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Don't hang 'em
Bikramjeet Batra
 The stage is set for
the UN General Assembly (UNGA) to formally call upon states that
maintain the death penalty to "establish a moratorium on executions
with a view to abolishing the death penalty".
Recently, the third committee of the UNGA passed a moratorium
resolution, the vote being 99 in favour, 52 against, 33 abstentions
and eight absentees.
The 52 naysayers notwithstanding, this is a historic vote. Although
the UNGA had in 1971 and 1977 proclaimed the desirability of
abolishing the death penalty, resolutions calling for abolition of
the death penalty and moratorium on execution were restricted to the
Geneva-based erstwhile UN Commission on Human Rights, an institution
with only 53 states as members.
This is the first time that the UNGA, the UN’s highest body with
membership of all states, would endorse a call for moratorium and
eventual abolition.
Despite not being binding on UN member states, the UNGA resolution
adds strength to an international trend favouring abolition of the
death penalty. This is why it was so fiercely opposed by a motley
group of states led by Singapore.
Those opposing this resolution were predominantly members of the
Organisation of Islamic Countries and the Caribbean. But they also
included US, North Korea, China and Zimbabwe. The loudest opposition
unsurprisingly came from the states that execute a large number of
persons every year (China, Iran, Iraq, US, Pakistan and Sudan
account for about 90 per cent of all executions worldwide) or those
who have among the highest per capita execution rates (Singapore).
It is surprising that India joined the ranks of those voting against
the resolution. Given that India retains the death penalty, a vote
in favour was always unlikely but an abstention would have been
logical. Unlike most of the other countries that voted against the
resolution, India has been moving away from executions in the recent
past, despite rhetorical references to the death penalty by domestic
politicians and the resort to such punishment by the judiciary.
The Indian delegate defended the ‘no’ vote on the ground that this
was largely a question to be determined by sovereign states and that
the draft resolution went against
India’s
statutory law.
The former is a lame
argument given that the death penalty has been constantly held by
various UN bodies to be a human rights concern which cannot be
limited to ‘domestic jurisdiction’; the latter is based on an
incorrect understanding of Indian law.
Under current Indian
law, the decision to execute a condemned prisoner is taken by the
executive, albeit through the president or governor who decide on
the ‘mercy petition’. This is a constitutionally provided power that
is independent of the judicial award of the death sentence.
Therefore decisions, both on execution of a particular prisoner, as
also on not executing any prisoner and declaring a moratorium, are
within the domain of the executive.
Such decision-making does not interfere with substantive Indian law.
Therefore, abstaining or even supporting the recent resolution too
would not violate any Indian legal provisions and would be well
within the right of the government.
While the misinterpretation of Indian law by the Indian delegate is
surprising, his factual reference to executions in India is
shocking. India’s claim in the UN that only one execution had been
carried out since 1995 is contradicted by figures of the National
Crime Records Bureau (ministry of home affairs). Their report,
Prison Statistics: 1996, refers to seven hangings, while the 1997
and 1998 editions provide details of another four hangings.
India merely
abstained from voting on the last resolution on the subject, on
April 20, 2005, at the UN Commission on Human Rights. Given that
there has been no dramatic change of circumstances since, the
present decision to vote against the UNGA resolution is
inexplicable. Should the government not choose to change its vote or
at the very least abstain from voting in the upcoming final round at
the UNGA, it will miss its chance to be on the right side of the
death penalty debate.
Bikramjeet Batra is a Delhi-based lawyer and
researcher. He is also a member of the Anti-Death Penalty Asian
Network, ADPAN.
Courtesy The Times of India
19 December, 2007
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