Supreme Court.
Credit: PTI Photo
The demand for abolition of the death penalty was in focus when most lawyers who attended a Supreme Court hearing on it and the amicus curiae appointed by the court expressed their support for its abolition. The court had initiated suo moto proceedings to examine the need for inclusion of safeguards to reduce instances of death penalty and to expand the list of “mitigating factors” which can help a convict to escape the punishment. The court is also expected to clearly define attenuating circumstances. While a five-judge bench will go into the matter, most lawyers were of the view that the provision should be abolished. This would be in conformity with the worldwide trend to abolish the death penalty. About three-quarters of the world has abolished it. The court has noted that there is the need for framing mitigating circumstances on the death penalty and a uniform framework is needed for this. The Law Commission has also favoured abolition, except in terror-related offences.
But it is disappointing that the official thinking in India is in the opposite direction. The country has voted against United Nations draft resolutions on abolishing capital punishment. The Bharatiya Nyaya Samhita (BNS), which seeks to replace the IPC, has increased the number of crimes that can attract the death penalty from 11 to 15. The parliamentary committee that scrutinised the BNS proposals decided that “the matter may be left for the government to consider”. It stated that the main reason for the abolition of the death penalty is that the judicial system can be fallible and an innocent person can be wrongly sentenced to death. But there are other valid reasons and these were presented in submissions to the committee by experts and others. Unfortunately, the committee did not make its recommendation on their basis but left the matter to the government, whose opinion in the matter is already known.
The Supreme Court has laid down the norm that the death penalty should be awarded only in the rarest of rare cases. But the norm is vague and is interpreted by judges in different ways. It is presented as a deterrent against serious crimes but it is now widely agreed that it has no deterrent value. It is the certainty of punishment, not its severity, that acts as deterrent against crimes. This has been noted by those members of the parliamentary committee who dissented with its recommendation. The system of justice should aim at reforming a person who has committed a crime. Retribution, which is what the death penalty amounts to, does not constitute justice. No-one has the right to take another person’s life; the law must be human.