An Eye for an Eye?
A nation that staunchly believes in the concept of nonviolence and preaches peace, still lawfully practices the most brutal practice of the human world, that is the death penalty. India has always propagated the ideas and beliefs of Mahatma Gandhi but it doesn’t put stock in his views on capital punishment. Gandhi’s philosophy can be encapsulated as such, “an eye for an eye only ends up making the whole world blind.” The same view was also asserted by Dr B R Ambedkar, when he emphasised on the removal of death penalty in India.[i] However, India still lawfully engages in the practice of death penalty. The latest execution in India was of the four men convicted in the Nirbhaya gangrape case[ii]. Prior to this, Yakub Memon was executed in 2015 in relation to the 1993 Mumbai Bombings.[iii]
Origin of Death Penalty
The practice of death penalty or capital punishment is ancient and appeared first in the Babylonian Code of Hammurabi, in 18th century BC. Other ancient codes such as the Hittite Code, the Draconian Code of Athens, the Twelve Tables of Roman Law also punished several crimes by death.[iv] Capital punishment has also been sanctioned by major religions, such as Christianity, Judaism[v] and Hinduism[vi], for certain grave crimes. The methods of execution followed previously were extremely brutal such as decapitation by a guillotine, burning at the stake, beheading etc. However, reforms in penal law began, all over the world, around the late 18th century and eventually, the number of crimes punishable with death reduced.[vii] The abolitionist movement began with Cesare Baccaria’s work ‘On Crime and Punishments’. Initially, the movement focussed on restricting its scope as well as to restore dignity of human life, by transforming executions.[viii] Moreover, with the worldwide development of human rights in recent years , it has gained momentum. Today, 106 countries have abolished the death penalty for all crimes.[ix]
Death Penalty in India
Over 20 statutes penalise crimes with death in India, such as waging a war against the Government of India[x], murder[xi], rape[xii] or gang-rape[xiii] on a woman under 12 years of age, terrorism[xiv], hijacking[xv] etc. The constitutionality of the death penalty has been challenged and upheld by the Supreme Court of India, a number of times.[xvi] The Law Commission of India in its 35th Report recommended the retention of the death penalty.
Death penalty or execution is done through two methods in India, either by hanging or by shooting the person. The concept of hanging to death is codified in Section 354(5) of the Code of Criminal Procedure, 1973, which states that, “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”[xvii]. The death sentence in India is given as per this Section and the jail manuals of the state concerned.
For example, as per the Delhi Jail Manual, the convicted person who has been sentenced to death should be isolated and kept separate from the other . The same rule also asserts the practice of thorough checking of the convict in the presence of the Assistant Superintendent.[xviii] Further, the jail rules of Rajasthan[xix], state that female prisoners who are sentenced to death must be kept in a female ward with female wardens. Further, as per the jail rules of Punjab, a manilla rope one inch in diameter shall be used for executions.[xx] Therefore, different jail rules are applicable to persons punished with the death sentence in India. Execution done by shooting the person is prescribed under Section 163 of the Air Force Act, 1950. However, even after having such stringent laws for death penalty, India believes that such punishment shall only be awarded in ‘rarest of the rare’ cases[xxi]. This can ensure that human rights are not violated in the name of law. However, the world doesn’t follow this principle religiously. For instance, China still tops the ranking in death penalty and thus frequently uses this brutal practice of execution[xxii]. Further, recently a woman in Afghanistan was publicly lashed for going out without her husband.[xxiii]Moreover, Iran did report a decline in its number of executions, but even then, 253 executions (as per Amnesty International Report 2018), cannot be termed as rare cases. However, these numbers of executions are then defended by the idea of justice. Thus, the dichotomy of justice and human rights still remains a debatable issue.
Courts in India hardly follow the rule of ‘rarest of the rare’. As per prison statistics,[xxiv] 186 persons were awarded death penalty in 2018. Further, the instances happening in the country indicate that the country is still not in the mood to abolish the death penalty. This can be asserted by the Death Penalty Report which states that 1,486 death sentences were imposed by trial courts in India during the period of 2000-2015.[xxv] This punishment is supported by the government as well. For instance, just after the execution of the Delhi gang rape convicts, the PM tweeted in its support.[xxvi] Further, in an interview Chief Justice SA Bobde stated that he upholds the concept of death penalty as it is in the statue book.[xxvii]
In the General Assembly draft resolution on Torture-Free Trade, India remained absent because it believed that the relation of capital punishment with torture is unjustified.[xxviii] However, such arguments are not welcomed by the UN, as it recently urged nations to stop the practice of death penalty, just after the execution of the Nirbhaya convicts.[xxix] India is witnessing a rise in death sentencing in recent times. As per a report published by National Law University Delhi,[xxx] there are 378 prisoners on death row as of 31st December 2019.
Sustainability of the Death Penalty Today
However, the world’s scenario is slightly different. As per the Amnesty International Report of 2018,[xxxi] there has been a 31% worldwide decline in executions and death sentences. The report stated that the organisation witnessed no execution in many countries in 2018 where there were executions before, including Jordan, Kuwait, Malaysia, Palestine, United Arab Emirates, Bahrain, and Bangladesh.
