Death penalty and terror offences
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This article was written by Sanya Rastogi, a student of National Law University , Odisha.
A. Introduction
“To take a life when a life has been lost is revenge, not justice.”
-Desmond Tutu
Death penalty or Capital Punishment still exists in many parts of the world, India still being one of them. According to Amnesty International report on Death penalty, ‘the death penalty breaches two essential human rights: the right to life and the right to live free from torture. Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948’[1]. The awarding of Capital punishment and Death Penalty has always been in a controversial position, its constitutional validity being challenged at every stage, since rationality became a common quality among the humans. Many countries, after a prolonged debate over its existence, have finally been successful in establishing itself as death penalty free countries.
The Amnesty International provides for the number of countries who still execute death penalty and number of countries have abolished it.[2]
Year Executing countries Abolitionist
1991 32 48
1992 35 51
1993 32 53
1994 37 55
1995 41 59
1996 39 60
1997 40 64
1998 37 70
1999 31 73
2000 27 75
2001 31 76
2002 31 79
2003 28 80
2004 25 85
2005 22 86
2006 25 87
2007 24 91
2008 25 93
2009 19 95
2010 23 96
2011 20 96
2012 21 98
There has always been conflict regarding the types of crimes which should be made eligible for capital punishment. This project would be specifically dealing with terror related offences, whether such offences come within the ambit of those crimes, for which killing a person as a form of punishment is justified. All over the world, including India, terrorism is considered as one of the heinous crimes, which not only affects a individual nation, but the world as a whole. Therefore, in this project, we will be looking at the validity of Death Penalty in relation to terror offences, not only in India, but all over the world.
B. Status of Death Penalty
Before critically analysing the constitutional validity of death penalty with regard to terror offences, it is very important to know the stand of the world as whole regarding what they call “judicial killing”. As mentioned above, many countries have already been successful in abolishing the form of punishment but still there countries who think that awarding capital punishment leads to better facilitation of their legal system. The following figure provides the status of Death Penalty worldwide till the end of 2014: [3]
The figure shows that there have been total of 98 countries that have abolished it while there are still 58 countries, including India, who exercise the practise of ‘legal killing.’ We can see that number of countries exercising death penalty is less than the number abolished it, which prima facie appears to be a good sign. But, attention should be paid to the countries which are included in the retained countries. The list consists of countries like India, China, USA, and Indonesia, which happens to be the most populated countries, thereby indicating that still a large part of the world is subjected to capital punishment, China, Saudi Arabia, Iran and Iraq being the top executioners, followed by India.
The figure[4] (amnesty international data on executions around the world) above gives the overall view of the number of executions and number of people sentenced to death in these 58 countries till 2012. However, as per death penalty report, 2015 of Amnesty International, numbers of people executed have been raised to around 1,634, the highest recorder since 1989[5].
But unlike to ancient times, Death penalty is exercised only in relation to few offences and not for all the offences. For example, in India, Supreme Court has , in the case of Bachan Singh v State of Punjab[6], said that death penalty will be applied only in rarest of rare cases and not to all type of offences. Although, 35th Law commission report and 262nd Law commission report and Supreme Court denies the total abolition of death penalty in the Indian Legal system. Similarly, countries like USA, China apply death penalty only in graves offences.
C. Relation between death penalty and terrorism
Now having seen the position which the world is at regarding death penalty, it would viable for us to see how the world deals with the same when it comes to terrorism. It is true to say that terror related offences are one of the gravest crimes, and every country, who believes in capital punishment, to make itself a “legally” safer place to live in, supports the idea of judicial executions of the terrorists. Before arguing whether they have adopted a right modus operandi or not, a little light have to be thrown regarding national and international standards in relation to death penalty and terrorism.
