The mood was reflected in a forthright stand that the Indian National Congress took a week later. In its three-day Karachi session that began on March 29, 1931, the Congress passed a series of resolutions on Fundamental Rights and Duties, Labour, Taxation and Expenditure, and Economic and Social Programme.
Clause XIII of the resolution on Fundamental Rights and Duties declared: “There shall be no capital punishment.”
The Karachi resolution, which was drafted by Jawaharlal Nehru and revised by Mahatma Gandhi, is significant because it provided the implicit socio-juridical basis upon which the modern Indian nation was to be founded and whose spirit reflected in the Indian Constitution. The All India Congress Committee that met on August 6-8, 1931 made this point clear by declaring that “any Constitution which may be agreed to on its behalf should provide for” the Karachi Resolution. Indeed, the Constituent Assembly, which deliberated between December 9, 1946, and November 26, 1949, incorporated most of aspects of the Karachi Resolution in the Indian Constitution.
But by the time the Constituent Assembly took up the issue of capital punishment, the adherents of Hindutva had sufficiently disoriented the mood of the nation by brutally killing Mahatma Gandhi on January 30, 1948. The culture of compassion that had created a national consensus against capital punishment in 1931 got sabotaged by the assassination.
Sanctity of human life
Thus, when on November 29, 1948, ZH Lari, a Muslim League member of the Constituent Assembly from the United Provinces (as Uttar Pradesh was called then), moved an amendment to abolish the capital punishment, many of the Constitution makers were horrified. The assassination of Gandhi by Nathuram Godse, an adherent of Hindutva, had hardened the attitudes of many of the Congress leaders who in 1931 had so enthusiastically backed the resolution against capital punishment.
Moving the amendment in the Constituent Assembly on November 29, 1948, Lari laid out three reasons why capital punishment should be abolished:
“The first consideration is that human judgment is not infallible. Every judge, every tribunal is liable to err. But capital punishment is irrevocable. Once you decide to award the sentence, the result is that the man is gone. […] The second consideration is that human life is sacred and its sanctity is, I think, accepted by all. […] A man’s life is taken away if there is no other way to prevent the loss of other human lives. But the question is whether capital punishment is necessary for the sake of preventing crimes which result in such loss of human lives. I venture to submit that at least thirty countries have come to the conclusion that they can do without it and they have been going on in this way for at least ten years, or twenty years, without any ostensible or appreciable increase in crimes. […] The third consideration is that this is a punishment which is really shocking and brutal and does not correspond with the sentiments which prevail now in the present century.”
While concluding, Lari said: “Lastly I would submit that the reformative element in punishment is the most important one, and that should be the dominant consideration.”
After Lari moved the amendment, Vice President HC Mookerjee, who was in the chair, adjourned the House for the day.
Voices of opposition
The next day, on November 30, 1948, two members of the Constituent Assembly – both from the Indian National Congress – spoke on the issue and opposed the amendment seeking abolition of death penalty. The first, Congress leader from Bihar Amiya Kumar Ghosh, kept his opposition muted, wavering between technical and substantive reasons for his opposition to the amendment. The second speaker, K Hanumanthaiah from Mysore, minced no words and even referred to Godse while arguing against Lari’s amendment.
In his argument, Ghosh said: “I think that with the growth of consciousness, with the development of society, the state should revise a punishment of this nature but the proper place of doing such a thing is not the Constitution. We can do it by amending the Indian Penal Code where such penalty is prescribed for different offences.”
He then added: “We are now passing through a transitional period, serious problems are confronting us, different sorts of situation are arising every day, and so it is quite possible that at times the State may require imposition of such grave penalties for offences which may endanger it and the society.”
Hanumanthaiah’s argument was straightforward. “If every man who takes away the life of another is assured that his life would be left untouched and it is a question of merely being imprisoned, probably the deterrent nature of the punishment will lose its value. […] Therefore, if a man who kills another is assured that he has a chance of being released after seven or eight or ten years, as the case may be, then everybody would get encouragement to pursue the method of revenge, if he has got any. For example, let us take this Godse incident.”
After a brief interruption by the Vice President, who asked him not to refer to “this particular individual”, Hanumanthaiah continued: “If a man who resorts to kill an important or a great man and if he is assured that he would be released after seven years or eight years, as the case may be, he would not hesitate to repeat what he has done, and conditions being what they are today, it would be very unwise from the point of view of the safety of the state and stability of society, to abolish capital sentence.”
Immediately after Hanumanthaiah concluded, Dr BR Ambedkar, chairman of the Constitution Drafting Committee, declared that he did not “accept the amendment”.
The atmosphere, left vitiated by Gandhi’s murder, was no longer conducive to carry forward the pledge the nation had taken following the execution of Bhagat Singh and his comrades. It’s ironical that the assassination of the man who said an eye for an eye makes the whole world blind proved to be the turning point when India opted for capital punishment.