The case against death penalty

In 2012, India stepped back in time, into the pro-death penalty era for the crime of rape. Before that, academicians, jurists, judges, lawyers and other intellectuals were thinking about the abolition of the death penalty in the country.

That year, the Nirbhaya gangrape case horrified the nation, bringing most people to the common conclusion that the culprits must be hanged till death. Consequently, the then UPA government hastily changed the laws, making the death penalty the maximum punishment for IPC Sections 376A (rape causing death or causing the woman to be in a persistent vegetative state) and 376 E (for repeat offenders).

On January 23, 2013, the report of the Justice Verma committee – formed soon after the horrific incident – was published and strongly articulated that death for rape was not the solution but would rather endanger women in the long run. The government followed up the report by amending the laws and making them more stringent – except that crime against women continued to shoot up.

Today, a similar situation has arisen in the aftermath of the Kathua rape and murder case and the Unnao rape case. A shocked nation is demanding death for the rapists.

Under pressure, the central government promulgated an Ordinance to add the provision of death penalty for the rape of a minor girl under the age of 12 years. There are now 59 sections across 18 central legislations in India that allow for the death penalty as punishment, of which 12 sections are under the Indian Penal Code, 1860.

Such an emergency situation has arisen because of political interference in the functioning of the law and order machinery. I am quite sure that if legislators hadn’t interfered in both incidents, the question of promulgating an Ordinance would never have emerged.

The government stands with the argument that the death penalty will act as a deterrent for such crimes, but the fundamental question is – is it the only solution to curb crime in society?

Firstly, a stable society needs some deterrence laws through which an individual will fear doing something or abstain from doing something which is against the law. Secondly, it is an established fact that the deterrence theory of punishment has not worked, not only in India but in the world; plus there’s the humanitarian ground that everyone has the right to life, even a heinous criminal.

The Justice Verma Committee Report stated that the “death penalty would be a regressive step in the field of sentencing and reformation”. On the question of the deterrence effect of the death penalty, it stated “considerable evidence” that “the deterrent effect of the death penalty on serious crimes is actually a myth”. United Nations Secretary-General António Guterres too said “the death penalty does little to deter crimes or serve victims”. The General Assembly of the United Nations in its resolution (UNGA Resolution 65/206) stated that “there is no conclusive evidence of the deterrent value of the death penalty”.

Delhi’s National Law University put out a report titled “The Death Penalty India Report (2016)” based on the socio-economic profile of prisoners who were awarded death. It interviewed 373 of 385 such prisoners in India. While the report did not seek to make a case for the abolition of the death penalty, it cited the US Supreme Court ruling that it would be unconstitutional to extend the death penalty to non-homicide offences like rape, including rape of a minor.

On the economic status of the prisoners, the report found that “almost three-fourths of the prisoners in our study (74.1 per cent or 274 prisoners) were economically vulnerable. Of the economically vulnerable prisoners, 63.2 per cent were either the primary or sole earners in their families”. On the social status of the prisoners, the report stated that “76 per cent (279) of prisoners sentenced to death in India belonged to the backward classes and religious minorities, with all 12 female prisoners belonging to backward classes and religious minorities. While the purpose is certainly not to suggest any causal connection or direct discrimination, disparate impact of the death penalty on marginalised and vulnerable groups must find a prominent place in the conversation on the death penalty”.

The educational background of the prisoners is also stated in the report – “23 per cent of prisoners sentenced to death had never attended school. A further 9.6 per cent had barely attended school but had not completed even primary school education, while a staggering 61.6 per cent of prisoners sentenced to death had not completed secondary school education. Of the 12 female prisoners, six prisoners had never attended school”.

The report seemed to highlight that the death penalty is mainly for the marginalised sections of society and pointed to the failure of the state in fulfilling its fundamental obligation to establish an egalitarian society.

Justice Bhagwati’s minority opinion stands alone in the jurisprudence on the death penalty in India. This aspect is a great contribution and cannot be ignored. In Bachhan Singh vs State of Punjab, Bhagwati J stated that: “I regard men as an embodiment of divinity and I am therefore morally against death penalty. But my dissent is based not upon any ground of morality or ethics but is founded on constitutional issues, for as I shall presently show death penalty does not serve any social purpose or advance any constitutional value and is totally arbitrary and unreasonable so as to be violative of Articles 14, 19 and 21 of the Constitution.”

Former Chief Justice of Delhi High Court AP Shah last week argued against the Ordinance on the death penalty, saying: “Death penalty diverts attention from problems ailing the criminal justice system such as poor investigation, lack of crime prevention and abuse of rights of victims”. He also made an appeal to MPs “to reject this law as it will cause considerable harm to children. It is more of a political decision than a step to fight the menace of sexual violence against children.”

On April 23, 2018, a Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar of Delhi High Court asked the Centre about the Ordinance: “Did you carry out any study, any scientific assessment that the death penalty is a deterrent to rape?” The Bench further asked: “Have you thought of the consequences to the victim? How many offenders would allow their victims to survive now that rape and murder have the same punishment?” It stated that the government was “not even looking at the root cause” or educating or sensitising people.

While it is impossible to imagine a society without crime, there are various ways to reduce the level of crime. The central government must go through the Justice Verma Committee report in letter as well as spirit, before amending the laws. The state, as well as society, should think beyond the death penalty and there should be nation-wide efforts to make people more sensitive towards the issue.

The state must instead make the investigation mechanism fast and effective, appoint judges and public prosecutors, haul up the police, establish fast-track courts as well as advanced forensic labs for speedy delivery of justice.