By Vershika Sharma, National Law University, Jodhpur.

India is one of the 59 countries in the world that still retain death penalty even after the United Nations General Assembly adopted Resolution 62/149 on 18-12-2007. 262nd Law Commission Report is the outcome of references made by the Supreme Court in death penalty matters to discuss and re-examine its previous reports and suggest changes considering recent debates and allegations on the national and international front.

The law commission shows a major shift in its reasoning for the abolition of death penalty when it says that “time has come for India to move towards abolition of death penalty”, whereas, in its previous major review in 1967, the Law Commission had said that “at the present juncture India cannot risk the experiment of abolition of death penalty and capital punishment should be retained in the present state”.

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The current status is such that the judges can impose death penalty in the “rarest of the rare” cases only, including treason, mutiny, murder, abetment of suicide and kidnapping for ransom with a latest addition in 2013 whereby S. 376A was added in the IPC and cases where rape was fatal or left the victim in a persistent vegetative state and certain repeat offenders were also included under the death penalty.

Reasons given by the Law Commission to do away with the death penalty

  1. Development in India:

The reasons given by the 37th report of the Law Commission were: “conditions in India to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country”. However, various socio-economic conditions and cultural conditions are vastly different today from those prevailing in 1967. For example, per capita Net National Income, adult literacy, life expectancy etc. have improved drastically. There has been a noticeable decline in the murder rates since 1992 that has coincided with a corresponding decline in the rate of executions, thus raising questions about whether the death penalty has any greater deterrent effect than life imprisonment.

  1. Arbitrariness

The report said that the imposition of death penalty is arbitrary in nature. Even when the SC had pronounced death penalty, it did not issue death penalty guidelines. In many cases, the Court has acknowledged that the subjective and arbitrary application of the death penalty has led “principled sentencing” to become “judge-centric sentencing”, based on the “personal predilection of the judges constituting the Bench”. Supreme Court itself showed doubt about the implementation of the “rarest of the rare case”. Many times, chronic mental illness, long delays due to investigation, partial and incomplete summary, non application of mind,etc. are not considered while pronouncing death penalty.

  1. International Stand

India is one of the minority countries where death penalty still prevails. Not that India has to follow the other countries, still that is a hint that times have changed and that India needs to revisit the death penalty provisions and make the required changes.

  1. Waiting- A Torture for Convict

People sentenced to death by Indian Courts face long delays in trials and appeals, and further when the final order is passed by the SC, waiting for the mercy petition result becomes a big torture as very frequently the death row convicts are put to solitary confinements as soon as their sentence is pronounced. Therefore, the convict suffers from extreme agony, anxiety and debilitating fear of an impending execution and uncertainty regarding the same. Such circumstances produce physical and psychological conditions of near torture for the death row convict.

Therefore, keeping in mind all the abovementioned factors the report concluded that death penalty does not serve the purpose of punishment anymore than life imprisonment which incidentally means imprisonment for whole life (indeterminate period) in India. Retribution is important in punishing criminals but cannot be equated with vengeance as “an eye for an eye” is not the essence of the constitutional mediated criminal justice system.

If the recommendations of the Commission, that death penalty should be abolished in all cases except for crimes involving terrorism and waging war, are to be accepted, then the term terrorism and terrorist needs to be given a clear and definite meaning which is not the case at present as the term terrorist is not defined in Indian statute book or even in any International Treaty. I do accept that in these two circumstances, there is a necessity for death penalty considering the security of the nation and prevention of further bigger crimes which take place in furtherance to the release of the death row convicts, and the funds used in the security of these convicts are according to me definitely not worth the outcome.

In a nation that aspires to be a modern democracy and claims to be an incarnation of the most ancient living civilisation, death penalty does not help in furthering the cause rather it is a barbaric anomaly which will only pull back the developmental strings of the nation. It is time that the required changes regarding death penalty be made in the system and death penalty be repudiated  in light of collective consensus of the community.

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