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Malawi Supreme Court abolishes Death Penalty, “Right to life is a mother of all rights” and India’s stand on Death Penalty

“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars.” -Martin Luther King, Jr.

28th of April 2021 was a historical day in the history of Human Rights. This day a nine judges bench headed by Chief Justice Nyirenda of the Supreme Court of Malawi pronounced a significant judgment in Khowiva v. Republic. In this judgment, the court declared that the capital punishment given to the convicts is unconstitutional as it violates the Right to life enshrined in the constitution. With this Judgment Malawi (Formerly known as Nyasaland) became 22nd Country in Sub- Saharan- Africa to abolish the death penalty. This blog tries to analyze the significance of this landmark decision. 

Death Penalty violates Human Rights

The death penalty is the severe most and inhuman punishment prevalent in many parts of the world. According to Amnesty, some countries execute people even below 18 years of age when committing any crime. Some even pronounce the death penalty to those who have mental and intellectual disabilities.  This is a clear violation of International Human Rights law. As the right to life is protected under the Universal Declaration of Human Rights recognized by the United Nations in 1948. 

Since then many international and national organizations had tried to limit the use of the death penalty. In 1966, International Covenant on civil and political Rights was adopted and many were of the view that it was a step towards abolishing Death Penalty however it was not done so. Although International law restricts the use of Capital Punishment for some specific crimes Organizations like Amnesty demands a complete ban on Capital Punishment. 

Death Penalty is Unconstitutional, Says Malawi Supreme Court

This landmark judgment came after when an appeal was filed by Charles Khiviva who was convicted for murder and was sentenced to death by the lower Court. Nine Judge bench was constituted for the hearing and with 8:1 overwhelming majority appeal was allowed. The only dissenting opinion was given by Justice Twea and the Majority judgment was written by Justice DF Mwaungulu. The majority judgment referred to the provisions of Malawi’s Constitution and said that the constitution does not provide for the death penalty as it upholds the right to life. It regards the right to life as the mother of all rights and all other rights cannot exist without this right. The court observed, “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 death penalty not only negates, it abolishes the right.”  The court further held that sections 25, 26, and others that provide the death penalty in criminal offenses derogate the right to life. Since it is a derogation of the Right to life so it cannot be permitted. 

Apex Court further held that laws that prescribe death as one of the sentences must be read with the maximum punishment of life imprisonment i.e. Sections 25(a), 26, 38(1), 63(1), 133, 210, 217 (2)(a) and 309(1)(2). The court further ordered the re-sentencing of those convicts who are on death row.  

Death Penalty in India

Several members of the Constituent Assembly were of the opinion to abolish Death Penalty by incorporating it in the Constitution. However, no such provisions were incorporated in the Constitution. Article 21 of the Indian Constitution says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It means that a person can only be deprived of his life with the Procedure established by law. Indian Penal Code, 1860 specifies certain offenses which fall within the ambit of Death Penalty i.e. Section 120B (Punishment of Criminal Conspiracy), Section 121 (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), Section 132 (Abetment of Mutiny), Section 302 (Punishment for Murder), Section 396 (Dacoity with Murder) and some others.  Other than IPC, 1860 several legislations have provisions for Capital Punishment such as The explosive Substance Act 1908, The Narcotics Drugs and Psychotropic Substance Act 1985, and many others. 

It was the case of Jagmohan Singh v. the State of UP when the constitutional validity of the Death Penalty was challenged in Apex Court. The court held the validity of the death penalty and found it consistent with constitutional norms and Fundamental Rights. Later again in several cases, Honorable Supreme Court has upheld the constitutional validity of the Death Penalty and has laid down the principle of “Rarest of Rare”. This principle was established in a landmark case of Bacchan Singh v. the State of Punjab . Supreme Court in this case held that the death penalty is not unreasonable nor it is against the public interest and upheld the constitutional validity of it. However, it should only be given in exceptional circumstances and in the rarest of rare crimes. But the court hasn’t specified what exactly constitutes Rarest of rare crimes. 

Law Commission of India stands looks somewhat against the applicability of the Death Penalty. Law Commission on its 262nd report recommended that Capital Punishment should be abolished for all offenses except for the offense relating to Terrorism and Waging War. 

Why the death penalty should be continued and why it shouldn’t?

The reasons why the death penalty should be continued are as follows:

  • Deters future Criminal: Punishment like the death penalty creates a sense of frightening among the wrongdoers. This prohibits them from committing crimes in the future. 
  • Cannot be escaped: There are incidents when heinous crime doers would have escaped from the Prison and have committed crimes against the prosecutors or innocent people. 

The reasons why the death penalty shouldn’t be continued are as follows:

  • Mistakes by Judiciary: Judiciary consists of Judges and Judges are Humans too and can make mistakes too. There might be a situation when an innocent can be wrongly convicted by the Court of law. 
  • Perpetrate further violence: The very idea of Capital Punishment might further increase violence in the name of Retribution(Revenge). 
  • Most importantly, Criminal Punishment is cruel and Harsh. It violates the basic Human Rights provided to every individual. 

Chad abolished the death penalty

Last year in April 2020, the National Assembly of Chad abolished the death penalty for all crimes. In 2014 government of Chad adopted a criminal code which was approved by National Assembly in Dec. 2016 abolishing the death penalty for all crimes. However, that code does not repeal the counter-terrorism law which maintained the death penalty. 

The law adopted by Chad’s National Assembly on 28th April 2020 is the complete abolition of the death penalty in Chad as it also applies to terrorist activities.   

Conclusion

142 countries have abolished the death penalty in law or practice. However, still, a large number of countries continue to practice it esp. Asian Countries. The ruling of the Malawi Supreme Court of Appeal is a great stepping stone towards the abolition of the death penalty and victory of human rights not only in Malawi but also in other parts of the world. 

As far as India is concerned, it has upheld the validity of the Death Penalty, although in a restricted manner. All thanks to the Judiciary which has played a very important role in properly channelizing the provisions of Capital Punishment. 

This article has been co-authored by Yashonandini Chauhan from Amity University, Gwalior and Dheeraj Diwakar from Dr. Ram Manohar Lohia National Law University, Lucknow.

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