International standards for death penalty and terrorism
Terrorism is not an old concept. The world has been a victim to it since a long time, leading to producing of about nineteen legal instruments by the UN, since 1960’s to fight the same. Still, in spite of it being a serious issue in the international forum, a legal definition has still not been provided for the word “terrorism”, therefore, it still remains to be an undefined term. Due to the failure to provide a universal and concrete definition for it, many states have arrived at a definition for “terrorism” which has proved to be inaccurate and faulty, as it leads to violation of established international human rights norms, including those related to imposition of death penalty.
There are various anti-terrorism legislation which gives us an idea about the international human rights laws and standards:
- International Covenant on Civil and Political rights: The international human rights law, as prescribed under ICCPR, does not prohibit exercise of death penalty in absolute terms. However, it restricts its application legally. The article 6(2) of ICCPR, states that death penalty will be applied only in case of ‘most of serious crimes’[7], which according to them refers only to international killing.
- UN Economic and Social Council (ECOSOC): ECOSOC also supported the idea that death penalty should only be applied ‘most serious crimes’ and also provided nine safeguards for the application of death penalty. As per UN General Assembly, serious crimes involve those crimes ‘with lethal or extremely grave consequences’. In 2006, however, ambit of ‘most serious crimes’ was widened, which now included crimes where there is presence of intention to kill and results in loss of life.
- Inter-American Commission of Human Rights(IACHR): The IACHR , in its “Report on Terrorism and Human Rights”[8], draws the attention towards the right to life of an individual in the context of the ’Norms and Principles of International Human Rights and Humanitarian Law applicable in terrorist situations’. It also focuses on Article 4 of the American Convention of Human Rights (ACHR), which states: “in countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgement rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime”[9] and that “in no case capital punishment be inflicted for political offences or related common crimes.”[10]
- African Commission on Human and People’s rights: The African Charter on Human Rights also adopts the same idea of exercising death penalty only in cases of ‘serious crimes’ involving international.killing
While dealing with death penalty, exclusively for terrorism, UN office of the High Commissioner for Human Rights (OHCHR), has issued various documents, which points out that using of death penalty to counter.terrorism leads to violation of International Human Rights Law. In.the.Basic Human Rights Reference Guide: Conformity of National Counter-Terrorism Legislation with International Human Rights Law, which was produced.in.October 2014 by the Counter-terrorism Implementation Task Force (CTITF) of.the.OHCHR, it.is.clearly.stated.that:
“the reintroduction of death penalty for crimes of terrorism would be considered as contrary to the spirit of the ICCPR and to the repeated calls by the General Assembly for all States that still maintain the death penalty to progressively restrict the use of the death penalty; to reduce the number of offences for which it may be imposed; to establish a moratorium on executions with a view to abolishing the death penalty; and, for those States which have abolished the death penalty, not to reintroduce it.”[11]
Moreover, in the “Human Rights, Terrorism and Counter-terrorism Factsheet” of the OHCHR, that even in state of a emergency or even in the case of terrorism, to deprive a person of her/his life is against basic human rights law.[12]
Further, in.the.resolution.adopted.by.the.human.rights.council.on.the High-level panel discussion on the question of the death penalty held.at.the.Human.Rights.Council.30th Session, it.is.mentioned.that:
“Several delegates observed that capital punishment did not serve any deterrent purpose in combating terrorism, and deplored that some States expanded the use of the death penalty for crimes relating to terrorism. Expressing deep concern about atrocities committed by the Islamic State in Iraq and the Levant or by the terrorist groups in different parts of the world, they emphasized that all efforts must be made to counter terrorism and hold perpetrators accountable, but any measures to counter those threats needed to be consistent with the common values of justice and human rights. Legislation that included a vague definition of terrorism contravened human rights. They also said the death penalty clearly did not deter persons from committing terrorist acts as being executed transformed them into Marty.”
