By: LiveLaw Research Team

While deciding the question of abolition of death penalty, will public opinion matter before Constitutional Courts or even a legislature?

The question assumes significance, as public opinion in India, as expressed in public protests against those who commit heinous crimes, has always seemed to support its continuance. But there is a vast substantial section of society which would wish its abolition.

In 2013, a survey conducted by the Centre for the Study of Developing Societies, (CSDS) as part of the CNN-IBN-The Hindu Election Tracker survey found that 40 per cent of the respondents ‘fully’ or ‘somewhat’ agreed with the proposition that the ‘death penalty should be abolished as life imprisonment was punishment enough’.   Thirty per cent disagreed, while another 30 per cent did not offer an opinion.

If one leaves this last category of neutral respondents, the majority does indeed seem to be in favour of abolition.  This survey had interviewed close to 20000 respondents across 267 constituencies in 18 states. Three years after this survey, one does not know the latest trend in the public opinion on the issue, as we don’t have the results of another public opinion poll on the issue. But that does not prevent us from looking at the results of the latest public opinion poll, conducted by the Pew Research Center in the United States.

The Center, on September 29, released its findings, which point out that support for death penalty is lowest in more than four decades.  Only about half of Americans (49 per cent) now favour the death penalty for people convicted of murder, while 42 per cent oppose it. More important, support for death penalty has dropped seven percentage points since March 2015 from 56 per cent.

Public support for capital punishment in the U.S. peaked in the mid-1990s, when eight-in-ten Americans (80 in 1994) favoured the death penalty and fewer than two-in-ten were opposed (16 per cent).  Opposition to the death penalty is now reported to be the highest it has been since 1972. The New York Times wrote in its editorial yesterday, (October 24) as follows: “Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.

The signs of capital punishment’s impending demise are all around….The loss of majority support is an important marker against state-sanctioned killing.” The NYT further pointed out that executions and new death sentences are at historic lows, and each year they go lower.  In 2015, only 49 new death sentences were handed down in the U.S., the lowest one-year total since the American Supreme Court reinstated capital punishment in 1976. The editorial reveals that since there were about 14000 murders around the country last year, the small number of newly condemned people might make one imagine that the justice system is focussing on the ‘worst of the worst’ (something akin to our rarest of rare). But this assumption, the editorial argues, is wrong, because the crimes of the people sentenced to death are no worse than those of many others who escape that fate.

Back home, the Indian Supreme Court itself has noticed several such instances of accused with similar factual matrix, either suffering death sentences or life imprisonment, depending on the composition of the benches. In the U.S., though, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors, inadequate public defenders, and a pattern of racial bias and exclusion.   T

his was the key finding of a two-part   report recently issued by the Fair Punishment Project at Harvard Law School. With three of the Supreme Court’s nine justices – Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, expressing deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection, the NYT editorial concludes thus: “The death penalty has escaped abolition before, but rather there are no longer any excuses.  The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.”

In the U.S. the plea for abolition of death penalty stems from the latest findings of a public opinion survey, which reveal dwindling public support for it. In India, on the contrary, there is a silent majority of people, who want its abolition.  But merely becaus

e this section is silent, and its views have not been brought into public domain through an authoritative survey, abolition of death penalty in India appears to be a mirage.

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