Substantial number of countries
all over the world as of now does not have capital
punishment as part of their legal system, the highest punishment for
any crimes committed in these countries is determined to be life
imprisonment. A fact that was able to provide different movements and
organisation
all around the world confidence to demand the cessation of capital
punishment at a global level. Such movements at international and
national levels were able to gather popularity and support enough to
make themselves heard in the political sphere of the countries which
still
uphold capital punishment. India is one such country that still
maintains capital punishment as part of its legal system, even though
courts are being directed by the supreme court to pronounce such
punishment in 'rarest of the rare' case.
To the surprise of many, the phrase 'rarest of the rare' which can
take a human life is not defined adequately. Debates and deliberation
in-order to bring forward an adequate understanding of 'rarest of
the rare' are raging in India along with the movements which ask for
the total ban on capital punishment. Arguments are being formulated and
presented in the public sphere by different actors both for and
against these positions.
One of the oft used
argument in support of 'right to life' points towards the possibility of fault with the evidence available with the courts of law while
passing judgements and emergence of certain unknown aspects later,
which might prove the convict to be innocent or to a realization that his/her
part in the incident is not as large as believed to be earlier. When such a scenario emerges if the court wants to rethink its judgement it would
not be possible if the death penalty has been implemented. Even
though this position does require adequate consideration this
particular note does not attempt to engage with it. Rather attempt
here is to enunciate the relationship between the concept of human rights
and capital punishment.
Human rights can be
understood as those inalienable rights which every human individual possess
by the virtue of being a member of human species. As human rights are
inalienable, under no circumstance can it be violated. It stands different in nature from privileged rights (such as the rights emerging
from citizenship) which requires the individuals to perform certain
function or to occupy certain status in order to be able to avail
them. Right to life and individual sovereignty over one's own life
stand at the centre of liberal values. Right to life finds itself as most prominent among human
rights. Article 3 of 1948 Universal
Declaration of Human Rights, adopted by the United Nations General
Assembly declares that everyone has the 'right to life'. If we
subscribe to the conception of human rights which include 'right to
life' then we have to encounter an obvious contradiction that
stares at us, the fact of existence of the death penalty in a number
of countries in the world (including India).
These being said it
becomes imperative to make an attempt to understand the principle on
which a justification for capital punishment is made possible. One way to
conceptualize it is through an understanding of retributive justice system. In a retributive justice system, those who commit a certain set of crimes can be given capital punishment. Such a framework takes away from
the 'right to life' the status of being a human right and reduces it
to a privilege. The merit of this principle rest with the relief that
it provides. It is capable of satisfying those who want certain rights to be recognized as
a human right but still want to maintain capital punishment. It leads to the establishment a conception of human right without
'right to life' being part of it.
Another possibility would
be to bring in a socially constructed definition of human being, that
is, to deny and de-legitimize the identification of a human being as such
just by the virtue of belonging to the human species but to bring in other
considerations (such as not committing certain actions which society
see as inhuman). Unlike the former position where social understanding
of the human being is same as the biological one, here the very idea of being
human stripped off its biological notion. Thus it makes it
impossible to have any human rights as defined at the beginning of
this note.
The conclusion that can
be derived from the discussion above would be that at a conceptual
level those countries which still maintain capital punishment as a
part of their justice system does not conceptually recognize 'right to life' as
human right. At this juncture, doubt can be raised about the existence
of the human rights itself but let us not forget there is one right
which even the most cruel tyrant of our time will claim to have
provided to even his most hated enemy, that is, the right to fair trial. There is not even a single country in this world that would
not argue that it provided everyone within its jurisdiction with a fair
trail. Thus even though there is no consensus among the countries of
the world with respect to the 'right to life' as a human right, the fair trail as an ideal
concept which requires to be implemented globally is accepted. Making
it probably the only human right that no one dares to question.
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