Debating death

Print edition : August 21, 2015

Justice Ajit Prakash Shah, Chairman, Law Commission of India. Photo: Sandeep Saxena

The broad consensus on abolishing the death penalty at the Law Commission’s consultation with political leaders and eminent citizens augurs well for the campaign against capital punishment.

With a view to eliciting views from a cross section of civil society on the question of abolition of capital punishment, the Law Commission organised a consultation with lawyers, jurists, academics, political leaders, eminent citizens and journalists in New Delhi on July 11.

The consultation, inaugurated by former West Bengal Governor and eminent author and columnist Gopalkrishna Gandhi, brought together politicians of different hues on the same platform. Manish Tiwari of the Congress party and Ashish Khaitan of the Aam Aadmi Party (AAP) spoke about the arbitrariness and discrimination in the application of the death penalty.

Brinda Karat of the Communist Party of India (Marxist) explained her party’s position on the state of the criminal justice system and the possibility of error in adjudicating capital offences. Shashi Tharoor of the Congress and Kanimozhi Karunanidhi of the Dravida Munnetra Kazhagam (DMK) participated in the panel on the penological purposes of the death penalty and its alternatives. Varun Gandhi of the Bharatiya Janata Party (BJP) also said abolition of the death penalty was the way forward. Such consensus among political leaders belonging to different streams on the issue augurs well for the success of the campaign against capital punishment.

Although a few participants, like the senior Supreme Court advocate Dushyant Dave and noted academic Prof. N.R. Madhava Menon, supported retention of the death penalty, most participants suggested that the Commission recommend abolition of the death penalty through an amendment of law. When the Commission releases its report, it will become a valuable component in the national campaign against the death penalty and a useful instrument for those who wish to make a fresh attempt in the Supreme Court to challenge its constitutionality.

The July 11 consultation is an ongoing effort of the Commission to engage with the question of abolishing capital punishment. In 2014, it accepted in right earnest a suggestion from the Supreme Court that it should take up credible research to facilitate an up-to-date and informed discussion on the issue.

The court’s suggestion was made in its judgment in the Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra, decided in 2009. In Paragraph 112 of this judgment, the Supreme Court referred to the United Nations General Assembly’s Resolution 62/149, adopted on December 18, 2007, calling upon countries that still retained the death penalty to establish a worldwide moratorium on executions. The court regretted the fact that India was one of the 59 nations that retained the death penalty in 2009. Similarly, the court, in the Shankar Kisanrao Khade vs State of Maharashtra, decided in 2013, suggested that the Law Commission examine whether the death penalty was a deterrent punishment or retributive justice or if it served an incapacitative goal. In Paragraph 149 of this judgment, the court admitted that the judiciary and the executive were treating the lives of convicts convicted of an offence punishable with death with different standards. While the standard applied by the judiciary is the “rarest of rare” principle (however subjective or judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known, the court said, and requested the Law Commission to consider this aspect too.

For the Law Commission it was a precious opportunity to revisit the subject, which had remained out of its research interests for the past 50 years. As a premier think tank, funded by the government to facilitate law reform, the Law Commission assembles the widest possible inputs from the public and interest groups concerned, before using the data for an informed report with proposed legislation, to be forwarded to the government.

The present Twentieth Law Commission, whose three-year term ends on August 31, has specific terms of reference, which include review/repeal of obsolete laws, examination of laws that affect the poor, gender equity, and review of the judicial administration to make it responsive to the needs of the times. This will be the Commission’s second report on the subject.

In 1962, the Law Commission began to consider the issue of abolition of capital punishment from the statute books, on a reference made to it by the government when the third Lok Sabha debated a resolution moved by Raghunath Singh, a member, in its favour. It released its 35th report in 1967, recommending retention of the death penalty.

As the present Law Commission’s consultation paper on the subject says: “Many of the conclusions arrived at by the Law Commission (in 1967) were based on deductions on general elements of cultural and social life as it existed then. Also, some of the indicators considered by the Commission such as those on education, crime rates et al have drastically changed in the last half a century.”

The 35th report had concluded that capital punishment could not be abolished even for a fixed period of time as an experiment, as it apprehended an intervening era of violence between its abolition and reintroduction.

The current Law Commission noted that India underwent an execution-free period of seven years between 2004 and 2012, and pointed out that data from the National Crime Records Bureau did not convey any particular spurt in the crime rate during the period.

The 35th report of the Law Commission was duly cited by the Supreme Court in its landmark judgment in Bachan Singh vs State of Punjab in 1980, which held the death penalty as constitutional, and laid down the “rarest of rare” doctrine, which requires that death be awarded as punishment only when alternative options are unquestionably foreclosed.

The current Law Commission has justified revisiting the subject because the 35th report does not discuss in detail the apprehensions regarding the arbitrary use of the court’s discretion in death sentences.

To quote from its consultation paper: “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context, it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.”

It also says: “In contemporary judicial developments, with fairness norms more stringent than ever before, the Supreme Court has in the last five years repeatedly expressed anxiety about uneven application of death penalty as also miscarriages occasioned in death penalty cases.”

The Twentieth Law Commission has expressed serious doubts on whether the existing power of mercy is an adequate safeguard against erroneous convictions, considering that the Supreme Court, in the recent case of Shatrughan Chauhan vs Union of India, commuted the death sentence of 15 convicts to life imprisonment on the grounds of violation of their fundamental rights owing to inordinate delay by the government in deciding their mercy petitions.

The Commission further pointed out that worldwide over 140 countries had abolished the death penalty, and over 20 other countries, though retentionists, had not executed anyone in 10 years. This change in circumstance between 1967 and now justifies a fresh look on the subject, it reasoned.

The Commission has shown that many of the conclusions arrived at by the earlier Law Commission in its 35th report, in relation to deterrence, retribution, profile of crime, systems of punishments, alternatives to death sentence, etc., are dated. “These themes have seen exhaustive and far more rigorous academic work since then and need fresh consideration,” it said.

Though the Law Commission presented its 187th report on the limited issue of “Mode of Execution of Death Sentence and Incidental Matters” in 2003, the substantial question of desirability of the death penalty was not part of the report, and the then Law Commission did not express any view on this matter. There will be a great deal of interest in the responses to the 16-point questionnaire that the current Commission has sent to different wings of the government, legislature, and the judiciary, apart from those active in civil society.

The 1967 report justified retention because of the overwhelming response to its questionnaire eliciting views from judges of the higher judiciary and members of Parliament and State legislatures favouring retention. If the mood at the July 11 consultation is any indication, the dominant responses to its questionnaire may well be the opposite.

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