Death sentence has survived years of criticism for being a barbaric form of punishment. With doubts having been raised over the retributive form serving as a deterrent—which tilts the debate in favour of its retention—a recent report by the National Law University, Delhi, should be a compelling reason to take a fresh look at death penalty.
The study reveals that two-thirds of the 385 prisoners on death row as in January 2015 belonged to the backward classes, Dalits, adivasis or religious minorities. Further, a vast majority was poor or illiterate (80 per cent) with half of them having no understanding of legal proceedings and 70 per cent having had no interaction with lawyers during pendency of their appeals.
Last year, the Law Commission recommended abolition of death penalty except in terror-related cases, while stressing that there was no evidence to show that it served as a greater deterrent than life imprisonment.
Though the sentence continues to haunt the vulnerable, it is doubtful if it can prevent hardened criminals when actual hanging is a rarity. It cannot be ignored that all three hangings that have taken place in India after August 2004 have been of terrorists. This in itself should be enough to convince us that we can do without death sentence for other crimes.
With terror attacks and organised crimes pushing the demand for abolition of death sentence back by years, the commission seems to have suggested a practical solution. Capital punishment should be abolished from the Indian Penal Code, leaving terror laws untouched.
The UK made a similar move before abolishing the penalty. The Murder (Abolition of Death Penalty) Act 1965 replaced death for murder with life imprisonment while empowering the court to declare a period which should elapse before the executive ordered the person’s release. This ensured that courts were able to award adequate punishment even after the abolition of death sentence.
Despite hanging being a rarity, the reason for over 300 convicts being on death row could be because of the huge gap between death and life imprisonment in India. With life sentence practically meaning jail term of mere 14 years, a trial court might find it inadequate for some crime committed in a heinous manner even though death may be a bit too harsh.
Though in India, life imprisonment means jail term till one dies, the executive is empowered to release a life convict after 14 years. The 1965 law in England filled a similar void.
With legislature not making a move, the apex court tried to bridge the gap between death and life (14 years, the second highest sentence) in the 2008 Swamy Shraddananda case by taking upon itself the power to bar remissions till death or a certain number of years. The court substituted death with imprisonment till death in the case.
A sentence till death or jail terms of 20 years, 30 years, 40 years or more can be introduced instead of continuing with death sentence, in which case an error costs no less than a life.
gyanant@gmail.com (Singh is a Delhi-based lawyer)