A look into Fundamental Rights and Capital Punishment in different Countries

By Anusha Almeida

“Any law which violates the inalienable rights of man is essentially unjust and tyrannical; it is not a law at all.”– Maximilien Robespierre

INTRODUCTION

Fundamental rights, also known as inalienable or basic rights are negative rights which are made enforceable against the state, if violated^[1]. The State can however, impose certain restrictions on these rights.

Right to life is a fundamental right which has been accorded protection in almost all nations in the world. The right to live a free, full and dignified life is one of the most basic principles of human existence.

Every person is entitled to live their life on their own terms, with no unfair interference from others. A successful democracy can only be one that guarantees its citizens the right to protect their own life and liberty^[2].

Death penalty is a controversial topic with respect to discussions on the right to life. Some countries permit awarding of death sentences whereas others give life imprisonment as a maximum sentence. Various countries have different laws.

Several scholars strongly oppose it as it is considered to be violative of the fundamental human right of life. Several human rights activists state that every human being has a right to life and a right not to be subjected to cruel, inhuman or degrading punishments^[3].

They contend that the deliberate killing of a prisoner for punishing and deterrence is a purpose which can be easily fulfilled by other ways^[4].

No matter the gravity of the crime of the convict, this cruelty cannot be justified. Considering that life is a human right, the provision of death penalty is nothing but an abuse of our most fundamental human right. The cruelty of death penalty diminishes the humanity of everyone it touches.

On the other hand, we also have proponents for capital punishment who strongly argue that it not a violation of the right to life. They content that the right to life is not absolute and that death penalty must be regarded as a penalty imposed according to the procedure established by law to curtail the right to life in consideration of public welfare.

Death Penalty

The history of human civilization reveals that capital punishment has been awarded as a mode of punishment since early civilizations^[5].

Death penalty is the highest form of punishment which is awarded to criminals in several nations. Some consider it as a blatant violation of the right to life. On the other hand, various nations believe that it is not a violation of the fundamental right to life as the right to life is not absolute.

Death sentence was incorporated in the legal justice system to provide a sense of security to the victims and their families that they have some recourse to seek justice^[6].

The main motive was that death penalty would act as a deterrent to keep the rates of crimes; especially heinous offences low in the country are reduced^[7]. Death penalty is awarded in a variety of methods across the globe. In India, hanging is the method resorted to as it is believed to be the least painful method for causing the death of the convict.

International Perspective

Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides that every human has an inherent right to life^[8].

Additionally, The UN General Assembly has adopted, in 2007, 2008, 2010, 2012, 2014, and 2016 non-binding resolutions calling for a global prohibition on executions, with a view to abolish it completely.

At present, only fifty-four countries have retained capital punishment. India is one of them.

The legitimacy of capital punishment varies from country to country. Amongst the nations which have not abolished it, China is at its peak where over 1000 executions are made every year^[9] whereas India follows the, principle of “Rarest of Rare” category which was evolved in Bachan Singh v. State of Punjab^[10].

Countries which have Abolished Capital Punishment

Certain nations have outrightly banned capital punishment. Some do so with an express provision in their Constitutions. In such a case, the question of capital punishment being constitutionally valid or understanding it with the right to life does not arise.

West German Constitution bans capital punishment under A.102 in the following words “Capital punishment shall be abolished.”

In 1955, Spain abolished the death penalty, stating that “the death penalty has no place in the general penal system of advanced, civilized societies . . . What more degrading or afflictive punishment can be imagined than to deprive a person of his life^[11]?”

Justice Chaskalson of the South African Constitutional Court, stated in the historic opinion banning the death penalty under the new constitution that: “Everyone, including the most abominable of human beings, has the right to life, and capital punishment is, therefore, unconstitutional^[12]”

The Court decided that death penalty was incompatible with the prohibition of cruel and inhumane punishment as well as a culture of respect for the fundamental right to life and dignity, which are cornerstones of the South African Constitution.

Another recent example of a country abolishing capital punishment is Malawi, a country in southeast Africa. In August 2021, the Malawi Supreme Court of Appeal declared in a leading case^[13] that the death penalty is unconstitutional.

“The death penalty, since it is a derogation from the right to life, is impermissible under the nation’s constitution. The essence of the right to life is life itself—the sanctity of life. The right to life is the mother of all rights. Without the right to life other rights do not exist”, the Court held.”

“The Court thus interpreted capital punishment within the ambit of the fundamental right to life and stated the death penalty, since it is a derogation from the right to life, is impermissible” under the nation’s constitution.

