Of the 14 states and Union Territories that have replied to the Home Ministry on a proposal to abolish the death penalty, only two, Karnataka and Tripura, want the practice to be done away with.
In its report in 2015, the Law Commission of India, then headed by Justice A P Shah, had proposed the abolition of capital punishment for non-terrorism cases, following which the ministry had sought comments from state governments. Among the states and UTs that vetoed the abolition of capital punishment were Gujarat, Madhya Pradesh, Chhattisgarh, Rajasthan, Bihar, Jharkhand, Tamil Nadu and Delhi.
A senior government official told The Indian Express, “We have been writing to states but only 14 have replied so far. Some of the big states such as Uttar Pradesh and Maharashtra are yet to give comments. And Tripura, after the change in regime, may change its stand.”
The 12 states, while arguing against the abolition of capital punishment, took the line that the penalty serves to act as a deterrent in cases of heinous crimes such as murder and rape.
According to the Law Commission Report, India is among a handful of countries such as China, Iran, Iraq and Saudi Arabia that still carry out executions. At the end of 2014, 98 countries had abolished the death penalty, seven had abolished it for “ordinary crimes”, and 35 were abolitionists in practice, making 140 countries abolitionists in law or practice. This list of 140 includes three countries — Suriname, Madagascar and Fiji — which formally abolished the death penalty in 2015.
Among the recent executions in India were that of 26/11 terrorist Ajmal Kasab in November 2012, 2001 Parliament attack convict Afzal Guru in February 2013, and 1993 Bombay bombings convict Yakub Memon in July 2015. In 2013, the Supreme Court had asked the Law Commission to examine “whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal”.
In August 2015, the Commission, with Justice Shah as chairman and Justices S N Kapoor, Usha Mehra and Prof Mool Chand Sharma as members, came out with the recommendation “that the death penalty be abolished for all crimes other than terrorism related offences and waging war”.
“… Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security. However, given the concerns raised by the law makers, 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,” the report stated.