Continuing debate
THE delay in the hanging of the convicts in the gang rape and murder of a 23-year-old physiotherapist in December 2012 has been a matter of intense discussion. Significantly, the idea that the nation’s “collective conscience” demands that they be hanged has superseded all arguments against the death penalty.
When the senior lawyer Indira Jaising publicly appealed to Asha Devi, the mother of Nirbhaya (the name given to the victim of the gang rape), to forgive the four convicts, she was met with resistance and her locus standi was questioned. As quoted by the news agency ANI, Asha Devi said it was because of people like Indira Jaising that rape incidents did not stop.
A blame game ensued between the Delhi and Central governments on who was responsible for the delay in the execution of the death penalty. Delhi Chief Minister Arvind Kejriwal, while appealing to the BJP not to do “politics” on the issue, said there was a need to join hands to ensure “such a system that the beasts get hanged within six months”. In this context, it is pertinent to revisit the Law Commission recommendations in August 2015 that the death penalty be removed from the statute books excepting in cases dealing with terrorism and waging war against India. The Supreme Court had asked the Law Commission to examine whether the death penalty was a deterrent.
The United Nations Resolution 62/49 in 2007 calls for a moratorium on executions by countries that retained the death penalty. India was among 59 such countries. Significantly, the previous reports of the Law Commission (Report Number 35, 1967) had advocated the retention of the death penalty. The 187th report (2003) dealt with the mode of execution.
India, Report Number 35 said, could not risk the experiment of abolition of capital punishment because of the conditions prevalent at that point, the social upbringing of inhabitants, and the disparity in the level of morality and education in the country. The high crime rate and levels of homicide were deciding factors in retaining the death penalty, it said. At the same time, the report stated that the per capita rate of homicide in India was higher than in countries where the death penalty had been abolished. While recommending partial abolition of the death penalty in 2015, the Law Commission, based on National Crime Records Bureau figures, concluded that murder rates were falling and, correspondingly, the rate of execution had also declined.
In Bachan Singh vs State of Punjab, the Supreme Court observed that the “scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts... judges should never be bloodthirsty”. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality, it held. “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably