By Ruwan Laknath Jayakody
The Law Commission of India noted that the death penalty does not serve the penological goal of deterrence any more than life imprisonment.
In their August 2015 report on the death penalty, they concluded that although retribution has an important role to play in punishment, it however cannot be reduced to vengeance, adding that the notion of ‘an eye for an eye, tooth for a tooth’ has no place in our Constitutionally mediated criminal justice system.
The vagaries of the system also operate disproportionately against the socially and economically marginalised who may lack the resources to effectively advocate their rights within an adversarial criminal justice system, the Commission observed.
The Commission also pointed out that, death row prisoners continue to face long delays in trials and appeals, during which period, the prisoner suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution. The Indian Supreme Court has acknowledged that an amalgam of such unique circumstances produces physical and psychological conditions of near-torture for the death row convict, they added. Furthermore, the death row phenomenon is compounded by the degrading and oppressive effects of the conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions.
Moreover, the infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners breaches the Constitutional barrier against degrading and excessive punishment, the Commission elaborated.
Article 11 enshrined in the Fundamental Rights Chapter of the Constitution of Sri Lanka guarantees freedom from being subjected to torture or cruel, inhuman or degrading treatment or punishment and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 holds that torture or cruel, inhuman or degrading treatment or punishment is an offence.