National standards for death penalty and terrorism
In.1985,.the.Terrorism.and.Disruptive.Activities.(Prevention).Act.started.a.dilution.of.procedure.and.process.in.the.conduct.of.criminal.trials. But in 1995, it got repealed due to some political reasons and as it was not able to reach the objective for which it was enacted. In 2002, after a year of Parliament Attack, another anti-terror legislation was enacted, Prevention of Terrorism Attack (POTA), which was also repealed in 2004, due to the loopholes present in it. These laws differ from the regular laws due to the special features of the trials which takes place under such extraordinary.laws. One of these special features is that they provide for a special.tribunal to deal.with.the.terror.offences. Evidence Act of India, makes a confession.inadmissible.which.takes.place.before.a.police.officer.[13] But under anti-terror laws acts as an exception to such rule but only when the police officer is of a.certain rank. This condition is kept with the assumption that police officers of high rank will not indulge in acts of torture and coercion.[14]
Many decisions have been made under such laws which have not been in accordance to conscience of the general masses. For example, in the case of Devender Pal Singh Bhullar & Anr v State of NCT of Delhi[15], Devender Pal Singh Bhullar’s mercy plea was rejected by the president on.8th May.2011[16]. Bhuller’s wife then moved to supreme court to set aside the execution on the ground that there has been a delay in execution and also he has become mentally ill in the prison and death sentence could not be provided to a person in such a condition, keeping in mind the human rights norms. On 12th April.2013, Supreme Court refused to set aside the execution providing with the reason that delay.in.execution cannot be considered as a factor for the same as conviction.was.under.the.terrorism.law.[17] However, later the decision was.set.aside by.a.larger.bench.of.supreme.court. But it was already too late as the whole process had already revealed the vagueness.in.the.application.of.law.
The first enactment of a anti-terror law was not done out of any social pressure but was done solely based on political objectives, keeping its ambit only to a particular set of community. In 1985, miliytancy.in.Punjab was the reason why Parliament enacted TADA, the first anti-terrorism law of India. Mostly Sikhs were tried.under.this.law. Death Sentences carried under this law was to only establish the fact that the state.was.delaing.with.terrorism.
Provisions of TADA were also applied while dealing with the culprits involved in the assassination of Rajiv Gandhi, former prime minister in May, 1991. All the 26 accused were tried in.a.speacial.court. They.were.all.convicted.and.sentenced.to.death. later, the Supreme Court, acquitted 19 of them of the capital punishment. The concluding part of the whole judgement confirmed the death sentence for.four.of.the.prisoners.[18] After the judgement was pronounced, a lot of agitations have been raised regarding the innocence of one of the accused who was subjected to capital punishment. It was said that it appeared from the procedure through which decision was arrived at that the death penalty was imposed on the persons.who.could.be.found, as it was not able to impose it on persons who were truly.responsible.for the crime.
In the Parliament Attack case,[19] in 2001, all the five ‘terrorists’ were shot dead but there were other four, who were claimed to co-conspirators, were charged and tried for the attack. All four.of.them.were.convicted.and.charged.for.capital.punishment. By the time the case reached Supreme Court, two of the four had been acquitted. From the remaining two, Shukat’s punishment was reduced from death sentence to ten years imprisonment, and Afzal Guru, who was considered to be the main conspirator, the master-mind behind the attack, was given the death sentence. He was hanged in Feburary, 2013. Now the main reason why this case became a issue of controversy was because the manner in which the execution of Afzal Guru was carried on, without following any procedure and the element of secrecy involved in the whole process raised serious doubts in relation to the act of hanging him.[20]
When we look at the above to illustrative cases, certain questions comes up regarding what death.penalty.has.achieved.in.such.cases..Considering.the.role.attributed.to.those.given.the. death.sentence,.the.potential.for.defence.seems.small. The court has often justified its stand for the death penalty by stating that it supports the collective conscience of the people.[21] Whenever, death penalty has been imposed, the main bone of contention has always been the procedure followed before imposing the capital punishment and not the punishment itself.
