Facing criticism over the handling of the rape and murder of a junior doctor at Kolkata’s R G Kar Medical College and Hospital, the Mamata Banerjee government on Tuesday passed a Bill that seeks capital punishment for rape convicts if their actions result in the victim's death or leave them in a vegetative state. It also stipulates a life sentence without parole for other perpetrators. Capital punishment has been debated in Parliament in the past, with TMC MPs having varied opinions on the subject. Last year, Derek O’ Brien and Kakoli Ghosh Dastidar took a nuanced stand on death penalty in their dissent notes on the Bharatiya Nyay Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Acts, which replaced The Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act respectively. The two MPs were part of a Parliamentary Standing Committee on Home Affairs that was looking into the new criminal codes. In his dissent note, O’Brien pointed out that the Law Commission of India had in its report in 2015 recommended the abolition of the death penalty for all crimes, with the exception of cases related to terrorism and acts of war. “Abolition of the death penalty has not been considered in this report (of the Standing Committee). Such abolition carries several merits that resonate with principles of justice, human rights, and the advancement of society. Foremost, it eliminates the risk of executing innocent individuals, as errors in the criminal justice system can have irreversible consequences. Abolition also upholds the fundamental Right to Life, recognizing that every individual, regardless of their actions, possesses inherent dignity. Moreover, it aligns with the evolving global consensus that values restorative justice over retribution, focusing on rehabilitation and the potential for redemption,” O’Brien had said. Quoting a study by Project 39A — a criminal laws advocacy group associated with the National Law University of Delhi — he argued that 74.1% of individuals on death row in India come from economically disadvantaged backgrounds, as determined by their occupation and land ownership status. He added that “this highlights how the death penalty disproportionately affects the marginalised and disadvantaged in society”. The TMC Rajya Sabha MP went on to add: “Death penalty is more than just a form of punishment… The high prevalence of socioeconomic vulnerability and limited education among death row prisoners raises concerns about the potential for wrongful convictions. It emphasises the importance of ensuring a fair and just legal system to prevent innocent individuals from facing the ultimate punishment.” In her note, Dastidar too argued the same. She said that the project 39A data underscored “the urgent need for re-evaluating the death penalty in the country”, adding: “Such re-evaluation is a means to rectify social injustices, prevent potential wrongful convictions, and promote principles of justice and human rights.” “The disparities between trial courts and the Supreme Court, as well as the increasing scepticism surrounding death row trials, highlight the need for institutional reform in the criminal justice system. In sum, broad-based social discussions are warranted on the subject,” Dastidar had written. Other TMC MPs have expressed different opinions. In December 2019, participating in a discussion in the Lok Sabha on “recent incidents of gangrape and brutal killings of girls” after the rape and murder of a veterinarian in Hyderabad, TMC MP Sougata Roy urged “the Central Government to immediately bring forward a law to make rape an offence punishable only by death sentence, which is the only fit punishment for such a heinous and dastardly crime”. Back in 2013, TMC MP Kalyan Banerjee too had taken a similar stand. After then Congress government in Delhi led by Sheila Dikshit came under heavy fire over the brutal assault, gangrape and murder of a paramedical student inside a moving bus, the UPA-II government came out with a new, stringent law providing for natural life term or even death for repeat offenders of rape. Apart from providing for enhanced punishment for rape, including death sentence for offenders for inflicting any injury which causes death of the victim or leaves them in a persistent vegetative state, the law made stalking and voyeurism criminal offences. “There cannot be any excuse for a rapist in this country. If a rapist is there, he should be properly punished. When it is required, he should be hanged. In the case of a first-time offence, it should be up to 14 years. A second-time offence, it may be life imprisonment till natural death or death penalty. In the case of gangrape, the punishment should be either life imprisonment or death,” Banerjee had said while welcoming the Bill. The Bill was passed unanimously. However, many in the Congress too were not in favour of the death penalty at the time, arguing that it is not a deterrent to crime.
