Why death penalty must go

Faizan Mustafa

THE  20th Law Commission of India, on its last day in office, submitted its much-awaited 262nd report. The report runs into 242 pages and, much against the government’s wish, favours the abolition of the death penalty for all crimes except those related to terrorism. Even for terror crimes, the commission admitted that there is no penological justification for treating terror crimes differently. Moreover, there is no evidence of any link between successfully fighting terror and the death penalty. In fact, Britain abolished the death penalty at the peak of terror activities by the Irish Republican Army.

Justice AP Shah deserves commendation for admitting almost all the arguments that abolitionists have been making in India all these years. “Death penalty is a system that is highly fragile, open to manipulation and mistakes and evidently fallible. However objective the system becomes, since it is staffed by humans, and thus limited by human capacities and tendencies, the probability of error always remains open,” boldly concluded the commission.

Justice Usha Mehta and two government secretaries as members of the commission — Sanjay Singh and PK Malhotra — did agree with the report on the ground that the possibility of error is not a legitimate ground of abolishing death penalty; judicial discretion is not unguided or unbridled and the legislature knows best what is good for society.

The report has noted that unlike other countries, India retains the death penalty for as many as 34 crimes under various penal provisions. Even outdated Islamic laws provided capital punishment only for less than half a dozen crimes. It is disgusting to note that as many as 13 provisions provide for the death penalty, even for non-homicide offences which can never be classified as heinous crimes.

The commission did not find any merit in the justifications for retaining the death penalty, be it on the ground of retribution or deterrence or incapacitation or proportionality. The imposition of the death sentence to satisfy society’s cry for justice, or the national conscience, has also been rejected. The commission also argued that the ‘brutalisation effect’ of the death sentence devalues human life in the eyes of citizens and empowers the offender. Accordingly, the commission has recommended the first step: abolish the death penalty for all offences, except terror crimes.

The issue of the abolition of capital punishment was raised for the first time in the Legislative Assembly in 1931, when one Gaya Prasad sought to introduce a Bill to abolish the death penalty, but it was defeated. In 1933, leave was granted to introduce a Bill to abolish capital punishment, but it was never moved. In the post-Independence era, resolutions for the abolition of capital punishment were moved thrice in Parliament, twice in the Rajya Sabha and once in the Lok Sabha, but nothing could be achieved. In 1956, the Central government sought the opinion of all Indian states on the issue of the abolition of the death penalty. All the states emphatically opposed the abolition of capital punishment. In its 35th report, the Law Commission of India favoured a cautious approach and pleaded its retention as an exceptional penalty. After Yakub Memon’s execution, the Rajya Sabha, in response to a private member’s Bill by D Raja, resolved to discuss this issue in the coming winter session.

Justice Bhagwati rightly said in Bachan Singh vs State of Punjab that the death penalty is arbitrary as it depends on the subjective decision of judges and the composition of Benches. It depends on their attitude, predilections and preconceptions, their value system and social philosophy. He said one judge may sympathise with the Naxalites and the other may hate them. The composition of Benches indeed determines the fate of the convict. Thus post-2000, one single judge of the Supreme Court had awarded the death penalty in 14 out of 30 cases. It is painful to note that of these 14, two involved acquittal by the High Court and two others by a Supreme Court judge. Thus any talk of principled sentencing in India remains a distant dream.

The Law Commission is rightly of the view that a difference in opinion of judges is itself a ground not to give the death penalty. Similarly, the death penalty is not to be given on the basis of evidence of an accomplice or just circumstantial evidence. The determination of the ‘rarest of rare’ is nothing but what the commission has rightly termed as ‘legal fiction’. The commission noted that between 2000 and 2015 trial courts awarded the death penalty in 1,790 cases and the Supreme Court found that trial courts had erroneously imposed the death sentence in 95.7 per cent cases. Between 2000 and 2013, the Supreme Court itself awarded the death sentence in 69 cases, of which in 16, it erroneously gave the death penalty, and thus  even the highest court had gone wrong in as many as 23.2 per cent cases. The commission also pointed to the huge regional variations in the award of the death penalty. Thus a murderer in Kerala is about twice likely to get the death penalty as a murder convict in the rest of the country. In Jharkhand, his chances are 2.4 times higher, in Delhi six times higher and in Jammu & Kashmir 6.8 times higher.

In Bariyar vs the State of Maharashtra, the Supreme Court held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight. The Supreme Court has itself admitted that seven of its death penalty judgments were rendered per incuriam (out of error or ignorance) and were contrary to the ‘rarest of rare’. The court has also accepted that it has been arbitrary and inconsistent in using the doctrine of the ‘rarest of rare’.

Finally, it is also questionable whether death is a punishment at all. Caesar’s answer is in the negative: So far as the death penalty is concerned, I can say with truth that amid grief and wretchedness death is a relief from woes, not a punishment; that it puts an end; to all moral ills and leaves no room either for joy…To kill is not to punish… If by death we cut off his joys and happiness in the same measure we cut off his sorrows and humiliation….Death is an asylum, impregnable against punishment.

The death penalty could not, and will not, bring down the rate of criminality, including terror-related crimes. It does not achieve any constitutionally permissible penological goal. The modern penology is changing from crime to criminal and from retribution to real correction of individual and restorative justice. In fact, the death penalty is morally reprehensible and legally untenable and the Prime Minister, as a true statesman, must show the political will to lead its abolition.

— The writer is the Vice-Chancellor of NALSAR University of Law, Hyderabad