The Supreme Court has rightly upheld the death penalty because India cannot furnish free shelter, food and education to child rapists, terrorists and dissolute murderers. They must be sent to meet their Maker who alone knows why some human beings were born notwithstanding the United Nations insisting that the death penalty should be gradually reduced in all member countries until the utopia of its complete abolition is reached.
India has adopted a middle path between Saudi Arabia, which beheads those accused of crimes against morality and the Vatican, which teaches that as God is the creator of life, no country has the right to execute any human being, including murderers and child rapists. Human rights activists who toe this line find themselves being isolated within India.
A middle path is the correct path which is why the Central government wants to retain the death penalty. Although government statistics claim 52 persons were executed since independence, the People’s Union for Civil Liberties located records of 1,422 executions from 1953 to 1963 alone while the authoritative Law Commission of India declared that 1410 convicts were executed in the same period.
Research published by the National Law University (NLU), Delhi on death row convicts since 2000 found that of the 1,617 prisoners sentenced to death by trial courts in India, capital punishment was confirmed in only 71 cases. So, the fact that the death sentence is imposed in the rarest of rare cases where the criminal shows no remorse for his heinous crime has been proved beyond doubt.
On August 31, 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, except waging war against the nation or for terrorism-related offences. The report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of deterrence on criminals.
In colonial India, death was prescribed for a slew of capital crimes enumerated in the Indian Penal Code, 1860. So, capital punishment was retained after 1947 with Nathuram Godse and Narayan Apte being the first to be hung to death after Mahatma Gandhi was assassinated on November 15, 1949. India executed dreaded terrorists Ajmal Ali Kasab on November 21, 2012, Afzal Guru on February 9, 2013 and Yakub Memon on July 30, 2015. These three terrorists killed at least 300 people between them.
The Supreme Court pronounced in the 1980 case of Bachchan Singh versus State of Punjab that the death sentence was to be pronounced only in the rarest of rare cases when there was a high degree of brutality. This judgment conformed to the 1973 judgment of the same court in Jagmohan Singh versus State of Uttar Pradesh and the 1979 judgment of Rajendra Prasad versus State of Uttar Pradesh.
The Supreme Court also ruled that honour killings fell within the “rarest of the rare” category as well as on police officers who showed brutality in fake encounter killings. But apart from the Indian Penal Code, there is a provision under The Commission of Sati (Prevention) Act, 1987 (II), that if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against a member of scheduled caste or tribe, resulting in that person’s conviction and execution, carries the death penalty.
In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which made the death penalty mandatory for a second offence of “large scale narcotics trafficking”. This is perfectly in consonance with contemporary thinking because to ruin the lives of youth who take to drugs and escape, the death penalty would be a violation of the right to life of victims.
In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. On February 3, 2013, in response to public outcry over a brutal gang rape in Delhi, the Centre passed an ordinance which made the death penalty mandatory for rape that led to death or left the victim in a “persistent vegetative state”. Repeat rape offenders under the Criminal Law (Amendment) Act, 2013 could also be sentenced to death.
In January 2014, a three-judge panel headed by Chief Justice of India, Palanisamy Sathasivam, commuted sentences of 15 death row convicts, ruling that the “inordinate and inexplicable delay is a ground for commuting death penalty to life sentence”. The Supreme Court ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency. The same panel also passed a set of guidelines for the execution of a death row convict, which included a 14-day gap from the receipt of communication of the rejection of the mercy petition to the execution date.
In February 2014, the Supreme Court commuted the death sentence of Rajiv Gandhi’s killers on the basis of a 11-year delay in deciding on their mercy plea. It was subsequently commuted to life imprisonment. In March 2014, the Supreme Court commuted the death sentence of Devinder Pal Singh Bhullar, convicted in a 1993 Delhi bombings case, to life imprisonment, because of unexplained delay of eight years in disposal of mercy petitions and because of mental illness.
And so to execute a criminal who has killed others may be revenge by the State but it is sweet revenge for those innocents who have been killed in cold blood. Ajmal Kasab, Afzal Guru and Yakub Memon can testify to that were they alive. Those who raped and brutalised Jyoti Singh Pandey deserve death for they are unfit to live on this earth.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.