PUCL, September 2003

Abolishing the death penalty

By Rajindar Sachar
Thursday, Sep 04, 2003


The opposition to the abolition of death penalty stems from the myth that it will lead to an increase in the number of murders. The facts are otherwise.

THE RECENT announcement by the Government that it was not in favour of abolishing the death penalty has again highlighted the question raised by many human rights activists: is it consistent with human dignity?

The death penalty was codified as part of the Indian Penal Code in 1861. It was not until 1931 that this was seriously challenged when a member of the Bihar Assembly unsuccessfully sought to introduce a bill seeking its abolition. Support for the death penalty remained strong. In 1946, on the eve of Independence, the then Union Home Minister stated that the Government did not think it wise to abolish capital punishment. Ten years later, when the Government asked the States for their opinion, most of them expressed support for the death penalty. In its 35th report, produced in 1967, the Law Commission took the view that capital punishment acted as a deterrent to crime. While it conceded that statistics did not prove these so-called deterrent effects, it also said that figures did not disprove them either.

There was, however, some unease over the death penalty. One consequence was a change in the law in 1955, which said courts no longer had to explain why they did not award a sentence of death in a case. In 1973, it was provided that while handing down a death sentence, special reasons should be given.

The Supreme Court traditionally has not questioned the death sentence per se. In the Jagmohan Singh case (1973), it agreed with the Law Commission that capital punishment should be retained.

But subsequent cases such as those of Ediga Anamma (1974) and Rajendra Prasad (1979) saw dissenting voices being raised in the apex court. These led to a hearing of the Bachan Singh (1980) case by a Constitutional Bench. The Bench concluded by a four to one vote that the death penalty did not violate Article 14 or Article 21 of the Constitution. It warned judges not to be bloodthirsty and ruled that the death penalty should not be imposed, save in the "rarest of rare cases," when the alternative remedy is unquestionably foreclosed. But some liberal judges tried to develop the alternative by holding that the convict could invoke Article 21 in the event of the death sentence not being carried out even after two years and demand that it be quashed.

However, in the Trivenben (1989) case, the Supreme Court unanimously upheld the death penalty as constitutional. It held that the delay could only be counted from the day the Supreme Court's judgment was pronounced — in other words, when the judicial process came to an end. The Court added a caveat that the time consumed by repeated petitions at the instance of the convicted person should not be counted or considered a delay.

But the Supreme Court in April 1991 reduced the death sentence that it had confirmed in the 1988 Daya Singh case — the assassin of the former Punjab Chief Minister, Pratap Singh Kairon — to life imprisonment because of the delay factor. Strangely, this was done without any examination of the causes of the delay, apparently in defiance of the 1989 decision.

A different reaction was visible in the Dhanunjoy case (1994). The trial involved the rape and murder of an 18-year-old girl by a security guard. The Supreme Court, while confirming the death penalty, declared that the courts must reflect public abhorrence of crime, and that when they award sentences they must not only keep the rights of the accused in mind, but also the rights of the victims and of society at large.

This cacophony of differing judicial views is bound to continue so long as the death penalty remains in the statute book. Each judge, it seems, reaches for his own interpretation of the retributive or reformative aspect of criminal punishment. So we have confusing signals on the death penalty. Ironically, after the "rarest of rare" doctrine was propounded in 1980, the Supreme Court confirmed the death penalty in 40 per cent of the cases during 1980-90, whereas it was 37.7 per cent from 1970 to 1980. For the High Court the figures confirming death sentence rose from 59 per cent in 1970-80 to 65 per cent during 1980-90.

The vociferous opposition to the abolition of death penalty stems from the myth that it will lead to an increase in the number of murders. The facts are otherwise. In the State of Travancore, there were 962 murders between 1945 and 1950 when the death penalty was not in force; but in the five years from 1950 when it was re-imposed, there were 967 murders.

The death penalty was abolished in 1965 in the U.K. Member-states of the European Union cannot have the death penalty. In Canada, after the abolition of the death penalty in 1976, the homicide rate declined. In 2000, there were 542 homicides in Canada — 16 fewer than in 1998 and 159 fewer than in 1975 (one year prior to the abolition of capital punishment). In 1997, the Attorney-General of Massachusetts said: "there is not a shred of credible evidence that the death penalty lowers the murder rate. In fact, without the death penalty the murder rate in Massachusetts is about half the national average."

A survey released in September 2000 by The New York Times found that during the last 20 years, the homicide rate in States with the death penalty had been 48 to 101 per cent higher than in those that did not allow capital punishment. A survey conducted by the United Nations in 1988 concluded that research had failed to provide any evidence that executions had a greater deterrent effect than life imprisonment.

To point to the danger of irreversibility and of innocents being executed is not a panic reaction. In the U.S., 500 people have been executed since the Supreme Court reinstated the death penalty in 1976. Over the same period, 75 condemned inmates were released after evidence showed that they had been wrongfully convicted. That is about one exoneration for every seven executions.

Amnesty International, a strong opponent of the death penalty worldwide, cites the Baldus report prepared in the U.S. to argue that capital punishment is socially oppressive. It found that if the homicide victims were white, the killers were four times more likely to get the death sentence than if those murdered were black.. It cannot be disputed that the outcome of any trial depends to a large extent on the quality of legal advice that the accused receives. This loads the scales in favour of the rich. The arbitrariness of the sentencing mechanism in India persuades one to strongly argue against retaining the death penalty.

The South African Constitutional Court unanimously ruled in 1995 that the death penalty for murder violated the country's Constitution. More than 118 countries have abolished the death penalty either in law or practice. The second optional protocol to the International Civil Covenant, which came into force in 1991, mandates the abolition of the death penalty. India has unfortunately not even signed it, thus placing it in the doubtful company of the U.S.

To suggest that the death sentence be abolished so soon after the horrible bomb blasts in Mumbai might sound unpatriotic. But let us remember that terrorists and suicidal maniacs responsible for the blasts and other such acts do not bother about the extremity of punishment. They are already beyond the pale of humanity and have to be fought using innovative methods of counter-terrorism.

The rationale for the abolition of death penalty is qualitatively different and it was wisely expressed by President Eduardo Frei of Chile while commuting the death sentence in 1996 "I cannot believe that to defend life and punish the person that kills, the state should in its turn kill. The death penalty is as inhuman as the crime which motivates it."

(The writer is a former Chief Justice of the Delhi High Court.)


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