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Tuesday, February 18, 2020

Beyond The News: The Debate over Death

How have India’s Parliament, Law Commissions and the Supreme Court dealt with the question of capital punishment and the many issues it raises?

Written by Rahul Tripathi | Updated: March 14, 2018 8:57:47 am
death penalty in india, abolish death penalty, death penalty, states and uts on death penalty, law commission, justice a p shah, capital punishment Between 2000 and 2012, Indian courts passed 1,677 sentences of death, according to NCRB data. During 2004-12, convictions were recorded in 1,80,439 cases involving murder (Illustration: C R Sasikumar)

As many as 12 out of 14 states and Union Territories who responded to a proposal by the Home Ministry to abolish the death penalty have expressed a preference for persisting with the practice, possibly ensuring that India will stay, for now, among the minority of countries that allow capital punishment. The debate on the death penalty in India predates Independence.

The beginnings

In 1931, an attempt was made to introduce in the Central Legislative Assembly (which came into existence after the elections of September 1930) a Bill to abolish the death penalty for offences under the Indian Penal Code by Babu Gaya Prasad Singh, an elected member from Bihar. The motion for circulation was defeated, and days later, on March 23, 1931, Bhagat Singh, Rajguru and Sukhdev were hanged. Later that year, at its session in Karachi, the Congress moved a resolution demanding the abolition of the death penalty.

Between 1947 and 1949, the Constituent Assembly debated a range of questions around the death penalty — its judge-centric nature, possible arbitrariness in imposition, its discriminatory impact on the poor, and the possibility of error. Dr B R Ambedkar, chairman of the Drafting Committee, was personally in favour of abolition: “…Rather than have a provision for conferring appellate power upon the Supreme Court… in cases of death sentence, I would much rather support the abolition of the death sentence itself. That, I think, is the proper course to follow… This country by and large believes in the principle of non-violence… and although people may not be following it in actual practice, they certainly adhere to (it) as a moral mandate… The proper thing… to do is to abolish the death sentence altogether.” Babasaheb, however, suggested that the issue be left to Parliament to decide.

Read | Death penalty should stay, say 12 out of 14 states, UTs

Subsequently, during discussions in Lok Sabha in 1952 and 1954 on Congress member M A Kazmi’s Bill to amend IPC Section 302 (punishment for murder), the question of abolition of the death penalty came up. In 1956, Mukand Lal Agrawal, a Congress member of the first Lok Sabha, moved a Bill seeking to abolish the death penalty. It was discussed and rejected after the government opposed it.

Between 1958 and 1962, three resolutions in favour of abolition were moved. Those in favour argued that the idea of deterrence was ineffective and outmoded, that man was on the whole redeemable, and that legal murder was murder, too. Those against said a “right to kill without punishment” could not be allowed, and many countries which had experimented with abolition were being forced to reconsider.

Nominated member Prithvi Raj Kapoor moved the first resolution in April 1958 — of the 14 MPs who took part in the debate, nine spoke against. Home Minister Govind Ballabh Pant said: “If we want less (murders), then we have to maintain the sentence… I think everyone would wish that nobody was killed, nobody could be hanged — but we have to look at the question from practical angle…”

The next resolution, moved in Rajya Sabha by Congress member Savitry Devi Nigam, was debated in August 1961. Of the 19 MPs who took part, six favoured the abolition of the death penalty.

Only five out of 14 MPs who spoke, supported the resolution that Raghunath Singh, the Congress member from Varanasi, moved in Lok Sabha in April 1962.

35th Report, Law Commission

In 1967, in its 35th Report on ‘Capital Punishment’, the Law Commission of India, under the chairmanship of Justice (retd) J L Kapur, recommended the retention of the death penalty: “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order… at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

187th Report, Law Commission

In 2003, the Commission, under the chairmanship of Justice (retd) M Jagannadha Rao, submitted its 187th Report on ‘Mode of Execution of Death and Incidental Matters’, focussed on the method of execution, process of eliminating differences in opinions among Supreme Court judges on passing a death sentence, and need to provide a right of appeal on death sentences. The Report recommended that Section 354(5) of the CrPC (“When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”) be amended to allow for lethal injection, too, and that there should be a statutory right of appeal to the Supreme Court where a High Court confirms a death sentence, or enhances the sentence to death. It also suggested that all death sentence cases should be heard by at least a five-judge Bench of the Supreme Court.

262nd Report, Law Commission

In its 2015 Report on ‘The Death Penalty’, the Commission, under the chairmanship of Justice (retd) Ajit Prakash Shah, recommended the abolition of capital punishment “for all crimes other than terrorism related offences and waging war”. It said: “…The notion of ‘an eye for an eye, tooth for a tooth’ has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals… In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems… such as poor investigation, crime prevention and rights of victims of crime.”

Supreme Court’s observations

In his minority judgment in Bachan Singh vs State Of Punjab (May 9, 1980), delivered on August 16, 1982, Justice P N Bhagwati struck down IPC Section 302 as “unconstitutional and void as being violative of Articles 14 and 21”. (The 4-1 majority judgment rejected the challenge to the constitutionality of Section 302, but said death penalty must be awarded only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”.) The minority view criticised the 35th Report of the Law Commission: “that the circumstance that every human being dreads death cannot lead to the inference that death penalty act as a deterrent”. The world’s “enlightened opinion”, Justice Bhagwati said, “is definitely veering round in favour of abolition of death penalty”.

In Deena @ Deena Dayal Etc. Etc vs Union Of India And Others (September 23, 1983), the Supreme Court adjudicated on the method of execution, and held the method prescribed under the CrPC as valid. The convict “cannot be subjected to barbarity, humiliation, torture or degradation before the execution of (the) sentence… (but) the process of hanging does not involve any of these directly, indirectly or incidentally”, the court said. It did not reopen the question of constitutionality of the death sentence.

In Pt. Parmanand Katara vs Union Of India & Ors (August, 28 1989), the Supreme Court said that allowing the body to remain hanging even after death — the jail manual prescribed it should be kept hanging for half an hour after death — violated the dignity of the person, and was unconstitutional.

In Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (May 13, 2009), the court, while commuting a sentence, observed, “[The] right to life is the most fundamental of all rights. Consequently a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably”.



BY END-2014, 140 countries were abolitionist in law or practice.

AMONG those that retain and use the death penalty are China, Indonesia, the US, Pakistan and Bangladesh.

BETWEEN 2000 and 2012, Indian courts passed 1,677 sentences of death, according to NCRB data. During 2004-12, convictions were recorded in 1,80,439 cases involving murder. In the same period, death sentences were passed in 1,178 murder cases, that is, in 0.65% of cases involving murder convictions.

ONLY one mercy petition was rejected during 1950-82, a period that saw six Presidents. From1982-97, three Presidents rejected 93 mercy petitions and commuted seven sentences. From 1997-2007, two Presidents decided only two pleas. Pranab Mukherjee (2012-17) rejected 31 of the 33 mercy pleas he decided. The Law Commission noted that a convict’s fate depends both on the “ideology and views of the government” and “on the personal views and belief systems of the President”.

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