Law Commission?s recommendation to end death penalty: a welcome decision?

By Advait Moharir

Occupying a political discourse related to criminal law, Capital punishment is one of the most debated issues in our contemporary world. History observes that as far as the treatment of criminals is concerned, we as humans have become a less barbaric and less cruel race. As we progress deeper into the 21st century, it stands to be recognised that criminals are human; that they too have the tendency and scope to reform. Considering this, the latest report by the Law Commission of India comes with a heartening development. The commission has recommended the abolition of death penalty, except for cases related to war against the state or terrorism.

The evolution of law

Legal trends in India showcase a decline in the support for the death penalty since the Independence. For the first few years after independence, the number of convictions and executions were fairly high. In fact, the Law Commission report of 1967 states that there were 1410 executions from 1953-1967. However, there has been a steep decline since then. In Bacha Singh v/s State of Punjab, it was declared that the death penalty was to be given only in the “rarest of the rare” cases. Similarly, in Mithu v/s State of Punjab, the Court struck down Section 303 which said that it was mandatory to give the death penalty to everyone serving a life sentence. In Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002), the Court evolved the concept of curative petition. The accused could now appeal against the final judgement of the Supreme Court. These judgements show that India has evolved in its stance regarding the death penalty. The rigidity of the law has been reducing, and obsolete legislation is being removed. 

The legal precedents have made it difficult to implement the penalty. There needs to be conclusive evidence of the occurrence of the crime. Further, the crime must fall within the ambit of the rarest of the rare. In 2015, National Crime Records Bureau stated that in the last 10 years there have been 1303 capital punishment verdicts by the Indian courts. However, these were followed by only 4 executions. The tedious legal procedures take a long time to arrive at decisions, and most death penalty sentences then become life sentences. From 1995-2015, 3,751 death sentences were converted to life imprisonment. Former President Pratibha Patil granted a record 30 pardons in a space of 28 months, showing how the death penalty rarely translates to executions.

Other obstacles

The common argument for the death penalty is that deterrence is faulty with no evidence to back it up. No significant fall in any kind of crime with a death penalty mandate has been recorded. Even when there has been a fall, a casual relationship has not been proven. One argues that the abolition of death penalty will lead to a huge rise in the cost of maintenance of dangerous criminals in jail. However, it is often ignored that the cost of an execution is equally high, if not more.  As it is a top secret process, it requires a series of legal procedures and expenditures to maintain security.

The most contentious argument, however, remains for the death penalty for rape. One recognises that rape is a heinous offence falling, more often than not, in the rarest of the rare cases. Despite an Amendment to Section 376 of the IPC which allows death penalty for rape cases where the victim is left in a vegetative state, the death penalty has failed to reduce such occurrences. While it does often give closure to the victim and the family, it hardly works as a deterrent. Rape is a much broader social issue requiring massive reform in moral and sex education.

The way forward

The Law Commission’s recommendation is indeed praiseworthy. All precedents, legal or otherwise show that death penalty is becoming outdated as a punishment for crime. More than 140 countries have abolished capital punishment. It’s time to make our justice reformative, not restorative and for the death penalty in India to end.

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