This decision means that life imprisonment is now the maximum sentence in Malawi, reserved only “for the worst instance of crime.”

Countries retaining Capital Punishment

At present, fifty-four countries have retained capital punishment, including India.

USA

The federal government in the USA has not abolished death penalty. Currently, death penalty is legal in 27 states in the USA. When the US Constitution was frames, the founding members found nothing cruel in death penalty which was assumed to be in existence by 5^th and 14^th Amendments^[14] to the Constitution and this view was upheld by the SC in 1958.

In 1972, the Supreme Court struck down capital punishment statutes in Furman v. Georgia^[15], thereby reducing all pending death sentences to life imprisonment at the time. Subsequently, a majority of states enacted new death penalty statutes, and the court affirmed the legality of capital punishment in 1976 in Gregg v. Georgia^[16].

In this case, the Court held that death penalty is not violative of the right to life unless it is inflicted in an arbitrary and capricious manner.

Thus, if a statute lays down standards which ensure that death penalty cannot be awarded arbitrarily, it cannot be struck down as unconstitutional, for e.g., if it was prescribed for a heinous offence like murder.

India

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. It states as follows: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

The constitution of India guarantees to every person a fundamental right to life. Thus, a bare reading of Article 21 shows that the right to life is not an absolute right as it clearly states that this right is subject to its deprivation by a procedure established by law.

Capital punishment would fall within the ambit of this exception as the Indian Penal Code prescribes death penalty as a punishment for certain offences and hence, it is not a violation of the right to life.

The constitutional validity of the death penalty was challenged from time to time in numerous cases.

In Jagmohan Singh v. State of Uttar Pradesh^[17], a five-judge bench of the Hon’ble Supreme Court upheld the constitutional validity of capital punishment and held that it was not violative of Articles 14, 19 and 21 of the Indian Constitution.

In this case, death penalty was challenged on the ground that it violated Articles 19 and 21 due to the absence of any provision for its procedure.

The SC held that the awarding of death penalty is done in accordance with the procedure established by law as the judge makes the choice of awarding either death penalty or life imprisonment based on the facts and circumstances of each case.

In Rajendra Prasad v. State of U. P^[18]., J. Krishnaswamy Iyer had held that death penalty was violative of Articles 14, 19 and 21 of the Indian Constitution.

However, this judgment was overruled by the SC in Bachan Singh v. State of Punjab^[19]. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases.

Subsequently, in Machhi Singh v. State of Punjab^[20], the SC established the broad outlines of the circumstances under which the death penalty should be awarded.

In Mithu vs. State of Punjab^[21], S.303^[22] of the IPC was struck down as violative of Article 21 and 14 of the Constitution of India, as the offence under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.

Thus, in India, death penalty is regarded as constitutional in India and is not violative of Article 21 under the Indian Constitution.

Japan

Death penalty does not violate the right to life in Japan as well. Article 31 of the Japanese Constitution (1946) is similar to A.21 of the Indian Constitution.

Article 31: “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.”

There are two other important provisions; viz Articles 13 and 36.

Article 13: “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”

Article 31: “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.”

In interpreting these provisions, the Japanese SC has arrived at following conclusions with respect to death penalty:

1. Though the right to life is of ‘more importance than the whole earth’, it may be curtailed or taken away by law when public welfare so requires^[23].
2. Death penalty is not offensive to ‘human dignity’. When it is imposed in public interest, it gives supremacy to the concept of humanity as a whole rather than to the concept of humanity as individuals^[24].
3. Death penalty by hanging is not a cruel punishment within the meaning of Art. 36^[25].

Conclusion

Capital punishment is a state-sanctioned punishment of ending the life of the convicted person by awarding him death sentence. The death penalty is a contentious issue that has sparked several arguments and debates.

There has been a diverse opinion amongst jurists and academicians regarding the death penalty across the globe as some are in the favor of the retention of the punishment while others are in the favor of its abolishment.

The right to life is not only a universal human right but is a protected fundamental right in almost all nations and is given the highest regard.

The validity of capital punishment is thus interpreted in light of the fundamental right to life and also the fundamental right of prohibition of torture or other forms of inhuman treatment.

There is no international law on prohibition of capital punishment; though there are a few recommendations suggesting its abolition propounded by various international bodies.

Thus, though the right to life is a universal fundamental right and is held to be protected by the State in most nations, there is no common thought with respect to the acceptance of capital punishment in the light of the same.

Some countries have held that death penalty is unconstitutional as it violates the right to life and have abolished it. On the other hand, there are various countries which have upheld the validity of the death penalty and have held it to not violate the fundamental right to life.

