Over 53 years after it favoured retention of the death penalty in statute books, the Law Commission of India has recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war against the country. Three members of the commission, including two representing the Ministry of Law and Justice — Law Secretary P K Malhotra and Legislative Secretary Sanjay Singh — submitted dissent notes against the recommendation to abolish death penalty. The People’s Union for Civil Liberties (PUCL), Ahmedabad, in a statement, has pressed for complete abolition of death sentence, including for terrorists. Text of the statement by PUCL Bulletin (September 2015) Editorial Team:
While delivering the 35th Jay Prakash Narayan (JP) Memorial Lecture on March 23, 2015 in Bangaluru, the distinguished former civil servant and diplomat Gopalkrishna Gandhi,ringingly declared: “I would like to take this opportunity to say right at the start… that India must move determinedly forward to the abolition of the capital punishment.” He alluded to the fact that JP — PUCL’s founder — championed causes forsaken by the majoritarian media and public, such as opposition to capital punishment. Going by popular reactions to frenzied media reports in India now of executions and of rejections of mercy petitions or appeals by those on death row, it would appear that a majority of vocal Indians favour the death penalty.
But laws are not made to — and more pertinently, courts are not expected to — appease the majority. If that were to be so, the legislature, the executive and the judiciary could well abdicate their responsibilities as regards ensuring adherence to the rule of law and give in to mob rule and blood lust. PUCL has had a long-standing and rock-solid opposition to the death penalty. And it has been, and very much is, on the right side of history.
For, as of now about 100 countries are abolitionist in law and another 40 more are abolitionist in practice (meaning that they have not carried out an execution for so long that they are deemed to have forsaken capital punishment). Smaller South Asian neighbours such as Bhutan and Nepal have set an example for others in the region to follow. India is in the recalcitrant company of China, Iran, Pakistan, Saudi Arabia and those generally regarded as democracies — Japan and the United States — as a retentionist state.
That the death penalty is not a deterrent to crime is evident to anyone who compares the crime statistics as between Europe (except retentionist Belarus) and the United States: And within the United States, as between the 19 abolitionist states and the 31 retentionist ones (among the latter are many who are practically abolitionist).
Lack of deterrence effect is only one of numerous arguments. Even in jurisdictions such as Britain and the United States and elsewhere (where litigation is hugely expensive) there have been several instances of people long dead or still alive being declared innocent following the reopening of cases. Often in India, supporters of the death penalty invoke “victims’ rights”. Many an erudite article setting out the reasons against the death penalty in general or particular instances where due process was not adhered to – “think of the victims”, comes the response. Do victims find closure through another killing or through speedy justice? In the United States, there are numerous organisations such as the Murder Victims’ Families for Human Rights which sternly oppose capital punishment. Such movements need to be fostered in India.
“But terrorists need to be punished”. Indeed. But with death? By executing Ajmal Kasab in 2012, India sacrificed a prime witness. And the young man might have been afforded a chance to repent and reform. Just a few months later, the Kashmiri Afzal Guru was executed in 2013 in order to satiate the “collective conscience” of society – as the Supreme Court of India infamously had it. One person’s terrorist is another’s freedom-fighter.
Nelson Mandela was deemed a terrorist for long years by Western powers that later queued up to invite him. Kurdish leader Abdullah Ocalan would have been executed had Turkey not applied to join the European Union. Ocalan has been talking peace to the extent that the US magazine hailed him as one of the “100 most influential people in the world” in 2013. Adolf Eichmann ought to have been spared his life to, not just repent assuming he’d have been so minded, but more importantly to dialogue with his Israeli captors (who, alas, have now adopted the genocidal and apartheid policies vis-à-vis the Palestinians that the regime Eichmann served did towards Jews).
MK Gandhi’s sons as well as Narayan Desai, son of Gandhi’s illustrious secretary Mahadev Desai, had pleaded for sparing the life of Nathuram Godse. The good judge Jyotsna Yagnik, while sentencing Maya Kodnani, Babu Bajrangi and other Hindu terrorists in the NarodaPatiya case as part of the 2002 anti-Muslim pogrom in Gujarat, eschewed the death penalty, arguing rightly that it went against “human dignity”.
What is sauce for Hindutva terrorists, ought to be sauce for terrorists of other hues – or those so deemed so – unless Apartheid becomes the new world order. There are many other reasons for abjuring the death penalty. The following package of articles and notes examine the issue from various angles.
Click HERE to read full text of the Law Commission report on abolishing death sentence