Today, the international legal framework favours the abolition of the death penalty. With the development of the concept of human rights, the abolitionist movement has grown stronger. It is based primarily on the “right to life” guaranteed to all human beings, in numerous international instruments such as the Universal Declaration of Human Rights[xxxii] and the International Covenant on Civil and Political Rights[xxxiii] (“ICCPR”). The Second Optional Protocol of the ICCPR mandates that state parties shall not execute anyone within their jurisdiction.[xxxiv] This Protocol was passed by the United Nations General Assembly in 1989 itself. Even today, the UN Secretary General[xxxv] and the Office of the High Commissioner of Human Rights[xxxvi] push for universal abolition of the death penalty.
The key arguments against the death penalty globally are: violation of the right to life, deconstruction of the myth of ‘deterrent effect’; and lastly, the discriminatory application of the penalty. There have been several studies which have held that the death penalty does not have a deterrent effect.[xxxvii] According to the Death Penalty India Report, 74.1% of those sentenced to death in India are economically vulnerable. It has been seen in this Report that those belonging to the vulnerable sections of society are more likely to be sentenced death.
Despite these considerations, India has not abolished the death penalty. The issue is very debatable in our country. The Law Commission of India has in its 262nd Report recommended the abolition of the death penalty for all offences except ones related to terrorism. The Commission has observed in this Report that the death penalty does not serve the ‘penological goal of deterrence’. The Commission also observed that miscarriage of justice in these cases is highly probable, especially with respect to the poor and marginalised. MP Kanimozhi Karunanidhi has introduced a private member bill, the Death Penalty (Abolition) Bill,[xxxviii] which seeks to abolish the practice of capital punishment and further states that this practice leads to miscarriage of justice. It also mentions that death penalty lacks a deterrent effect and thus, only reflects the idea of revenge.[xxxix]
On the other hand, many believe that such punishments can set an example in the society and thus will act as a deterrent to further crimes. For instance, three members of the Law Commission of India examining death penalty, dissented with the findings and conclusions of the Report. Further, most people in the country celebrated the recent execution of the convicts of the Nirbhaya case[xl] and the encounter of the accused in the rape case of Priyanka Reddy.[xli] Moreover, there is common belief that such punishments cannot be termed as brutal or against human rights because they are used for people who have committed the cruelest crimes and thus, they deserve such punishment. For instance, as per a research, only 20% of the Indian population stands against the concept of death penalty.[xlii] It proves that the country is biased towards the idea of capital punishment and thus rejects the slight opposition which aims at stopping this practice.
There is no clear answer regarding the death penalty in India. The time for India to move towards the abolition of the death penalty is upon us, but there are a numerous factors which will influence whether it is banned or not, namely the capacity of jails in India to handle extended incarceration, the plight of prisoners on death row, the discriminatory nature of the death penalty and most importantly, society’s readiness to accept this change. In a society where every fifteen minutes, a rape takes place[xliii], acceptance of abolition of the death penalty will be tough. A society which showers flowers on police officers after an encounter of four rape accused shall pose severe resistance to abolition of the death penalty. It can hence be concluded that while other factors may be taken care of by way of laws and procedures, the abolition of the death penalty cannot take place unless the population of India accepts this change.
[i] Dr. Babasaheb Ambedkar Writings and Speeches, Vol. 13, V. Moon ed., Govt. of Maharashtra, 1994, pp. 639-640.
[ii] Jeffrey Gettleman, Hari Kumar & Shalini Venugopal, ‘Men Convicted in Delhi Bus Rape are hanged in India’ (2020) The New York Times, available at https://www.nytimes.com/2020/03/19/world/asia/india-bus-rape-convicts-hanged.html.
[iii] Jason Burke, ‘Yakub Memon: India carries out execution over 1993 bomb attacks’, (2015) The Guardian, available at https://www.theguardian.com/world/2015/jul/30/yakub-memon-india-carries-out-only-execution-over-1993-bomb-attacks (last accessed 10th April, 2020).
[iv] ‘Early History of the Death Penalty’, Death Penalty Information Centre, available at https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty (last accessed 9 April, 2020).
[v] Roger Hood, ‘Capital Punishment’ (2020) Encyclopaedia Brittanica, available at https://www.britannica.com/topic/capital-punishment (last accessed 9 April, 2020).
[vi] “Punishment in Ancient Hindu Law”, The Journal of Criminal Law, Criminology and Police Science, Vol. 47, No. 1, 1956, p. 81.
[viii] Randall McGowen, The Death Penalty, The Oxford Handbook of the History of Crime and Criminal Justice, 2016.
[ix] ‘Abolitionist and Retentionist Countries’, Death Penalty Information Centre, available at https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries (last accessed 10 April, 2020).
[x] The Indian Penal Code, 1860, s. 121.
[xi] The Indian Penal Code, 1860, s. 302.
[xii] The Indian Penal Code, 1860, s. 367AB.
[xiii] The Indian Penal Code, 1860, s. 367DB.
[xiv] The Unlawful Activities (Prevention) Act, 1967, s. 16(1)(a).
