the death penalty is employ only in the rarest of rare cases and the years it takes before an actual execution is carry out. A slow-moving legal system – poor investigation, crime prevention[14], a prejudicial justice system, and the pressure to appease the higher authorities or the mass contribute to excruciatingly long death rows.[15] The counterargument to the allegation of delays in the system is that it ensures that no evidence is overlook and all possible means to establish innocence are exhausted by the accuse before surrendering to a death sentence.
Even though the death penalty does not seek to be reformative or rehabilitative, it is believe that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life.[16] Even though the same is not an argument, in most retentionist judicial systems – the question of reformation is looked into before death sentencing. In fact, the Indian Supreme Court has repeatedly highlighted the importance of remorse as a factor in the computation of the death sentence, mandating that the accused must be shown to be ‘beyond reformation’ to justify the imposition of death.[17]
It has been stated that the death penalty is disproportionate when administer for lesser crimes and if proportionally apply it is legitimizing the very action that the law seeks to repress.[18] However, Immanuel Kant has strongly advocated that loss of life is incomparable to any jail term when dealing with convicts of murder. Similarly, Prof. Robert Blecker[19] believed that the punishment must be in proportion to the crime.
The death penalty for a crime is not determined by how brutal it is[20], rather it is based on various other prongs such as the aggravating and mitigating factors[21], especially when mitigating factors weigh in favor of leniency[22], and if such a case belongs to the category of the rarest of the rare.
In cases of crimes that are neither homicidal nor against the State, the US courts have ruled the death penalty unconstitutional.[23] However, in India, where around 16 statutes prescribe the death penalty for various offenses. In Shakti Mills rape case[24], when faced with the question of the constitutionality of death sentence for non-homicidal crimes, the Bombay High Court held that while there is no question of death, the harm of rape is “destructive of the whole personality of the victim.” This indicates that most retentionist countries have a crime proportionate death sentencing system, with a few exceptions.
The concept of prejudice and discrimination exists even in the most sophisticated death penalty statutes.[25] While the societal approach plays a role, the legal system that warrants the death penalty to these discriminate few is to be blame. There is no proof to indicate that the abolitionist countries have been able to mete out justice without discrimination and the ones serving life sentences do not come from minority backgrounds.
In India, the SC has time and again emphasized the necessity to look into the mitigating factors including what induced the individuals to commit the crime, lack of criminal antecedents, young age, poor socio-economic background, his conduct in jail, and conduct outside jail if on bail, medical evidence about mental make-up, and contact with family, etc.[26]
Regardless of these guidelines, most often the lawyers fail in convincing the court to look into the mitigating factors, and often the punishment is meted out after considering the aggravating circumstance alone. This also brings into picture
The inability of the judiciary to ensure consistency in the cases of death sentencing presents another limitation. This shortcoming, as Justice Bhagwati, mentioned in his dissent in the Rajendra Pralhadrao case[27] can definitely be attributed to the lack of legislative guidelines.
Yet, the strict parameters laid down in the cases of Bachan Singh v. the State of Punjab and Machhi Singh v. the State of Punjab continues to hold water, provide it is strictly adhere to;
While the former requires the court to identify and consider all aggravating and mitigating circumstances that relate to the crime and the criminal, with ‘mitigating circumstances’ necessarily given a liberal and expansive interpretation, it also holds that the extreme penalty of death should only be imposed in the rarest of rare’ cases, where the option of life imprisonment is ‘unquestionably foreclose’. The latter case requires a life sentence to be inadequate and that there exists no alternative but the death sentence, despite according maximum weightage to the mitigating factors. Moreover, in light of the irreversibility of capital punishment,
the ‘residual doubt’ from convictions based on circumstantial evidence should result in commutation of the sentence.
However, the courts continued arbitrary application of this framework,
focused on aggravating and brutality factors of crime,
thus leaving room for the possibility of judicial error.[28]
The current judicial trend towards a restorative and reformative penal system is based on an underlying belief that all men are inherently good and have been victims of circumstances. However, there are situations that warrant the application of the death penalty for the greater good of the country. Life imprisonment, in a country like India,
maybe a path to the reformation for a few, but for the rich and powerful it is merely a safe house to live in until the mass agitation blows over.[29] Various features like bail, parole, clemency, good conduct, etc. destroy the underlying penology vested with life imprisonment.
