To be or not to be

The Law Commission in its 262nd report has recommended that death penalty be abolished for all crimes other than terrorism-related offences and waging war. Parliament is informed that the opinions of states and union territories are sought as it is the Constitutional stipulation. A majority of nations have abolished the death sentence for all crimes.

The Supreme Court in Bachan Singh vs Union of India, 1980, held that the law‘s instrumentality ought not to be used to take away life except in rarest of rare cases when the alternative options unquestionably foreclosed. But, what constitutes ‘rarest of the rare’ is subject to interpretation and thus a bone of contention.

The experience in India suggests that the phrase ‘rarest of rare’ crime is loosely interpreted to award death penalty in increasing array of offences. Even the Law Commission referred to the unguided discretion of sentencing courts. Capital sentencing in India is often based on the personal predilection of judges.

The Supreme Court in Bachan Singh and other subsequent verdicts held that the subjective opinion of individual judges as to the morality, efficacy or otherwise of a sentence, particularly death sentence, cannot be ruled out. If the law panel recommendation is adopted, the ‘rarest of the rare’ crimes would be concretely defined and shall prevent its wide applications.

Studies indicate that the death penalty has failed to deter heinous crimes. The Law Commission analysis reveals that there is no evidence to conclude that the death penalty has a deterrent effect over and above life imprisonment. The absence of the deterrent effect of death penalty is because most of these crimes for which such a harsher punishment is awarded are heat-of-the-moment crimes unlike the acts of terror that are preplanned.

None can give any guarantee that a person is not falsely implicated given the levels of corruption and inefficiency in our criminal justice system. The majority verdict of apex court in Bachan Singh also held, “… such errors of judgment cannot be absolutely eliminated from any system of justice, devised and worked by human beings …”.

The court in Ravji vs. State of Rajasthan, 1996, had in fact admitted such errors. The death penalty is an irreversible punishment and can only be awarded when such a foolproof system is assured at any cost. Even if the death penalty is awarded in the rarest of rare cases like terrorism or war, judicial errors cannot be totally eliminated. Thus, adequate safeguards and checks are an imperative.

The experience of death penalty in India also suggests a class divide among those who were sentenced for this. The rich and the mighty have manipulated the system to escape the clutches of law while the poor and marginalised were served with sentence to death.

Both the blood-thirsty demand for capital punishment or bleeding-heart urge for its abolition are unwarranted. The well laid down aspects in Indian jurisprudence like the rarest of the rare case test and the test of ‘amenable to reform‘ (Law Commission of India, 2015b) should be applied and per incuriam should be avoided in delivering judgments in such sensitive cases.