Background Guide

Lok Sabha “Constitutionality of Death Penalty”

CHAIRPERSON’S ADDRESS

Dear Parliamentarians,

It is indeed an honour to welcome you to the WIT ZONE MUN 1.0. I will be the

chairperson of your committee, the Lok Sabha.

Model UNs have been close to my heart for as long as I can remember. Having

been a part of quite a few such conferences, at various levels, I can confidently

say that there is a lot to take away from such a conference. Aside from the obvious

skills of diplomacy and extempore speech, I have seen myself become more

aware of the world I live in, with each passing MUN. Similarly, it is my sincere

wish, that each of you take something positive back from these few days we spend

together.

As a delegate, it is imperative to note that your research must not be limited to

this document. The Study Guide is a mere summary of the topic area and should

be used as a platform to facilitate further research so as to expand your knowledge

base. A better and more holistic understanding of the Agenda would give you an

edge over other delegates.

It is my understanding that some delegates at the conference would want a certain

amount of help in their preparation. I shall be available to answer any doubts you

may have on the addresses mentioned below. Please do not refrain from getting

in touch with me if you have questions.

I look forward to hearing from you, and best of luck with your prep!

Prateek Mago

+91 9978007220

prateek27mago@gmail.com

THE IDEA OF THE LOK SABHA

The Lok Sabha is the Lower House of India’s Bicameral-Parliament,

with the higher house being the Rajya Sabha. It is composed of

representatives of the people from 543 constituencies, chosen by direct

election on the basis of adult suffrage, and meets in the Lok Sabha

Chambers of the Sansad Bhavan in New Delhi.

At this conference, we will be discussing about a very controversial

topic. At this juncture, you, the members of the Lok Sabha will assume

the roles of members of parliament from various parts of the country

and work towards your assigned constituency’s interests.

DEATH PENALTY (CAPITAL PUNISHMENT)

What does it mean?

Capital punishment, death penalty or execution is punishment by

death. The sentence that someone be punished in this manner is a

death sentence. Crimes that can result in a death penalty are known

as capital crimes or capital offences. Capital punishment has, in the

past, been practiced by most societies, as a punishment for criminals,

and political or religious dissidents. Historically, the carrying out of the

death sentence was often accompanied by torture, and executions

were most often public.

36 countries actively practice capital punishment, 103 countries have

completely abolished it de jure for all crimes, 6 have abolished it for

ordinary crimes only (while maintaining it for special circumstances

such as war crimes), and 50 have abolished it de facto(have not used

it for at least ten years and/or are under moratorium).

Nearly all countries in the world prohibit the execution of individuals

who were under the age of 18 at the time of their crimes; since 2009,

only Iran, Saudi Arabia, and Sudan have carried out such executions.

Capital punishment is a matter of active democracy in various

countries and states, and positions can vary within a single political

ideology or cultural region. In the European Union member states,

Article 2 of the Charter of Fundamental Rights of the European Union

prohibits the use of capital punishment. The Council of Europe, which

has 47 member states, also prohibits the use of death penalty by its

member states.

The United Nations General Assembly has adopted, in 2007, 2008,

2010, 2012 and 2014non-binding resolutions calling for a global

moratorium on executions, with a view to eventual abolition.

Although many nations have abolished capital punishment, over 60%

of the world's population live in countries where executions take

place, such as China, India, the United States and Indonesia, the four

most-populous countries in the world, which continue to apply the

death penalty (although in many US states it is rarely employed). Each

of these four nations has consistently voted against the General

Assembly resolutions.

Abolition of Capital Punishment:

Many countries have abolished capital punishment either in law or in

practice. Since World War II there has been a trend toward abolishing

capital punishment. 103 countries have abolished capital punishment

altogether, 6 have done so for all offences except under special

circumstances and 50 have abolished it in practice because they have

not used it for at least 10 years or are under a moratorium.

Abolitionists believe capital punishment is the worst violation of

human rights, because the right to life is the most important, and

capital punishment violates it without necessity and inflicts to the

condemned a psychological torture. Human rights activists oppose the

death penalty, calling it "cruel, inhuman, and degrading punishment".

Amnesty International16 considers it to be "the ultimate, irreversible

denial of Human Rights".

Proponents for Capital Punishment:

Advocates of the death penalty argue that it deters crime, is a good

tool for police and prosecutors (in plea bargaining for example), makes

sure that convicted criminals do not offend again and is a just penalty

for atrocious crimes such as child murders, serial killers or torture

murderers. Supporters of the death penalty argued that death penalty

is morally justified when applied in murder especially with aggravating

elements such as for multiple homicide, child murderers, cop killers,

torture murder and mass killing such as terrorism, massacre, or

genocide. Some even argue that not applying death penalty in latter

cases is patently unjust. This argument is strongly defended by New

York Law School's Professor Robert Blecker, who says that the

punishment must be painful in proportion to the crime. 18th century

philosopher Immanuel Kant sums it up as following:

But whoever has committed murder must die. There is, in this

case, no juridical substitute or surrogate that can be given or

taken for the satisfaction of justice. There is no likeness or

proportion between life, however painful, and death; and

therefore there is no equality between the crime of murder and

the retaliation of it but what is judicially accomplished by the

execution of the criminal.

Abolitionists argue that retribution is simply revenge and cannot be

condoned. Others while accepting retribution as an element of

criminal justice nonetheless argue that life without parole is a

sufficient substitute. It is also argued that the punishing of a killing

with another killing is a relatively unique punishment for a violent act;

because in general violent crimes are not punished by subjecting the

perpetrator to a similar act (e.g. rapists are not punished by being

sexually assaulted).

Indian perspective:

The culture of vengeance and violence is prevailing in Indian society

and the Indian State continues to be very violent and aggressive.

