Almost half a century after it said the time was not right to abolish death penalty, the Law Commission of India has embarked on an exercise to re-evaluate the contentious issue. The Law Commission has issued a public consultation paper on capital punishment with a detailed questionnaire, formally inviting the citizens to express their views. This is the second time since independence that the Commission is studying capital punishment.
The Supreme Court has commuted the death sentence of 19 persons since January, 2014. The apex court is skeptical about the application of capital punishment and has, thereby, directed the Commission to study whether death penalty needs to be completely abolished or retained in certain cases.
Interestingly, the Bombay HC is hearing a last-ditch attempt by two Kolhapur women to save them from the noose after their mercy pleas were rejected by the President – they will be the first women to be hanged in independent India.
Besides inviting the views of the public, the Commission said it was also planning to collect data related to death penalty from various trial courts, high courts and the apex court. It will also engage law schools to conduct research on the issue. “People have begun to speculate about the end goal of keeping a penalty such as death sentence on the statute book“ said the Commission, adding, “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice”.
For almost eight years (2004-12), no executions were carried out till the moratorium was broken with the hangings of 26/11 terrorist,Ajmal Kasab and Parliament attack accused, Afzal Guru. Over 140 countries have banned capital punishment, and over 20 others who retained it, have not executed capital sentences in past 10 years. According to the government, only 54 persons have been executed in India since Independence.
The National Crime Records Bureau’s report reveals that between 2001 and 2011, averages of 132 death sentences were handed down each year by trial courts across the country. The Supreme Court, however, confirmed only 3-4 death sentences each year.
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 Criminal Procedure Code requires special reasons to be given for awarding capital punishment and in 1980, the apex court had set the “rarest of rare” criteria in such cases.
According to law experts, each legal challenge to death penalty has failed, with the SC quoting the 1967 Law Commission Report which said: “Having regard 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.” Advocate Yug Chaudhry, representing the two Kolhapur women before the High Court, said that the Law Commission’s report commands great respect both in Parliament and in courts. “Convicts are being executed in our names, and if one is opposed to this there will be few more opportune moments to do so than the commission’s public consultation,” he said.
At this moment in time, it becomes imperative to conduct a study to assess the fitness of Indian system of death penalty against the Constitutional standards, and in pursuit of the same, the Commission has released its consultation paper to help the public elicit their opinions on the pertinent matter.
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