THE European Union celebrates 10 October as the World and European Day against Death Penalty. This year, it organized a discussion on the “Abrogation of Death Penalty and the Evolution of Approaches and Understanding in India”. Within this country, however, the campaign against death penalty has never been sufficiently robust. The concern is secondary, one that has been overshadowed by frequent violation of human rights.

India is one of the countries that have not abolished capital punishment. Its constitutional validity was last considered by the Supreme Court in the Bacchan Singh case (1982). The majority judgment held that it was constitutional; the court did not accept the submission that capital punishment violates Article 19 of the Constitution because the freedom that it guarantees cannot be enjoyed without the basic right to live. It also damages the dignity of the individual that is emphasized in the Preamble to the Constitution. The court advised the judges not to be “bloodthirsty” and enunciated the principle that death penalty should be awarded only in the “rarest of rare cases” of exceptional depravity and brutality.

Under the Indian Penal Code, a wide range of offences can attract the death penalty. The sentence is applicable for murder, gang robbery coupled with murder, abetment to suicide, for waging a war against the government, and for provoking a mutiny by members of the armed forces. The Supreme Court has now ruled that the death penalty should be extended to those found guilty of honour killings. Correct data on executions are not easily available. The number of people hanged since 1947 is a matter of dispute. Official statements claim that only 52 people have been executed since independence but People’s Union for Civil Liberties (PUCL) ~ on the basis of Appendix 34 of the 1967 Law Commission’s Report ~ claims that 1422 executions took place in 16 states from 1953 to 1963. The government has not responded to the figure advanced by the PUCL. However, there has been a de facto moratorium on executions since 2004.

Public opinion in India is by and large in favour of death penalty which, it is widely felt, deters crime. However, there is no empirical evidence to substantiate this claim. More than the severity of punishment, it is the certainty of detection and punishment that acts as a deterrent. Prolonged imprisonment can serve as a deterrent. In the USA, there is broad agreement among both criminologists and law- enforcement officers that capital punishment can effectively curb homicide or other forms of horrendous crimes.

Like all other forms of punishment, the error of judgment cannot be ruled out in the case of death penalty. Judicial error is always possible. In the USA, several studies conducted over the last two decades have documented the problem of erroneous convictions in homicide cases. Since 1970, as many as 80 people have been released from death row as they were found innocent (Death Penalty Information Centre, 1999). The execution of an innocent person is an unpardonable crime committed against society.

Studies across the world have revealed that the overwhelming number of those executed is poor. In his dissenting judgment in the case of Bacchan Singh (1982), Justice Bhagawati observed: “The death sentence has a certain class complexion or class bias in as much as it is largely the poor and downtrodden who have become the victims of extreme penalty. One would hardly find a rich or affluent person going to the gallows”. In 1999, Amnesty International concluded that the death penalty in the United States is applied “disproportionately on the basis of race, ethnicity and social strata”.

In the cases of Sandosh Kumar Bariyar (2009) and Alok Kumar Dutta (2007), the Supreme Court admitted to “failure on its part to evolve a uniform sentencing policy in capital punishment cases”. It concluded that a survey of the application of rarest of rare doctrine in various courts will reveal that courts have given their own meaning to the doctrine. “Thus there has been subjectivity and inconsistency in applying the doctrine”. Retribution is the most important argument in support of death penalty. It has been argued that those who commit the most barbarous and heinous crime should be executed simply on the ground that they deserve it. Life imprisonment even without parole is insufficient punishment for those who have committed pre-meditated murders. Families of homicide victims need retributive satisfaction. However, an empirical study conducted by the National Institute of Criminology and Forensic Science (NICFS) revealed that the families of the victims want financial aid and other forms of assistance and are not particularly keen on retribution.

Internationally, there is a campaign for the abolition of the death penalty. As many as 96 countries have done away with it and 34 countries are in favour of abolition and are observing a moratorium on execution. In 1998, five countries accounted for over 80 per cent of executions in the world ~ China, the Democratic Republic of Congo, Iran, Iraq and the United States. China today is regarded as the world’s leading executioner. Amnesty International records 3500 executions in 1996. At least 68 criminal offences, many of them non-criminal in nature, are punishable by death. Before the advent of democracy, South Africa was one of the world’s greatest executioners. But in 1995, its constitutional court abolished death penalty as “cruel, inhuman and degrading”.

On 5 December 1988, the UN General Assembly adopted the “International Covenant on Civil and Political Rights, Second Optional Protocol aiming at Abolition of Death Penalty”. Article 1 of the protocol provides that “no one under the jurisdiction of a state party to the optional protocol shall be executed and each state party shall take necessary measures to abolish death penalty within its jurisdiction”. In 2007, India voted against the UN resolution calling for a moratorium on death penalty.

The question of death penalty is in reality a fundamental human rights issue. The proper recognition of human beings as equal and appropriate runs counter to the imposition of death penalty. Arthur Koestler has rightly said that “the gallows is not a machine of death but a symbol of terror, cruelty and irreverence for life…….it stands for everything that mankind must resist”.

The writer is Senior Fellow, Institute of Social Sciences, former Director General,
National Human Rights Commission, and former Director, National Police Academy
– 17/11/2012 THE STATESMAN