The Death Penalty India Report (DPIR) prepared by the National Law University, Delhi, provides compelling evidence for the abolition of capital punishment in the country. Though the report skirts the moral questions, the comprehensive data reveals major structural anomalies in the legal system, which could be causing the miscarriage of justice. Nearly two-thirds of the persons on death row — there were 385 of them as on January 2015 — belonged to the backward classes, religious minorities, Dalits and Adivasis. Two-thirds of the convicts facing death belonged to the economically vulnerable sections and over 80 per cent of them had not completed school. A large majority of the prisoners had undergone custodial torture and most of them claimed they had confessed to the crime in police custody. Less than half could understand legal proceedings and nearly 70 per cent of them said they hardly had any interaction with their lawyers when their cases were in the higher courts.
Clearly, class, caste and education levels influence legal outcomes and these categories overlap in the Indian context. The findings of the DPIR confirm that the criminal justice system is disproportionately harsh on the poorer, less educated and socially backward sections. That less than five per cent of the death sentences given by lower courts were confirmed by the Supreme Court stokes the suspicion that the lower judiciary is not sufficiently diligent in following the principle of pronouncing death only in the rarest of the rare cases. Read with this, the data that only eight per cent of the individuals on death row had a prior criminal conviction against them and that 25 per cent of the convicts were juveniles or very young, underlines the concern that judges seem to pronounce the death penalty far too often because they are unduly influenced by public opinion. At the very least, a moratorium on capital punishment is called for until the justice system is overhauled.
Once the death penalty is given, there is no scope for remedial action if flaws in the investigative or judicial process are revealed or fresh evidence is produced after the execution of the punishment. The finality of capital punishment is one reason — besides the moral argument that it amounts to revenge and retribution — why at least 120 countries have done away with it. Moreover, there is insufficient evidence that supports the efficacy of the death penalty in preventing heinous crime. Jurisprudence the world over is moving towards a more humanistic view of justice that focuses on reformation. In India, individual MPs have introduced private members bills seeking an end to capital punishment. Last August, the Law Commission of India proposed the abolition of the death penalty in a phased manner and, as a first step, recommended that it be given only in terrorism-related offences. It is a suggestion that needs to be discussed seriously.