Towards abolition

THE death penalty is an issue that cannot be decided on the basis of public opinion. If public opinion favours retention of the death penalty, there may still be a case for its abolition on the basis of empirical data on deterrence, decline in crime rates, non-fulfilment of penological purposes, arbitrary award of death sentences by the judiciary and erratic exercise of clemency powers by the executive.

The Law Commission, which decided to examine the issue of the death penalty, appears to have taken a conscious decision not to be influenced by public opinion, which was the unstated basis of its 35th report tabled in 1967, favouring its retention.

Its 262nd report states that public opinion in France supported the death penalty for several years after it was abolished in 1981. It was about two decades after the abolition of the law that opinion in France began to change in its favour.

The report released on August 31, the last day of Justice A.P. Shah’s tenure as Chairman of the Law Commission, recommended immediate abolition of the death penalty for offences other than terrorism and the waging of war, taking legal observers by surprise. The Commission felt that although there was no valid penological justification for treating terrorism differently from other crimes, concerns were often raised that abolition of the death penalty for terrorism-related offences and the waging of war would affect national security. It added: “However, given the concerns raised by the lawmakers, the Commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism-related offences.”

This gave rise to misgivings: did the Commission make a clear distinction between terrorism and non-terrorism cases while recommending the abolition of the death penalty for non-terrorism cases? A close reading of the report suggests that it did not. Those who were involved in the preparation of the report told Frontline that the Commission could not have distinguished terrorism and non-terrorism cases for the purpose of abolition after devoting a whole section to arguing how the penological justification of deterrence was not valid in the case of terrorism-related offences.

The report refers to the stand taken by several people that the death penalty is unlikely to deter terrorists since most of them are on suicide missions and that there are other reasons why the death penalty might increase (italics as supplied by the report) terrorist attacks. “The death penalty is often solicited [italics as in the report] by terrorists, since upon execution, their political aims immediately stand vindicated by the theatrics associated with an execution. They not only get public attention, but often even gain the support of organisations and nations which oppose the death penalty,” the report says. It also highlights the news report on the Bali bomber who beamed and gave a “thumbs up” to the news of his conviction and imminent execution.

The report quotes Jessica Stern, a pre-eminent expert on the issue of terrorism, as saying: “The execution of terrorists, especially minor operatives, has effects that go beyond retribution or justice. The executions play right into the hands of our adversaries. We turn criminals into martyrs, invite retaliatory strikes and enhance the public relations and fund-raising strategies of our enemies.” It also refers to Jeremy Bentham, the pioneer of the deterrence theory, as having said that executing “rebels” (who can be equated with today’s terrorists) would not deter potential rebels but only make the executed person a martyr and inspire potential followers.

Balancing exercise

Therefore, the apparent (but not real) distinction made by the Commission between terrorism and non-terrorism cases must be understood as a balancing exercise of appeasing those who believe that abolition of the death penalty for terrorists is not advisable at this juncture and of making the first move towards the goal of absolute abolition.

It is clear from the report’s conclusion that it is necessary to debate the need for abolition of the death penalty in all respects in the very near future. The report reiterates this view by recommending that the method for abolition should be compatible with the fundamental goal of achieving “swift and irreversible, absolute abolition”. It implies that the abolition of the death penalty should, in a phased manner, apply to terrorism cases as well once the Commission is successful in persuading those who now remain unconvinced about the logic of absolute abolition.

The Commission thinks that there is a sharp division among lawmakers on this issue. This division appears to have convinced it that the time is not yet ripe for abolition of the death penalty for all offences. Releasing the report at a press conference in New Delhi, Justice Shah said several countries, including Britain, abolished the death penalty in phases in order to prepare public opinion in favour of the change, and that this made practical sense.

The Commission probably believes that India should move from the era of reform of the death penalty to the era of abolition. As a corollary, it believes that if we are stuck between those who want to abolish the death penalty for terrorists and those who do not, then we are unlikely to make the next move to enter the abolitionist era.

It is also clear that the Commission opted for the balancing exercise in order to muster a majority within it in favour of abolition. R. Venkatramani, part-time member of the Commission and a senior advocate, favours abolition of the death penalty but feels that the death penalty for terrorism may be justified as a moral principle, if not by public opinion. In a letter addressed to Justice Shah on August 18, he claimed that he spent many anxious moments on this issue only to assure himself that we could not close our minds to extreme human conduct that is beyond penology or blind to sanity.

