 Hello and welcome to NewsClick. Nearly 140 countries today have abolished capital punishment or have stopped death penalty from being awarded. In 2007, the United Nations General Assembly had called upon countries which have not abolished death penalty to institute a moratorium. Yet in India, despite the Supreme Court saying that this punishment would be awarded only in the rarest of rare cases, close to 106 cases of death penalty have been instituted last year alone. We have with us here Advocate R. Vaigai who practices in the Madras High Court and who has appeared on behalf of three convicts in the Rajiv Gandhi assassination case, Santan, Murugan and Pereri Valan recently. Welcome to NewsClick. Advocate Vaigai, the Madras High Court recently state the execution of the three convicts by eight weeks. Apparently the grounds was that there has been an inordinate delay in addressing the messy partitions that they had filed post 11 years ago. But could you elaborate as the lawyer for them the rationale behind this state? No, the rationale is see any punishment ought to be first of all the Universal Declaration of Human Rights, Article 5 says that no person shall be subjected to torture or inhuman and cruel penalty also. So when you, I mean, death penalty itself is a cruel penalty. You can't brutalize it further by making a person wait for execution for several years. And that is the logic and the Supreme Court has said that firstly unfortunately our laws prescribe death penalty and therefore the court has said it is unable to say death penalty shall not be awarded. It has affirmed the constitutional validity of the provision which awards death penalty. But at the same time it has confined the grant of death penalty or awarding death penalty to the rarest of rare cases which again is not defined. Supposing something is very gruesome or something which is very abhorrent to human conscience in such cases it could be awarded. But again the assessment changes from judges to judges. Therefore in order to minimize the aggravated form of the penalty the court has laid down a rule saying that if you delay the execution beyond any reasonable period then the prisoner is entitled to say that the execution shall not take place and that the penalty should be reduced to life. Now what is the reasonable time that again is a little flexible. Judgments, some judges have said three months after the mercy petition. Some judges, I mean, courts have interfered after two years or after six years or eight years. So it varies. But by any artistic level it is too long a time. It's too long. It's definitely too long. Does death penalty at all seem to be deterrent against the gruesome crimes or heinous crimes? Definitely not. It has been, in fact, the UN General Assembly called for a study on capital punishment and its impact and the deterrent value thereof way back in 1958. And thereafter they have met seriously over the issue over a period of time, every decade. And in 2005 they concluded that it has no deterrent value at all. And on the other hand it has resulted in execution of innocent people or people who have been denied fair trial or people who have been wrongly prosecuted. Therefore the General Assembly called for abolition. Several states by then had abolished. It started calling for moratorium. So 2005 onwards, periodically 2006, 2007 and 2008, they have asked for moratorium. Now today out of the 192 states, two-thirds of the countries have abolished or do not practice, apply in practice. The whole of Europe, the whole of Central Asia except Belarus have abolished death penalty. Ironically the most populous country, China and possibly the most powerful country in the United States, they still continue to practice death penalty. They do, but in fact judges of the US Supreme Court have said that death penalty is pointless and it has not served any social purpose. So even in the Americas, South and North except United States, all the other countries have abolished. India, we do have the provision of life imprisonment without remission. So that makes it even expressly clear that that penalty can be avoided and should be abolished. Yes, see ultimately you have to understand that people worldwide have jurists and those in governance have realized that death penalty as a deterrent conceptually is not valid and therefore you have to think of the other purposes of penal regime namely reformation or retribution of course has gone. Retribution cannot be applied at all because it is absolutely uncivilized. Now if it is not deterrent, then you have to think of reformation. Reformation can happen only if the man is alive and therefore you award life sentence and study the person's conduct over a period of time, give him a chance to reform. You mentioned quickly that there is also the possibility of wrongful conviction. Now in a highly iniquitous class society, which is India is relatively so even now, there is a higher possibility of wrongful conviction especially of people who belong to the lower classes, lower segments etc. So that also makes it important that that penalty should be abolished. Yes, in fact judges themselves have said that nobody can be 100% sure in a case that the conviction is right. Now if you are not 100% confident that the conviction is right, how do you justify taking away a person's life? Because it is an irreversible process. So judges left to themselves I do not think will award capital punishment at all. But because the law mandates it and of course there is an element of discretion. There is a very minuscule of judges who really want to avoid death penalty. People who have had long innings in the judiciary know the faults in the system, know the kind of variations in assessment of evidence, in presentation of the case, in the lack of legal representation for the defence. Everything goes together. Again we talked a little bit about retribution. Although retribution has no place in jurisprudence that is pretty clear. Yet if you look at public discourse in the country today, when you talk about the rational behind death penalty or its abolition, people generally come up with this argument or especially victims. They say that look I have suffered such a big loss and X or Y has been responsible for that. And therefore as retribution I have to be satisfied with that penalty for X or Y. Certainly there are lack of this argument. See if the victim says that killing suffered by the family member is barbaric and savage. I do not see how it becomes a civilized act just because the law mandates it. So basically the argument is flawed. Secondly, see you have large scale violence these days taking place. Even state sponsored terror like what happened in Gujarat which is still being probed. Now supposing take for example what Mr Sanjay Bhatt has said, Sanjeev Bhatt or the police officer, saying that it was a chief minister who instructed the police officers to act in a particular way. Now the thing is being still probed. Now I am asking the question supposing ultimately what he says comes true. Now are you going to hang all the thousand policemen in Gujarat? It is no answer at all. When large scale violence take place how many people are you going to take for example the Sikh riots? There is a large perception among the Sikh community that it was the state apparatus also that failed. So are you going to execute all the policemen in Delhi? It is not an answer. Many people who argue for death penalty for the most heinous of crimes don't realize that life imprisoned without remission is also a tough punishment that is difficult to endure. Absolutely only difference is that you give the man a chance to reform and give back something to the society and say sorry ultimately which may happen. So in that sense society remains civilized and does not replicate what the murderer has done. Yes and you do not generate hate on a continuous basis. It has a chain reaction. Thank you so much. Thanks for your views on this subject.