This may be subject to conditions which differ from State to State such as the decision being non arbitrary or only being awarded in rarest of rare cases or heinous offences or the method of execution being least painful such as hanging.

Therefore, irrespective of the nation’s side on the debate of acceptance of capital punishment, capital punishment and its validity depend on the interpretation of the fundamental right to life and is subject to the laws of the land and the interpretation of the Courts from country to country.

It is a good example to highlight that fundamental rights are subjective to every country. Whether the remaining 54 nations, including India would follow in the steps of the other nations with respect to interpreting death penalty within the meaning of the right to life and moving towards abolishing is something that only the future will unfold.

Author- Anusha Almeida, currently pursuing Masters in Law at G.R. Kare College of Law, Goa, India.

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References

Erikson, ‘Death Penalty, Amnesty international, (2020)

Biling S, “China and The (Ab)Use Of The Death Penalty”, HumanRightsPulse.com, (May 24 2021)

Constitutional Court of South Africa, State v. T. Makwanhyane and M. Mechunu, [1995] CCT 3/94, ZAAC₃ Khoviwa v. The Republic

D.D. Basu, ‘Comparative Public Law’, Lexis Nexis Publications, (3^rd Edn. 2014)

Diwan, P & Diwan, P, ‘Human Rights and the Law-Universal and Indian’, Deep

& Deep Publications Pvt. Ltd., New Delhi (1998),

Gupta, ‘Capital Punishment in India’, Deep and Deep Publications, [3rd Edn, 2004]

Hood R, ‘The Death Penalty: A World-wide Perspective’, Oxford Publications, (1^st edn, 2008)

Lutz, P and Burke, ‘New Directions in Human Rights’ , University of Pennsylvania Press, Phiiadelphia (1989)

Sahu S, Charles Khoviwa v. The Republic: ‘Death Penalty Declared Unconstitutional In The Country Of Malawi’, Lawyers Club India, (2021),

Sharma, ‘Death Penalty – The Breaking of Fundamental Human Right for Life’. International Journal of Law Management & Humanities, 4 [2021]

Shukla, ‘Constitution of India’, Eastern Book Company [13^th edn., 2017]

Stuart M, ‘The Right to Life Under International Law: An Interpretative Manual’, Cambridge University Press [2021]

1. Shukla, ‘Constitution of India’, Eastern Book Company [13^th edn., 2017] ↑
2. Lutz, P and Burke, ‘New Directions in Human Rights’ , University of Pennsylvania Press, Phiiadelphia (1989) ↑
3. Universal Decalration of Human Rights, 1948 ↑
4. Erikson, ‘Death Penalty, Amnestyinternational, (2020), https://www.amnesty.org/en/what-we-do/death-penalty/ ↑
5. Gupta, ‘Capital Punishment in India’, Deep and Deep Publications, [3^rd Edn, 2004] ↑
6. Sahu S, Charles Khoviwa v. The Republic –‘Death Penalty Declared Unconstitutional In The Country of Malawi’, Lawyers Club India, (2021),  ↑
7. Sharma, ‘Death Penalty – The Breaking of Fundamental Human Right for Life’. International Journal of Law Management & Humanities, 4 [2021] ↑
8. Article 6 ICCPR- “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” ↑
9. Biling S, “China And The (Ab)Use Of The Death Penalty”, HumanRightsPulse.com, (May 24 2021),  ↑
10. AIR 1980 SC 898 ↑
11. Hood R, ‘ The Death Penalty: A World-wide Perspective’, Oxford Publications, (1^st edn, 2008) ↑
12. Constitutional Court of South Africa, State v. T. Makwanhyane and M. Mechunu, [1995] CCT 3/94, ZAAC₃ ↑
13. Khoviwa v. The Republic ↑
14. D.D. Basu, ‘Comparative Public Law’, Lexis Nexis Publications,( 3^rd Edn. 2014) ↑
15. (1972) 408 US 238 ↑
16. (1976) 428 US 153 ↑
17. A.I.R. 1973, S.C 947 ↑
18. A.I.R. 1979, S.C.916. ↑
19. A.I.R. 1980, S.C 898 ↑
20. AIR 1983 SC 957 ↑
21. (1983)2 SSC 277 ↑
22. S.303-Punishment for murder by life-convict. —Whoever, being under sentence of [imprisonment for life], commits murder, shall be punished with death. ↑
23. The Ichikawa Hanging Case, (1961) 15 Keishu (7) ↑
24. ↑
25. The Death Penalty Case, (1948) Han II. 191 ↑