Despite his reservations, Venkatramani went along with the majority, which recommended swift, irreversible and absolute abolition because the Commission accepted the subtle distinction between terrorism and non-terrorism offences for the time being. Three of the 10 members dissented from the views expressed in the report. They are Justice (retd) Usha Mehra and two ex-officio members, P.K. Malhotra, Law Secretary, and Dr Sanjay Singh, Secretary, Legislative Department. The Commission consisted of the Chairman, three full-time members, two ex-officio members, three part-time members, and one member-secretary.

Goaded by the court

The report also kept open the option of absolute abolition of the death penalty. As the Commission did not wish to commit itself to a particular approach to abolition—moratorium or a full-fledged abolition Bill—it did not see any merit in going into the details of such an approach.

Unlike its previous report on the death penalty, which was prepared on a request from the government, this time it was the Supreme Court that goaded the Commission to undertake the exercise. The Commission received a reference from the court in two cases— Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Shankar Kisanrao Khade vs State of Maharashtra (2011).

In the Khade case, the court had expressed its concern over the lack of a coherent and consistent purpose and basis for awarding the death penalty and granting clemency. The court wanted to lay down a jurisprudential basis for awarding the death penalty. It said that the death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. The court wanted the Commission to examine whether the death penalty was a deterrent punishment or was retributive justice or served as an incapacitative goal.

It also wanted the Commission to consider how the executive took a diametrically opposite opinion in most cases and commuted the death penalty.

In the Bariyar case, the court referred to the 2007 United Nations General Assembly resolution calling upon retentionist countries to establish a worldwide moratorium on executions with a view to abolishing the death penalty. India is one of the 59 nations that retain the death penalty. The court wanted credible research to be done in order to facilitate an up-to-date and informed discussion and debate on the subject. There is no doubt that given the volume of information the report carries, it will achieve this purpose.

However, on other aspects of reference, the report’s silence may be intriguing. It is because the report has concluded that exceptionalism in the award of the death penalty has lost its relevance. The court’s creation of the rarest of rare doctrine in the Bachan Singh case in 1980 was the high point of this exceptionalism. However, the history of the application of this doctrine has never been satisfactory even to the apex court as it has resulted in greater arbitrariness in the award of the death penalty. Had the Commission tried to answer the court’s reference by suggesting more and better safeguards in order to clear the uncertainty and confusion, it would have further narrowed the exceptional category under which the death penalty might be justified, but as a result, the scope for arbitrariness in its award would have increased. To put an end to this vicious cycle of greater exceptionalism leading to greater arbitrariness, the Commission decided to recommend swift, irreversible and absolute abolition of the death penalty.

It concluded that there was no principled method to remove such arbitrariness from capital sentencing. One could not treat different cases on the same footing; therefore, standardisation and categorisation of offences would not help, it observed, while blaming the vagaries of the system that operate disproportionately against the socially and economically marginalised.

The report rightly states that a great deal has changed in India, and indeed around the world, since December 1967 when the Commission recommended retention of the death penalty. The incidence of murder has been in continuous and uninterrupted decline since 1992, when it was 4.6 per lakh of population. From 2.8 in 2012, it declined to 2.7 in 2013. The decline has coincided with a corresponding decrease in the rate of executions, raising the question whether the death penalty has a greater deterrent effect than life imprisonment.

The National Crime Records Bureau records that on an average 129 persons are sentenced to death every year, roughly one person every third day. In the Khade case, the court acknowledged that the death penalty was being applied much more widely than was envisaged in the Bachan Singh case.

In August 2015, the Tripura Assembly voted in favour of a resolution seeking abolition of the death penalty. On July 31, D. Raja of the Communist Party of India introduced a Private Member’s Bill asking the government to declare a moratorium on death sentences pending abolition of the death penalty. In August 2015, Kanimozhi, Member of Parliament belonging to the Dravida Munnetra Kazhagam, introduced a Private Member’s Bill in the Rajya Sabha seeking abolition of capital punishment.

In 1967, only 12 countries had abolished capital punishment for all crimes in all circumstances. Today, 140 countries have abolished the death penalty in law or in practice.

Former President A.P.J. Abdul Kalam had sent a response to the Commission’s consultation paper highlighting the discriminatory impact of the death penalty. These are indeed positive signs in favour of abolition of the death penalty in India. However, until the government is ready to bring about abolition through the legislative route, the judiciary is the only hope for death-row prisoners.

One area of reform that the report hints at is the redress of the lack of access to quality legal representation, particularly at the trial stage, which results in ill-trained lawyers having to argue before inadequately guided judges on an incoherent area of law.

The other proposals are the establishment of an effective victim compensation scheme, a witness protection scheme and police reforms so that the death penalty is not seen as the ultimate measure of justice to victims.