The death penalty acts as a deterrence provide it is meted out efficiently and effectively following the judicial benchmarks meticulously. Life imprisonment is not an alternative to the death penalty,
when the former is the rule, the latter is an exception. In this struggle towards a restorative justice system, the death penalty acts. As a viable option to eliminate those existences which will deteriorate society. And ease the burden on the already overcrowded incarceration system. The current form of the death penalty and its system remains fraught with arbitrariness, discrimination, caprice, and mistake. The alternative to the same is a death penalty with structure guidelines. Proper sentencing policy, and adjudge on a case-to-case basis. Thus, the death penalty must continue to be impose “fairly, and with reasonable consistency, or not at all.”[30]
[1] Marcello Maestro, “A pioneer for the abolition of capital punishment: Cesare Beccaria.” Journal of the History of Ideas 463 (1973)
[2] Bedau, Hugo Adam, “Bentham’s Utilitarian Critique of the Death Penalty”. The Journal of Criminal Law and Criminology,1033, (1983)
[3] UN General Assembly, Resolution adopted by the General Assembly on 18 December 2007 A/RES/62/149 available at https://undocs.org/en/A/RES/62/149 [accessed 4 October 2020].
[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at https://www.refworld.org/docid/3ae6b3aa0.html [accessed 4 October 2020]
[5] John Locke, Two Treatises of Government, 142 (ed. Thomas Hollis London: A. Millar et al., 1764).
[6] C.L.Ten, Mill’s Defence of Capital Punishment, Vol 36, Journal of Criminal Justice Ethics,141, (2017)
[7] Law Commission, Report 262, 2015, 7.2.4, recommend that death penalty
be abolish for all crimes other than terrorism
related offences and waging war.
[8]Ford v. Wainwright, 477 U. S. 399, Panetti v. Quarterman, 551 U. S. 930.
[9]S.22, The Juvenile Justice Act, 2000.; Roper v. Simmons, 543 U.S. 551 (2005)
[10] S. 416, Code of Criminal Procedure, 1974 provides if a woman sentence to death is found to be pregnant, the High court shall order the execution of the sentence to be postpone and may if it thinks fit,
commute the sentence to imprisonment for life.
[11] Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates?: The Views Of Leading Criminologists, The Journal Of Criminal Law & Criminology, Vol. 99, 489, (2009)
[12] Beyleveld, Deryck. “Ehrlich’s Analysis Of Deterrence: Methodological Strategy and Ethics in Isaac Ehrlich’s Research and
Writing on the Death Penalty as a Deterrent.” The British Journal of Criminology Vol 2, 101(1982)
[13] Ernest van den Haag, On Deterrence and the Death Penalty, Journal of Criminal Law and Criminology, Vol 60, 141 (1969)
[14] Prakash Singh v. Union of India, (2006) 8 SCC 1
[15] Refer State (N.C.T. Of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820, where the death sentence was execute after 10 years of sentencing.
[16]Avery Cardinal Dulles, Catholicism and Capital Punishment, First things (Date accessed Sept 28, 2020, 5:00) https://www.firstthings.com/article/2001/04/catholicism-capital-punishment
[17]Bachan Singh v. State of Punjab, (1980) 2 SCC 684
[18] Ibid 1
[19] Roots “Resolving the Death Penalty: Wisdom from the Ancients.” 169 Articles & Chapters, (2003)
[20]Panchhi v. the State of U.P., AIR 1998 SC 2726; Vashram NarshibhaiRajpara v. the State of Gujarat, 2002 (9) SCC 168; Rajendra Prahladrao Wasnik v. the State of Maharashtra, (2012) 4 SCC 37; M. A. Antony @ Antappan v. the State of Kerala, (2009) 6 SCR 829
[21] Machhi Singh v. State of Punjab, (1983) 3 SCC 470, crystalized the concept of rarest of the rare.
[22]Lockett v. Ohio, 438 U.S. 586 (1978),
[23]Kennedy v. Louisiana, 554 U.S. 407 (2008)
[24]Mohd Salim Mohd. Kudus Ansari v. State of Maharshtra (2019)
[25]Callins v. Collins 510 U.S. 1141
[26] Rajendra Pralhadrao Wasnik v. State of Maharashtra, 2018 SCC OnLine SC 2799
[27] Ibid 17.
[28] Santosh Bariyar v. the State of Maharashtra, (2009) 6 SCC 498; Farooq Abdul Gafur v. the State of Maharashtra, (2010) 14 SCC 641
[29]Sidhartha Vashisht Alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, the convict who was sentence to life imprisonment,
hailing from a powerful background was release 14 years into the sentence on good conduct
Re.- An Unfortunate Incident In Unnao Of Rape And Murder Published In Various Newspapers v. State of UP, 2019; Unao Minor’s abduction and gang rape, where her father was falsely charge with another crime
and die in custody, the car traveling with the victim
It was ramm into by a truck killing her family members, all done by ex MLA.
[30]Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).
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