Jurisprudence of death sentence in India

There presents an opportunity in the life of every nation and civilized society to collectively ponder upon its long-held beliefs/practices and archaic laws that govern its people. One such law and practice in our country is the affirmation of death penalty to persons found guilty of committing heinous crimes. Notwithstanding the shrill and deafening cries of many a worthy multitude of people, the time has now arrived to decisively affirm to remove and banish the death penalty from our statutes. 

Since 2000 only 4 exections have taken place in the country, the last being the 1993 bomb blast case convict Yakub Memon in 2015.  Before that India had executed Afzal Guru in 2001 for the Indian Parliament attack, Dhananjoy Chaterjee in 2004 and Ajmal Kasab in 2012.  The debate to abolish death penalty or make its enforcement more frequently practiced remains a raging issue in India. Crimes such as the ‘Nirbaya’ case serve as a reminder that it is indeed a difficult choice between human rights and the palpable popular sentiment which insists on meting out justice through the sentence of death. 

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable means of supposedly safeguarding the common good. Today there is an increasing awareness and affirmation that the dignity of the person should not be lost even after his/her committing a serious crime. In addition, a new understanding has emerged of the sheer futility of the penal sanctions imposed by the state. More effective systems of detention has now been developed, which ensure due protection to the citizens. The death penalty has no place in a civilized society of the 21st century.  It does little to deter crimes, neither serves the interest of the victim or meets the ends of justice. Portugal was the first country in the world to abolish the death penalty in 1911.

The Justice Verma Committee, formed in the aftermath of the December 16 case to review the rape laws in India, submitted in their report that the death penalty is “a regressive step in the field of sentencing and reformation.”  The Law Commission, too, in a 2015 report recommended that, except for cases of terrorism, India should strive to do away with the capital punishment. The reasons cited by the Commission were that the death penalty is hardly a deterrent, and that mercy petitions in India are plagued by long waiting periods. In the past several countries have recommended and counseled India to abolish the death penalty which violates the most fundamental right – the right to life. Justice Krishna Iyer often stated “Gandhi’s country must set an example by abolishing capital punishment for every state execution amounts to nothing but murder.”  Life is given by God and can be taken away only by God.

The Dalai Lama holds the view that it is always possible for criminals to improve and that by its very finality the death penalty terminates this choice for him/her. Justice can never advance in the taking away of human life, for our criminal justice system is fallible.  We know it, even though we don’t like to admit it. It is imperfect despite the best efforts of most within it to do justice.  And this fallibility is, at the end of the day, the most compelling, persuasive, and winning argument against a death penalty.  Let us not forget, criminals well represented at the trial do not get the death penalty.  In terms of economics, it costs more to pursue a capital case toward execution than it does to have full life imprisonment without parole. International human rights organisation – Amnesty International released a statement opposing the granting of the death sentence in the Nirbaya case.  The rights body said that it opposes the death penalty on the principle as it is “the ultimate violation to the right of life.”  Studies have also shown that death penalty does little to deter crimes or serve the victims.  Moreover it interferes in the healing process to the families of victims.  

Hinduism has historically not taken a stance on the death penalty and has little influence on the government’s opinion of it.  Buddhism has a strong belief in exercising compassion for the lives of others. There is an innate understanding of healing people who have committed crimes rather than retaliation against them. The Christian Church teaches that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person, which contradicts God’s plan for man and society” and “does not render justice to the victims, but rather fosters vengeance.” And she works with determination for its abolition worldwide.” 

The foremost requirement in death penalty jurisprudence today is the need for consistency in applying the ‘rarest of rare’ rule, and for clarity on what satisfies the collective conscience. Protecting society and deterring crime has a hoary history. While leniency in sentencing is seen as an individual benefit flowing from a judge-centric approach to justice, severity is invariably in the name of society. The law of our land has bared its fangs of death and four convicts will die on 1st February, 2020, their lives trivialised, prematurely snuffed – out by the hang – man’s noose – all for the glory of a stoic law.  The court’s reasoning for sentencing all the four to death is steeped in the language and jurisprudence of outrage.  As long as imposing death is available as a form of punishment, the moral dilemma that every judge faces is inescapable. 

(The writer a social scientist and Sr. Criminal lawyer.)