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In fix on death penalty abolition

A Delhi court’s verdict awarding death penalty to one Yashpal Singh for killing two Sikhs during the 1984 anti-Sikh riots is likely to trigger a fresh debate on the contentious issue.

In fix on death penalty abolition


By Satya Prakash

A Delhi court’s verdict awarding death penalty to one Yashpal Singh for killing two Sikhs during the 1984 anti-Sikh riots is likely to trigger a fresh debate on the contentious issue.

The verdict came days after the Supreme Court recalled its six-year-old order that dismissed a review petition against confirmation of death penalty awarded to a man from Maharashtra for killing three persons.

[Should murder convicts be spared the gallows?

The issue has been hotly debated in India for decades. But successive governments have favoured retaining capital punishment on the statute book.

Earlier this month, once again India voted against a UN resolution that called for a moratorium on death penalty, saying it went against its statutory laws. New Delhi maintained that it had a sovereign right to determine its own legal system.

Murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces attract capital punishment.

This year, Parliament passed the Criminal Law (Amendment) Act, 2018, which prescribes death sentence for those raping children below 12 years.

While Parliament continues to add to the list of crimes prescribing death penalty, the SC has been attempting to restrict its scope by a series of verdicts starting in 1983 when it propounded the doctrine of “the rarest of rare cases”. This exposes the dichotomy in India’s approach to death penalty.

In Bachan Singh versus State of Punjab, a Constitution Bench ruled in 1983 that in capital crimes life sentence was the norm and death penalty an exception.

“Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty,” it said.

What is “the rarest of rare” depends upon facts and circumstances of a case. But brutality of the crime, conduct of the offender, his/her criminal antecedents and chances of reform are generally taken into account. Pre-planned, heart-less, brutal, cold-blooded and sordid nature of the crime have to be considered besides the magnitude of the personality of the victim.

After execution of Auto Shankar in Salem in 1995, Dhananjoy Chatterjee was hanged in Kolkata in 2004. Since then, only terror convicts such as Ajmal Kasab (2012), Afzal Guru (2013) and Yakub Memon (2015) have been sent to the gallows.

In the rest of the cases, either the SC reduced the sentence to life term or the President used his power under Article 72 to save them from the gallows.

Even in the case of former PM Rajiv Gandhi’s assassination, the Supreme Court in 2014 commuted the death sentence of three convicts to life imprisonment on the ground of inordinate delay in deciding their mercy pleas.

According to the Amnesty International, there are 106 countries, mostly from Europe, which have abolished death penalty for all crimes while seven have done so for ordinary crimes only. There are 29 others that are abolitionist in practice, taking the total number of abolitionist countries to 142.

There are 56 countries —including India, Japan, the US, China, Iran and Saudi Arabia — which retain death penalty.

Punishment is quite a natural response to a crime and quantum of punishment must be proportionate to the degree of offence committed. Often deterrence is cited as justification for capital punishment and that not awarding adequate punishment to convicts can lead to vigilantism.

But the moot argument against death penalty is that if the state can’t give life, it should not be entitled to take it away either. Also, death penalty is irreversible. What if a convict turns out to be innocent, his execution cannot be undone.

An ideal situation would be where New Delhi joins the abolitionist club. But India is not like Iran, Saudi Arabia or China where the sheer number of executions raises many an eyebrow. It has a robust judicial system that works independent of the Executive and ensures that executions are rare. Given the challenges posed by terrorism and internal security, the government appears unlikely to abolish death penalty even as the popular mood is against it.

Of late, there has been a consensus of sorts to execute death row convicts only in terror cases. With the Supreme Court upholding death penalty awarded to four convicts in July in Nirbhaya case, this consensus would be put to test very soon.

Dichotomy in approach

  • Murder, gang robbery with murder, abetting the suicide of a child or insane person, raping children below 12 years of age, waging war against the government and abetting mutiny by a member of the armed forces attract capital punishment
  • While Parliament continues to add to the list of crimes prescribing death penalty, the SC has been attempting to restrict its scope by a series of verdicts starting in 1983 when it propounded the doctrine of “the rarest of rare cases”

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