Since Indians believe in forgiveness and not in taking revenge, retaining capital punishment goes against our psyche.

World wide, over  140 (as on January, 2001) countries have abolished capital punishment. As such, India is under subtle international pressure to follow suit. That is why this issue is being hotly debated in the national media as well as in legal circles these days. Presently, the death penalty stands on our statute books. However, the Supreme Court (SC) has directed the judiciary to award it in the rarest of the rare cases only.

Again, the death penalty has not yet been banned under international law but the trend towards this goal is clear. It is there for everybody to see in recent international instruments.

For instance, the statute for the International Criminal Court (1998), the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia (1993) have all deliberately excluded the death penalty as an option.

What should India do? Those who want the death penalty to stay want it to be there at least for terrorists and rapists. For other criminals, they want it abolished and replaced by life imprisonment. The protagonists argue that there should be some deterrent to stop senseless people from killing innocent men and women.

To support their case, they quote the famous words of John Stuart Mill in the British Parliament on April 21, 1868 supporting capital punishment. He said that if a person does not show regard for human life and commits an act depriving one of his right to life, he forfeits it for himself. However, Mill also called for utmost judicial circumspection while awarding the death sentence to any one.

There are inherent dangers in retaining capital punishment in the Indian context. One is that justice may be miscarried due to tutored witnesses or social or political pressures for conviction on the one hand, and putting too much trust in the judicial discretion of a particular judge, on the other. "We, the people of India know the demeanour and standard of witnesses produced and therefore, no one is sure that whatever has been given before the court is correct", says advocate D. S. Wasan. How true!

Undoubtedly the death sentence is anachronistic and repugnant. Since Indians believe in forgiveness and not in taking revenge, retaining capital punishment goes against our psyche. "The death penalty is barbaric and inhuman in its effect, mental and physical, upon the condemned man and is positively cruel", says Justice P. N. Bhagwati. "Its psychological effect on the prisoner in Death Row is disastrous".

The death penalty has two great flaws. One, it is irreversible. If a person is hanged on the basis of evidence provided in court, then he is removed from existence. If, however, later it comes to light that he was innocent, then the death sentence carried out on the condemned person becomes a blot on the fair face of justice.

Miscarriage of justice is happening so often that as many as 69 people since 1973 have been released before they could be hanged as per a report of the Death Penalty Information Centre in the U.S.A. This could happen because there are voluntary, as well as, official organisations in America committed to save innocent persons wrongfully convicted of murder.

In India, we do not have such dedicated groups and, as such, there is no hope for those who are sent to the gallows if the death sentence continues. "I shall ask for the abolition of the penalty of death", says the famous jurist Lafayatte, "until I have the infallibility of human judgement demonstrated to me."

People who want the death penalty to stay argue that it acts as a deterrent. This is not a fact. If it were so, the incidence of murder should have vanished from society by now. Instead, it has increased over the years. So, it is a hollow argument and not based on scientific studies or crime research.

Next, if you hang a murderer, you do not give him a chance to change or get transformed or even to make amends for what he may have done in a moment of passion or insanity. There are so many examples of persons who, realising the gravity of the crimes committed by them, became social reformers. Two rose to be called saints like Balmiki and Unglimal.

While those favouring the death sentence, or opposing it, have their arguments supporting their claims, the issue needs dispassionate looking into. It all boils down to the fact that capital punishment has no place in a democratic and civilised society for two potent reasons.