Time capital punishment was banished

Faisal CK

Despite the inherent fallibilities of the death penalty and the worldwide trend against it, India is all set to invigorate capital punishment.

The proposed Bharatiya Nyaya Sanhita Bill 2023 has increased the number of crimes that can attract the death penalty from 11 to 15 adding four new crimes namely mob lynching, organized crime, terrorism, and rape of a minor.

According to the Annual Statistics Report released by the Project 39A of the National Law University Delhi, as many as 539 prisoners were on death row in India till December 31, 2022, the highest since 2016.

These facts are indeed disheartening. As of 20th July, 2023, 90 of the 173 state parties to the International Covenant on Civil and Political Rights have ratified or acceded to the Second Optional Protocol of ICCPR aiming at the abolition of the death penalty (1989).

In total, 144 countries have abolished the death penalty in law or in practice. Unfortunately, India has not yet signed the Second Optional Protocol.

In 2012, India voted against the draft resolution seeking to ban the death penalty in the UN General Assembly. India is standing adamant about the global trend of abolishing capital punishment.

Irreversible judicial murders

The execution of Sarmad Kashani, a 17th-century Sufi saint, by Emperor Aurangzeb exposes the terrifying futility of the death penalty.

Born in around 1590, Sarmad was a Jewish merchant, who later adopted Islam and left his home in Iran for Delhi.

He spent his life wandering about in the lanes of Shahjahanabad as a naked fakir, reading and writing poems on divine love. Dara Shikoh, the heir to the Mughal throne, called Sarmad his master and frequently held discussions with him on spirituality.

Ill-fated Dara Shikoh was killed by Aurangzeb and the latter ascended the throne. Finally, Aurangzeb framed an accusation that Sarmad did not read the full kalima and only recited the words, ‘La Ilah’ (there is no God).

The furious religious scholars asked him to complete it but Sarmad replied: “Presently, I am drowned in Negation; I have not yet reached the (spiritual) station of Affirmation. If I read the full kalima in this state, it will be a mockery.”

The Ulema declared it as apostasy and Sarmad was sentenced to death. He was beheaded in 1660/61.

Sarmad’s capital punishment exposes the fundamental flaw of the death penalty- its irreversibility.

George Stinney Jr. was a 14-yearold poor African American boy when he was executed by electrocution on June 16, 1944, for allegedly murdering two white girls, in Alcolu, South Carolina, USA.

George was questioned by Police in a small room, all alone—without his parents, without an attorney. Police claimed the boy confessed to killing the two girls, also admitting he wanted to have sex with the 11-yearold.

At his trial, George was represented by a tax attorney who had never argued a criminal case and failed to call a single witness. The trial lasted less than three hours and the deliberations of the allwhite jury took merely 10 minutes.

In 2014, George’s conviction was vacated by a Circuit Court Judge, who noted that George had not received a fair trial and his Sixth Amendment constitutional rights had been violated.

Seventy years after he was put to death, little George Stinney Jr. was legally exonerated.

Not a coin made of law’s pure gold

“The death sentence when implemented is not a coin made of law’s pure gold but alloy, in fact, a coarse alloy of many ores, of high, medium, and low grade, that have passed through the smelteries of reason, emotion, pride, prejudice, a state’s hubris, a society’s moods that swing between pity for the victim and rage at the culprit in an unspooling of feelings that are as old as that of the Plebeians who ran amok in 44 CE in Rome following Caesar’s assassination and killed Cinna the poet mistaking him for Cinna the assassin, the mob that bayed for Christ’s blood in Judea around 29 CE and all those ‘popular’ upsurges down the centuries right down to our times demanding the death of men believed to have done harm to society and nation.”- writes Gopal Krishna Gandhi in his Abolishing Death Penalty: Why India should say no to capital punishment (2016).

The abolition of capital punishment has been contemplated by the Supreme Court and the Law Commission of India.

The Supreme Court in Bachan Singh vs the State of Punjab (1980) observed: “Judges should never be blood-thirsty...A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.”

Inhuman punishments of whipping, la