The Use of Human Dignity in Death Penalty Cases: An International perspective
An examination of cases from several jurisdictions that address the legality of the death penalty reveals various uses of the notion of human dignity.
In 1972, in Furman v. Georgia, the United States Supreme Court declared all existing death penalty statutes at the time unconstitutional as a violation of the Eighth Amendment prohibiting "cruel and unusual punishment". There was no majority opinion, and each of the five majority members wrote a separate opinion. While three of them based their decision on the arbitrary and discriminatory application of the death penalty in the U.S., Justices Brennan and Marshall ...view middle of the document...
A majority of the Supreme Court set out obligatory guidelines for the legislatures to follow in order to craft a constitutional capital punishment sentencing scheme. It then decided that Georgia's sentencing scheme met these criteria, and the death penalty was therefore ruled constitutional. The majority ruled that in order to respect the dignity of a man underlying the Eight Amendment, the punishment of criminals should not be excessive. But there was no clear definition of dignity. This time Justices Brennan and Marshall, who reiterated their belief in Furman that the death penalty was unconstitutional, were the only two dissenters. Brennan wrote a decidedly brief opinion that contained his view on Furman, which is that: "the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings – a punishment must not be so severe as to be degrading to human dignity".
In 1980, in Bachan Singh v. Punjab, the Supreme Court of India was required to rule on the matter of the constitutionality of death penalty to a convicted murderer. This was despite the fact that the Indian Constitution allows the state to deprive a person's life, as long as it is established by law. Four of the five justices rejected the petition and declared that death penalty is constitutional if it abides by certain standards and is used reasonably. The majority relied in part on the principle of judicial discretion in not judging capital punishment to be unconstitutional per se. The lone dissenter, Justice Bhagwati, expressed a diverging opinion. From the beginning of his verdict he explains the source of the divergence: "Mine is unfortunately a solitary dissent… by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man". In his view, the Indian Constitution respects the dignity and worth of the individual and protects them from degradation. Therefore, he determined that capital punishment, which he defines as a legally sanctioned "barbaric act" of taking a man's life, is unconstitutional.
It is clear that Bhagwati adopted the same approach as Brennan. In fact, both the majority and the minority in the Indian court referred at length to Gregg and Furman. While the majority uses these cases as evidence that even the U.S. reinstated capital punishment to a substantial degree, Bhagwati used it to side with Gregg's dissenters.
In 1995, in the case of Mbushuu v. Republic, the Tanzanian Court of Appeal upheld the constitutionality of the death penalty. That was despite the fact that the Court found the capital punishment to be contradictory to Article 13(b)(d) and (e) of the Tanzanian Constitution – the right to life and the prohibition of inhuman, cruel, and degrading punishment. The Court approvingly cited Brennan in Furman, and therefore declared that the death penalty is a violation of the...