Should India Retain Death Penalty?

Concept Note:

The debate on the death penalty in India has gathered more steam following the 262nd report of the Law Commission that came out in August 2015. It concludes that the death penalty should eventually be abolished in India except in cases of terrorism and waging of war against the state to safeguard national security. In its previous major review in 1967, the commission had concluded that India could not risk the “experiment of the abolition of capital punishment.” This time around “the Commission feels that the time has come for India to move towards abolition of the death penalty”.

The major reasons why capital punishment should be abolished in India according to the Law Commission are: (1) times have changed; (2) it is not a deterrent anymore; (3) sentencing is arbitrary; (4) administration of capital punishment is vulnerable to misapplication; (5) mercy powers have failed to act as the final safeguard against miscarriage of justice; (6) long delays in trials and appeals and final execution is almost torture; and (7) India is in a minority on death penalty as 140 countries have abolished it.

Practically, judges in India can impose the death penalty in the “rarest of rare” of cases, including treason, mutiny, murder, abetment of suicide and kidnapping for ransom. In 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative state; as well as for certain repeat offenders. Following the execution of Mumbai terror attack convict Yakub Memon, the Supreme Court has said capital punishment is not inhuman or barbaric and will not violate the right to life and liberty in heinous crimes. However, in Shankar Khade’s case, the apex court in 2013 observed that there was no fair process of ‘conferring’ death penalty, and the application of the ‘rarest of the rare’ principle was exceptionally friable.

An empirical study reveals that out of around 385 existing prisoners sentenced to death for terror offences 93.5 percent belong to Dalit and religious minority communities. Even in other cases, there is a predominance of people from lower castes and religious minority communities. They also have a very low level of education – 24 percent of them have never stepped into school and belong to the most marginalized sections of society. Moreover, the results of death penalty cases from 2000 to 2015 are equally startling: for every 100 death sentences that trial courts give, only 4.5 are confirmed by the higher courts. About 30 percent are acquitted and the rest are commuted. This basically highlights the overuse of the award of the death penalty.

To take this important debate further, the Liberal Studies journal invited opinions of three eminent policy analysts, scholars, and practitioners – A. Prasad, Jyotsna Yagnik, Binod C. Agarwal – to give their opinion on the constitutionality, human rights, law and order, and socio-psychological implications of death penalty as a form of punishment in the Indian context.