The execution of Ajmal Kasab, the sole.surviving.accused of the Mumbai Terror Attack in November 2008, raises the same concerns which were raised in the anti-terror case mentioned above, but.there.is.more. it is argued that Ajmal Kasab was not provided with a fair trial, as already a hostility was developed towards him, and his country too not extending any support to him either in law or in any other way and whose understanding also being limited by his.experience,and.education.
The.problem.is.not.unique.to.the case of Kasab but almost in all cases but the sad part is only a handful of them; specifically those who are politically damaging reach the masse. Such a situation, the big defect which is often brought to surface is needed to be dealt with in an international forum. The trial of Kasab being so publicly famous, surrounded by media and public hatered, concerns regarding fair trial including legal assistance and.representation and language barriers raises doubts regarding the justification provided by the court for hanging Kasab.[22]
D. conclusion
After looking at both the national and international forum, dealing with death penalty in relation to terrorism, it can be concluded that whether it is USA or India, every country indulging itself in capital punishment, sees terrorism or terror related offences as something which is eligible for being punished with death. According to Amnesty International, at least 20 countries have executed people to death who were accused for terror related offences.
If we look at the cases cited above and the documents produced by OHCHR, it is not very hard to see that awarding of death penalty fulfils only one objective and that is violating the right of a person. There is no evidence that death penalty is more effective and creates more deterrence in the minds of the people than other crimes. It is true to say that terrorism is a very grave offence, and creates suffering in a large scale, both to the victims and their families. But it is viable for us to ask whether death penalty is used as a punishment or as a instrument of revenge. The whole process consists of killing a person to make him realise that it is wrong to kill others. Is judicial killing the only option left for the world to finish the crime from the very root? Shouldn’t we look deeply into the matter as to why the crime was committed at first place? What led to the person committing such a heinous crime? Rather than hanging him and deprive him of his life? According to me, Death penalty is the ultimate, .cruel. inhuman and degrading punishment, hence it should be banned in all its forms, regardless of the crime and the individual because killing a person is never the solution.
[1]Amnesty International report on Death Penalty.(https://www.amnesty.org/en/what-we-do/death-penalty/)
[2] https://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world
[3]https://factly.in/why-did-the-law-commission-recommend-abolition-of-death-penalty-except-in-cases-of-terror/
[4] https://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world
[5] https://www.amnesty.org/en/latest/research/2016/04/death-sentences-executions-2015/.
[6] (1980) 2 SCC 684.
[7] Harm Reduction International, The Death Penalty for Drug Offenses: Global Overview 20110, p17.
[8] Report on terrorism and human rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002
[9] American Convention on Human Rights, Art.4 para 2.
[10] American Convention on Human Rights, Art.4 para 4.
[11] Basic Human Rights Reference Guide: Conformity of National Counter-Terrorism Legislation with International Human Rights Law produced by the Counter-Terrorism Implementation Task Force (CTITF), OHCHR, October 2014.
[12] Human Rights, Terrorism and Counter-terrorism Factsheet, Fact Sheet No 32, OHCHR.
[13] Anup Bhuyan v State of Assam,(2011) 3 SCC 377.
[14] Kartar Singh v State of Punjab, (1994) 3 SCC 569; Sec 15 of TADA.
[15] (2013) 6 SCC 195.
[16] Usha Ramanathan, “Futile penalty”, Frontline, 25th August-7th September 2012, available from www.frontline.in/navigation/?-type=static&page=archive.
[17] Supra note 13.
[18] CBI/SIT v Nalini ,(1999) 5 SCC 253.
[19] State v Mohd. Afzal (2003) 107 DLT 385.
[20] See also Nirmala George, “India’s secret executions cause concern in the wake of Mohammad Afzal Guru Hanging”, Huffington Post, 23rd February 2013.
[21] Machhi Singh v State of Punjab, (1983) 3 SCR 413.
[22] Mohammed Ajmal Kasab v State of Maharashtra, (2012) 9 SCC 1.
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