THE delay in the hanging of the convicts in the gang rape and murder of a 23-year-old physiotherapist in December 2012 has been a matter of intense discussion. Significantly, the idea that the nation’s “collective conscience” demands that they be hanged has superseded all arguments against the death penalty.
When the senior lawyer Indira Jaising publicly appealed to Asha Devi, the mother of Nirbhaya (the name given to the victim of the gang rape), to forgive the four convicts, she was met with resistance and her locus standi was questioned. As quoted by the news agency ANI, Asha Devi said it was because of people like Indira Jaising that rape incidents did not stop.
A blame game ensued between the Delhi and Central governments on who was responsible for the delay in the execution of the death penalty. Delhi Chief Minister Arvind Kejriwal, while appealing to the BJP not to do “politics” on the issue, said there was a need to join hands to ensure “such a system that the beasts get hanged within six months”. In this context, it is pertinent to revisit the Law Commission recommendations in August 2015 that the death penalty be removed from the statute books excepting in cases dealing with terrorism and waging war against India. The Supreme Court had asked the Law Commission to examine whether the death penalty was a deterrent.
The United Nations Resolution 62/49 in 2007 calls for a moratorium on executions by countries that retained the death penalty. India was among 59 such countries. Significantly, the previous reports of the Law Commission (Report Number 35, 1967) had advocated the retention of the death penalty. The 187th report (2003) dealt with the mode of execution.
India, Report Number 35 said, could not risk the experiment of abolition of capital punishment because of the conditions prevalent at that point, the social upbringing of inhabitants, and the disparity in the level of morality and education in the country. The high crime rate and levels of homicide were deciding factors in retaining the death penalty, it said. At the same time, the report stated that the per capita rate of homicide in India was higher than in countries where the death penalty had been abolished. While recommending partial abolition of the death penalty in 2015, the Law Commission, based on National Crime Records Bureau figures, concluded that murder rates were falling and, correspondingly, the rate of execution had also declined.
In Bachan Singh vs State of Punjab , the Supreme Court observed that the “scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts... judges should never be bloodthirsty”. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality, it held. “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed,” the court held.
The five-judge bench prescribed a set of guidelines to be followed while awarding the death sentence, which included considering mitigating and aggravating factors of the crime and the scope for reformation. In 1973, Section 354 (3) was added to the Code of Criminal Procedure (CrPC), requiring judges to give special reasons for awarding the death penalty.
The arbitrary application of the death penalty remained a concern nevertheless. In 1967, only 12 countries had abolished the death penalty; in 2015, the number rose to 140. The number of active retentionists, that is, countries that had executed at least one person in 10 years, also fell from 51 in 2007 to 39 in April 2014.
Left political parties in India as well as regional parties like the Dravida Munnetra Kazhagam moved private members’ Bills in Parliament calling for the abolition of the death penalty. The Viduthalai Chiruthaigal Katchi and the Marumalarchi Dravida Munnetra Kazhagam also supported this. In 2015, Tripura, which had a Communist Party of India (Marxist)-led government, became the first State in the country to vote on a resolution in the State Assembly against the death penalty.
Around the same time that the CrPC became law in 1973, the Supreme Court, while commuting a death sentence to one of life imprisonment ( Ediga Anamma vs State of Andhra Pradesh ), stated that “a legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life”. In 1979 in Rajendra Prasad and the State of UP , the court held that “the retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea.”
The Justice Verma Commission (2013), which was set up in the aftermath of the Nirbhaya incident, while recommending enhanced punishment for aggravated sexual assault, did not advocate the death penalty. It said “in the larger interests of society and having regard with the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty”. According to the Death Penalty India Report 2016, the majority of those who received death sentences belonged to socially and economically vulnerable communities. Nearly 62 per cent of those sentenced to death had not completed secondary education.
In July 2019, while responding to a private members’ Bill regarding abolition of the death penalty, Minister of State for Home Affairs Kishan Reddy told Parliament that 90 per cent of the States wanted to retain it.
T.K. Rajalakshmi
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