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January 4 2015

From Sudheendra Kulkarni

Time To Say Death To The Death Penalty.

Isn’t it ironic that killing people for killing people is seen as necessary to show that killing is wrong?

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In 1999, Sonia Gandhi did something heroic and humane. She wrote a letter to then president Dr K.R. Narayanan, asking him to commute the death penalty awarded to four persons for their role in the assassination of her husband, former PM Rajiv Gandhi, in 1991. She reportedly wrote: “My children suffered at the death of my beloved husband and therefore we do not favour that another child in the world should lose her or his mother and father.”

Sonia’s noble gesture of forgiveness saved the life of Nalini Sriharan, one of the conspirators in her husband’s assassination; Nalini’s death sentence was later commuted to life imprisonment. In 2008, Sonia’s daughter Priyanka Vadra followed up with her own noble act. She met Nalini at Vellore jail, in Tamil Nadu, and said this about her meeting: “I do not believe in anger, hatred and violence and I refuse to allow these things to overpower my life.... It was my way of coming to peace with the violence and loss that I have experienced.”

I was one of those who had not understood Priyanka’s gesture in its proper light at the time. I had allowed myself to be overpowered by cynicism when I wrote in my column in The Indian Express: “ is difficult to believe that considerations of political gain had nothing to do with this episode.” However, my views on death penalty have undergone a significant change since then. I now see that compassion and mercy are indeed an active and higher form of non-violence, as preached by all the religions of the world. My one grouse against Sonia is that, during the ten years of UPA rule, when her voice was the most powerful, she did not persuade her government to adopt the same enlightened stand on capital punishment. In 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on capital punishment. India did so again in 2012, voting against the UNGA draft resolution seeking an end to death penalty. As many as 140 countries in the world have either abolished death penalty or do not practise it any more. The European Union has made “abolition of death penalty” a precondition for membership. Sadly, India has chosen to be a retentionist state, disregarding the moral message of its own rich religious traditions.

Therefore India, now under Narendra Modi, must make a break from the past and join the global movement against death penalty when UNGA takes up this issue again next year. The Indian Parliament and Indian civil society have not been debating this issue seriously, especially since the ethical, theological, practical and justice-related arguments against death penalty are so compelling. As pointed out by champions of the abolitionist movement worldwide, isn’t it truly ironic that “killing people for killing people is regarded as necessary to show that killing is wrong”?

Human life is sacred and inviolable. It is the highest creation of God. Our life is a gift from God. The State cannot arrogate to itself the power to kill any human being, not even a convicted criminal, in the conduct of its functions to dispense justice. The only exception to his injunction is the violence that the army, which is a component of the State, is permitted to inflict on an aggressive rival army purely in defence of the nation.

Of all the arguments adduced in defence of capital punishment, the two that are most dubious are those of retributive and deterrent justice. The near and dear ones of a victim of murder may, in some cases, want the crime to be avenged. However, vengeance on the criminal, on behalf of the victim of the crime, cannot be the legitimate role of the State. The purpose of punishment cannot be retribution. It can only be reformation of the criminal. Death sentence prevents the State from performing its duty to reform the criminal to the extent that such reformation is possible. Of course, it also robs the person executed of the opp­ortunity to reform himself or herself. Secondly, there is considerable research by organisations like Amnesty International to drill holes in the argument that death sentence has “a greater detterent effect than life imprisonment”. Amnesty International says: “Such proof is unlikely to be forthcoming.... Death penalty is a harsh punishment, but it is not harsh on crime”.
There is also a third misconception. Death sentence for a criminal convicted in a heinous crime, it is said, brings closure to the family of the victim. No, it does not. True closure, as shown by the Gandhi family, comes from genuine forgiveness, compassion and prayer. Unlike death penalty, which leaves behind a trail of guilt and suffering, forgiveness morally elevates the families of the victim and the criminal, and also the State itself.

Also, can we be unmindful of the mental torture involved in the enormous delay between the pronouncement of the sentence and its execution? There are 477 convicts on death row in India. Many of them were sentenced more than 10 years ago. Most of them will not be sent to the gallows. However, the uncertainty associated with their fate is punishment in itself. Indeed, in February this year, the Supreme Court commuted the death sentence of the remaining three men convicted in the Rajiv Gandhi assassination case to life imprisonment, rejecting the government’s contention that an 11-year delay in deciding their mercy petition was not agony for them. In the previous month, the Supreme Court commuted the death sentences of 15 convicts, stating that the “inordinate and inexplicable” delays in carrying out executions were grounds for reducing their original punishment.

In July 2012, President Pranab Mukherjee received an unprecedented appeal from 14 eminent former judges seeking his intervention to commute the death sentences of 13 convicts. The judges referred to the Supreme Court’s own admission of error in the capital punishment pronounced on the convicts since 1996. Shockingly, they pointed out that the sentences were erroneous also in the case of two other convicts who had already been hanged. Castigating this in particularly harsh terms, the judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India.”

Hope springs, thanks to the Law Commission

A new silver lining in the debate on death sentence in India is that the Law Commission of India, which had opined nearly five decades ago against the abolition of death penalty, has begun a fresh exercise to re-examine the matter. In May this year, it issued a public consultation paper on capital punishment. This follows the Supreme Court’s observation that “perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.”

In its consultation paper, the Law Commission observes: “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context, it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.”

One hopes that the commission makes a bold recommendation that is different from the one made 50 years ago. If the world’s second most populous country decides to end death penalty, it will be a big victory for the global movement against capital punishment.

This was the thrust of my speech at the first Asia-Pacific inter-religious meet, on the theme ‘No Justice Without Life’, held in Manila last month. It was organised by the department of justice of the Philippines and the Community of Sant’Egidio, an NGO backed by Pope Francis. The conference adopted this appeal: “We commit ourselves to work to create a larger consensus to the call for a universal moratorium on executions, adopted by the majority of countries at the UNGA. We will do all that is possible to abolish the death penalty on earth and to work to promote a more humane life in prison, always respecting human life and dignity, firmly believing in the possible rehabilitation of a human being.”

It’s time the Indian government and Parliament joined the growing consensus of human civilisation on ending an uncivilised form of punishment.

(Sudheendra Kulkarni was media aide to former prime minister Atal Bihari Vajpayee.) 

Sudheendra Kulkarni