Archaic concept of Roman law – life for life, eye for eye – has a strong

grip over the people of India. Hence, despite the historical fact that

India has a long tradition of ahimsa in a religion like Buddhism, and

despite the position of the Father of the Indian nation, Mahatma

Gandhi‘s and others against the application of death penalty and

practice of nonviolence, the arguments for abolition of death penalty

has, till today, failed to gain much ground on Indian soil.

Although India is a signatory to the International Covenant of Civil and

Political Rights (1966), and, therefore, is committed to phase out the

application of death penalty, India as we have already mentioned,

expanded its scope under various pretexts. It is pertinent to note, way

back in 1997, India abstained when the Commission on Human Rights

of United nations passed a resolution calling for an end ―to judicial

executions in the world.

The last few years witnessed capital punishment being awarded to

three terrorists – Ajmal Kasab, Afzal Guru and Yakub Memon. This has

given rise to a lot of debates regarding the plausibility and

humaneness of the verdicts of the Supreme Court of India rejecting

their mercy petition. Is offering the noose the best way to teach

someone a lesson? How can lesson be learnt after death? This makes

capital punishment more of a way of teaching the society a lesson

rather than the criminal himself.

The death sentence is not given for every crime. The list includes

murder, treason, terrorism and repeated aggravated assaults. During

a war threat, death penalty is given for treason that would mean loss

of life. Acts of terrorism cause people to be injured or killed and,

therefore, is awarded the death sentence. Death sentenced is also

imposed on a person who has been convicted of aggravated assaults,

manslaughter or brutal rape. And also to one who has served a

punishment and after that is convicted of aggravated assaults again.

It should be kept in mind that in a country like India the number of

death penalty is very few. Nathuram Godse was given the death

penalty for assassinating Mahatma Gandhi. Kehar Singh was given the

death penalty for being part of Indira Gandhi‘s assassination.

Dhananjoy Chatterjee was given the same sentence for raping and

then murdering a school girl.

Constitutional Validity of Death Penalty:

The study of death penalty was once undertaken by Law Commission

of India as far back in 1967 and in its 35th report, it justified for

retention of the death penalty. The view was concurred by the five

judges of the Supreme Court of India, when the matter of

constitutional validity came for hearing. Whether the right to life is an

inherent right and the State must not be given the power to extinguish

any life – irrespective of his or her crime – and whether this is violative

of Article 21 and article 14 since two persons found guilty of murder

could be treated differently, the said judicial bench in the well-known

case , Jagmohan Singh vs State of U. P (1993), refused to be persuaded

by the decision of the U.S. Supreme Court in Forman vs. Georgia in this

regard, and argued for the retention of death penalty. The judges cited

different social conditions and low intellectual level of the public as

grounds of argument.

In 1980, there was a renewed challenge in Bachan Singh v. State of

Punjab to the constitutional validity of the capital punishment.

Political situation in India in the post-emergency period (1977

onwards) was different; liberal democratic atmosphere was evident

and respect for rights of citizens became the cry of the day. Judicial

activism was accepted and heavily appreciated. Yet, even in these

developments, the four judges out of five judges (Justice P.N.

Bhagwati being the sole dissenting voice) upheld the constitutional

validity of the death penalty, but severely limited the scope of this

punishment. The majority acknowledged the human rights

jurisprudence and developments in international laws in this regard.

They held, inter-alia: A real and abiding concern for the dignity of

human life postulates resistance to taking a life through law‘s

instrumentality. That “ought not to have done save in the rarest of

rare cases when the alternative option is unquestionably foreclosed.”

And till today, this remains the unchanged judicial position in India.

This judgment undoubtedly affirmed again that the death penalty was

the exception, not the rule. Subsequently, the Supreme Court in

another famous case, Machhi Singh v. State of Punjab, directs the trial

court to draw up a balance sheet of the aggravating and mitigating

circumstances and opt for the maximum punishment and considering

all these factors, if the judge then finds no other alternative, then he

can hand down the death penalty.

Open debate over the issue:

The former President of India, APJ Kalam, suggested the Government

of India to launch an open debate over the issue of retention of death

penalty in Indian statute books. It went unheeded. He wrote, in his

Turning Points26, “We all are the creatures of God. I am not sure a

human system or a human being is competent to take away a life

based on artificial and created evidence”. His observations were based

on his study of social-economic background of the convicts whose

clemency petitions were pending before him. The 262nd Law

Commission Report recommended that the capital punishment or

death penalty should be abolished from the Indian Legal System,

which should instead follow the procedure advised by the human

rights activists. A deliberation also came out in 2003 from the

judgement of Shankar Kisanrao Khade v. State of Maharashtra,

wherein arguments were made in pursuance of death penalty

awarded to the convict and its constitutionality.

The support for abolishing death penalty in the country has also

increased in recent times. In August 2015, Tripura Assembly also

passed a resolution in favour of the same while the political parties

such as Communist Party of Indi (Marxist-Leninist Liberation), the

Vidhuthalai Chiruthaigal Katchi (VCK), the Manithaneva Makkal Katchi

(MMK), the Gandhiya Makkal Iyakkam (GMI). The Marumalarchi

Dravida Munnetra Kazhagam (MDMK), and the Dravida Munnetra

Kzhagam (DMK) have openly supported the abolishment. Also, 2

private number bills are on the floor of the Parliament out of which,

one is by Kanimozhi in the Rajya Sabha while D. Raja has proposed the

same in Lok Sabha.

At the Lok Sabha, the members are expected to give their party‘s

opinion regarding the capital punishment being still imposed in India.

The said debate will lay its ground on the issues already raised at the

international arena and in the light of death penalties awarded

previously in India. The members will lay down their respective

arguments and on reaching a conclusion, a bill will be drafted which

will be discussed in the parliament for its potential viability.