By Simran Bhinder:

In 1967, the Law Commission of India had reported: “Having regard, however, to the conditions in India, to the variety of 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 in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.” However, due to the recent support in favour of abolishing this punishment from the Indian legal system and the trend being observed in most of the countries around the world, the Law Commission of India in 2013 decided to review the issue once again.

This issue, however, is not a new one. One of the most controversial and heatedly debated topics during the Constituent Assembly debates was whether or not the death penalty should be retained in the constitution of Independent India?

One of the main voices for abolishing the death penalty was the man who is often referred to as the architect of the Constitution – DR. B. R. Ambedkar. Ambedkar pointed out the inherent violence that is attached to a punishment like the death penalty and stated that “people may not follow non-violence in practice but they certainly adhere to the principle of non-violence as a moral mandate and thus the state ought to observe it as far as it possibly can,” implying that a state must practice non-violence if it wants its citizens to condone violence.

However, Ambedkar’s views and suggestions were ignored by the Assembly and the death penalty was retained as a legal form of punishment in the penal code.

Although the death penalty was retained in the legal system it has not been a common form of punishment. In Mithu vs. State of Punjab (1983) the Supreme Court observed that “in the whole of IPC there is only one section (Section 303) where death is described as the only punishment for murder by person under a sentence for imprisonment for life; and even this lone section has been struck down by the supreme court as it was found violative of the constitutional provisions.”

There are other sections which describe offences for which the death penalty exists as an alternative along with other punishments. Under the Indian Penal Code, crimes that are punishable with a death sentence include treason, abetment of mutiny, perjury resulting in the conviction and death of an innocent person, murder, kidnapping for ransom and dacoity with murder. Following the Nirbhaya case, Parliament changed the law to make a second charge of rape punishable with the death penalty.

The legal policy framers ensured that the death penalty was not awarded in a frivolous manner. Section 354 (3) makes it mandatory for the judges to state the reason for choosing to give this particular punishment when alternatives are available. In Ambaram vs. State of MP, it was clarified that only a special reason, i.e., special facts or circumstances present will warrant the passing of a death sentence. This was also reflected in Dhananjoy Chatterjee vs. State of West Bengal (1994) in which the courts observed that “the measure of punishment in a given case must depend on the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim,” thus, ensuring that the courts look at a number of factors before deciding to award this punishment.

Apart from all these legal provisions stated in the various codes governing criminal law, even the Supreme Court has tried to further limit the number of cases in which the death penalty is given by coming up with the ‘rarest of the rare cases’ doctrine. Cases like Bachan Singh vs. State of Punjab (1980) make it very clear that even though the death penalty stated is an alternative option for punishment, in many cases, the only situation in which it can be awarded is when it fits into the criteria set by the ‘rarest of the rare’ doctrine. The mere fact that the court finds the person guilty of committing a particular crime cannot be a reason to justify the sentencing of capital punishment.

All this was done keeping in mind the gravity and irrevocable nature of this sentence and to ensure that it is given only in cases in which such extreme and grave loss is suffered that it can justify a punishment this harsh.

Apart from all these there is also an option with the person being sentenced to death to file for a petition of mercy. Thus any person who believes that his or her crime wasn’t as grave as to attract the maximum punishment can appeal to the Supreme Court (after the death penalty has been confirmed by the High Court) and if the petition is rejected by the Supreme Court of India, a plea for clemency can be sent to the President as well. Section 363 (4) of the Criminal Procedure Code, protects this right to appeal by making it mandatory for the court to formally inform the accused about his right to appeal against the sentence and the time period within which such an appeal can be made. This ensures that a decision as grave as deciding whether or not the State should take away a person’s life is not decided just be one court but can be reviewed by other authorities as well.

According to government statistics, only 54 persons have been executed since Independence. An average of 132 death sentences were handed down each year from 2001 to 2011 by trial courts across the country, according to a National Crime Records Bureau report. The Supreme Court during the same period, however, confirmed only three to four death sentences each year. These numbers reflect the reluctance of Supreme Court in imposing capital punishment.

Even though the Indian criminal justice system tries to ensure that the death penalty is not awarded unreasonably or without a proper justification, many legal experts claim that mistakes while awarding this sentence are not uncommon. This claim became more popular when in 2012 14 eminent judges (retired) who had served in various high courts and the Supreme Court wrote a letter to the President stating that since 1996 nearly 15 erroneous death sentences had been awarded, out of which two had already been carried out.

Another very common response to the pro-death sentence argument – that it serves as a deterrent against people committing similar crimes – is that the certainty of punishment and not the severity deters crimes in society. This argument was furthered strengthened when in 2012 a study conducted in the United States found that there is no credible evidence that the death penalty has any deterrent effect on crime.

With the recent global trend towards abolishing the capital punishment gaining more and more support each day, with the European Union having made “abolition of death penalty” a prerequisite for membership, and the Amnesty International recently reporting that 140 countries, more than two-thirds of the world, do not use the death penalty any more.

In fact, today India has become one of the few countries in which death sentences continue to be awarded after it expressly refused to sign the moratorium on executions, prepared by the 65th United Nations General Assembly, in favour of abolishing the death penalty.

However, the idea of prohibiting this ‘maximum punishment’ is becoming popular within the country at a very significant pace. And the support for this is coming from all quarters of society, including from the judiciary itself. The recent observation by the Supreme Court, “perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapitative goal,” reflects the conflict within the judicial systems also.