The question of abolishing the death penalty in India has become imminent due to several pending executions of convicts. The last execution was in February 2013, when Afzal Guru, a conspirator in the Parliament attack case, was suddenly hanged in callous secrecy after he awaited his execution for over five years. Presently, 70 per cent of the world’s states, that is, 150 out of 198, have abolished the death penalty, including for terror crimes, as it serves no purpose and its execution has been found to be inhuman. India is one of few countries, including China, Iran, and Saudi Arabia, that has retained the death penalty.
Recently, Nobel laureate Amartya Sen, economist Jagdish Bhagwati, Justice V.R. Krishna Iyer and a number of other eminent persons from different walks of life called for the abolishment of the death penalty in India, as it is cruel and has no deterrent value. The UN General Assembly by a resolution in December 2012 has called for a moratorium on the death penalty, which was adopted by 111 member states.
In India, those who favour the death penalty rely on the majority judgment by the Supreme Court in Bachan Singh vs State of Punjab in 1980. The SC held the imposition of the death penalty to be legal, but it comforted opponents of the death penalty by stating that it should be imposed only in “the rarest of the rare cases”. Every imposition of the death sentence on a convict now states ritually that it is a rarest of the rare case. This mantra is not only vague but also highly arbitrary, subjective and discriminatory. We may ask, how does one distinguish between an ordinary murder and a “rare” murder, and among “rare” murders, how does one find the double-distilled essence of “the rarest” murder. It does not help to describe a murder as brutal, grotesque, heinous and so on, as judges invariably do. An ordinary person could fairly so characterise every murder. Ultimately, judges award the death penalty or life depending on their own sensitivity and values. Each judge will easily find “special reasons” for awarding the death sentence according to his own perception of the gravity of the murder. Justice P.N. Bhagwati, who wrote a powerful dissent in the Bachan Singh case, two years later showed how arbitrary this formula was when one bench of the SC imposed the death penalty on one of the murderers and another bench later did not impose it on another murderer in the same case.
Thirty-four years after the Bachan Singh case, it is now clear that the supporting reasons for the retention of the death penalty are no longer valid. The majority judgment stated that only 18 states in the world had (then) abolished the death penalty. The situation now has changed. A majority of the states in the world have abolished the death penalty. Even in the US, which is generally averse to abolishing the death penalty, 18 out of 50 states have done away with it. The SC in the Bachan Singh case heavily relied on the 35th Report of the Law Commission of India, 1967, which favoured the retention of the death penalty. But in August 2014, the Law Commission issued a public consultation paper calling for a fresh debate on the retention of the death penalty in India.
In the Bachan Singh case, the majority judgment was of the opinion that the death penalty was a deterrent to murder. Today, it has been statistically established that the death penalty does not act as a deterrent. A survey conducted by the UN in 1988 failed to provide any evidence that executions were more of a deterrent than life imprisonment. In Canada, the homicide rate declined after the abolishing of the death penalty in 1976. A survey released in 2000 by The New York Times found that during the last 20 years, homicide rates in states with the death penalty were 48 to 100 per cent higher than in those without the death penalty.
A common justification for the death penalty is that it is revenge and retaliation for murder. It is said that the revulsion felt by society against the murderer can be satisfied only by his death. It is not realised that revenge is an elementary passion that lacks refinement. A civilised society that believes in the dignity of the human person cannot have retaliation as a justification for punishment. A former president of Chile, Eduardo Frei, said, “I cannot believe that to punish the person that kills, the state should in its turn kill. The death penalty is as inhuman as the crime which motivates it.” The aspect of retribution being unjustified was not considered by the majority in the Bachan Singh case.
One of the most important reasons to abolish the death penalty is the brutality of hanging the convict. In India, we have retained this method to carry out the death penalty. The hanging of a convict is carried out in secrecy. Hanging seeks to break the neck by withdrawing the trap on which the convict stands. Often the neck does not break by the drop and the prisoner strangles to death. If the drop is too short, there could be slow and agonising death by strangulation. There is considerable evidence to show that hangings are often cruelly botched. That is why it has been replaced in US states with lethal injection. But even with lethal injections, the execution is sometimes botched and painful, which has led to a demand in the US for its abolition. The California court recently held it to be cruel and illegal.
The experience in India almost invariably is that the death sentence is given to accused from poor and marginalised sections of society.
Often, the accused is defended by a novice of a lawyer. One does not come across any case of death penalty being inflicted on those who are better off and can engage skilled lawyers. What Justice Douglas said in the US has application with greater force in India. “It is the poor, the sick, the ignorant, the powerless and hated who are executed,” he said.
We cannot depend on Parliament to abolish the death penalty, as was done in the UK. The Indian Parliament is not sensitive to such matters. It has not taken any initiative on abolishing the punishment for gay relationships or to legalise euthanasia. In a landmark decision, our SC on January 21 held that prolonged delay in the disposal of the mercy petition by the president, causing agony to a death-row convict, is a good ground to set aside the sentence and commute it to life imprisonment. The next step for the humanitarian jurisprudence of our SC is to reconsider the majority judgment in the Bachan Singh case and put India in the category of states in the world that have abolished the death penalty.
The writer, a senior Supreme Court advocate, was former solicitor general of India and former advocate general of Maharashtra
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