[xv] The Anti Hijacking Act, 2016, s. 14.
[xvi] Jagmohan Singh v. State of UP, 1973 (1) SCC 20; Bachan Singh v. State of Punjab, 1980 (2) SCC 684.
[xvii] The Code of Criminal Procedure, 1973, s. 354(5).
[xviii] Navneet Kumar Bharti and Rajiv Raheja, Delhi Jail Manual, Capital Law House, Delhi, 2014, s.59
[xix] The Rajasthan Prisons Rules, 1951, s.1(18).
[xx] Punjab Jail Manual, 1996, Para 779.
[xxi] Bachan Singh v. State of Punjab, 1980 AIR 1980 SC 898.
[xxii] Amnesty International Global Report on ‘Death Sentences and Executions 2018 (2019)’.
[xxiii] Haroon Janjua, ‘I lost consciousness’: woman whipped by the Taliban over burqa without veil’ , (2019) The Guardian, available at https://www.theguardian.com/global-development/2019/apr/18/woman-whipped-by-the-taliban-over-burqa-without-veil-afghanistan (last accessed 15th April 2020).
[xxiv] National Crime Records Bureau, Report on ‘Prison Statistics India 2018 (2019)’.
[xxv] Ankita Sarkar, ‘Abandoning in Limine Slp Dismissals in Death Sentence Cases’. (2019) project39a, available at https://www.project39a.com/blog/2019/2/3/abandoning-in-limine-slp-dismissals-in-death-sentence-cases-a-half-full-half-empty-solution-in-babasaheb-kamble (last accessed 14th April 2020).
[xxvi] __, ‘Nirbhaya case: Four Indian men executed for 2012 Delhi bus rape and murder’, (2020) BBC, available at https://www.bbc.com/news/world-asia-india-51969961 (last accessed 14th April 2020).
[xxvii]A Vaidyanathan, ‘Took Oath to Uphold Law, Law Prescribes Death Penalty”: Chief Justice-Designate SA Bobde’, 2019 NDTV, available at https://www.ndtv.com/india-news/justice-sa-bobde-interview-took-oath-to-uphold-law-law-prescribes-death-penalty-says-next-top-judge-2124801(last accessed accessed 10 April, 2020).
[xxviii] __, ‘General Assembly Adopts Texts on Torture-Free Trade, Assisting Terrorism Victims, Anniversary of Cairo Population Conference’, (2019) United Nations, available at https://www.un.org/press/en/2019/ga12160.doc.htm (last accessed 10 April, 2020).
[xxix] Press Trust of India, ‘UN calls for scrapping capital punishment after Nirbhaya convicts’ hanging’, (2020) Business Standard, available at https://www.business-standard.com/article/current-affairs/halt-use-of-capital-punishment-un-after-nirbhaya-convicts-execution-120032100281_1.html (last accessed accessed 10 April, 2020).
[xxx] The Death Penalty in India: Annual Statistics published by Project 39A A at National Law University, Delhi, https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/5e25a02b5dfafe47d399d2ad/1579524149035/Project+39A+Annual-Statistics-04-PG-Web.pdf.
[xxxi] Amnesty International Global Report on ‘Death Sentences and Executions 2018 (2019)’.
[xxxii] The Universal Declaration of Human Rights, 1948, art. 3.
[xxxiii] The International Covenant on Civil and Political Rights, 1976, art. 6(1).
[xxxiv] The Second Optional Protocol to the International Covenant on Civil and Political Rights, 1989, art. 1(1).
[xxxvi] ‘Death Penalty’, Office of the High Commissioner for Human Rights, available at https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx (last accessed 10 April, 2020).
[xxxvii] ‘A Clear Scientific Consensus that the Death Penalty does not deter’, Amnesty International, available at https://www.amnestyusa.org/a-clear-scientific-consensus-that-the-death-penalty-does-not-deter/ (last accessed 10 April, 2020).
[xxxviii] The Death Penalty (Abolition) Bill, 2019.
[xxxix] The Death Penalty (Abolition) Bill, 2019, Statement of Objects and Reasons.
[xl] Geeta Pandey, ‘Delhi Nirbhaya rape death penalty: What do hangings mean for India’s women?’, (2020) BBC, available at https://www.bbc.com/news/world-asia-india-50812776 (last accessed 10th April, 2020).
[xli] Geeta Pandey, ‘Hyderabad case: Why Indians are celebrating the killings’, (2019) BBC, available at https://www.bbc.com/news/world-asia-india-50683615 (last accessed 10th April, 2020).
[xlii] Sanjeev Sahni and Hrideja Saurin Shah, “Abolishing Death Penalty in India: Public Opinion, Ethics and Right to Life”, Linköping University Electronic Press, Vol. 7, No. 22, 2016, 74-75.
[xliii] Sudarshan Varadhan, ‘One woman reports a rape every 15 minutes in India’, (2020) Reuters, available at https://www.reuters.com/article/us-india-crime-women/one-woman-reports-a-rape-every-15-minutes-in-india-idUSKBN1Z821W (last accessed 14th April 2020).
By Stuti Srivastava, Junior Editor and Chahat Gautam, Research Assistant, RSRR.