The move comes close on the heels of the Supreme Court commuting the death sentence of 19 persons after their mercy pleas were rejected since January this year. In one of the cases, the apex court referred to the conundrum and observed that “perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapitative goal”.
Interestingly, the Bombay high court is hearing a last-ditch attempt by two Kolhapur women to save themselves from the noose after their mercy pleas were rejected by the President — they will be the first women to be hanged in independent India. Renuka Shinde and her sister, Seema Gavit, were sentenced to death for kidnapping 13 children and killing nine of them in the 1990s.
READ ALSO: Two sisters from Maharashtra’s Kolhapur may become the first women to be hanged in India
Besides inviting the views of the public, the commission said it was also planning to collect data related to the death penalty from various trial courts, high courts and the apex court. It will also engage law schools to conduct research on the issue. “People have begun to speculate about the end goal of keeping a penalty such as death sentence on the statute book,” said the commission, adding, “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.”
For almost eight years between 2004 and 2012, no executions were carried out till the moratorium was broken with the hangings of 26/11 terrorist Ajmal Kazab and Parliament attack accused Afzal Guru. Critics of the death penalty have pointed to the falling crime rates during this period to tackle the argument that capital punishment acts as a deterrent.
READ ALSO: Parliament House attack convict Afzal Guru hanged to death
According to the government only 54 persons have been executed since Independence. The National Crime Records Bureau’s report reveals that between 2001 and 2011, an average of 132 death sentences were handed down each year by trial courts across the country. The Supreme Court during the same period, however, confirmed only 3-4 death sentences each year.
READ ALSO: Ajmal Kasab hanged and buried in Pune’s Yerwada Jail
Under the Indian Penal Code, crimes that are punishable with a death sentence include treason, abetment of mutiny, perjury resulting in the conviction and death of an innocent person, murder, kidnapping for ransom and dacoity with murder. Following the Nirbhaya case, Parliament changed the law to make a second charge of rape punishable with the death penalty. The Criminal Procedure Code requires special reasons to be given for awarding capital punishment and in 1980 the apex court had set the “rarest of rare” criteria in such cases.
According to law experts, each legal challenge to the death penalty has failed, with the SC quoting the 1967 report of the Law Commission which had said: “Having regard, however, to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”
Advocate Yug Chaudhry said that the Law Commission’s report commands great respect both in Parliament and in courts. “Convicts are being executed in our names, and if one is opposed to this there will be few more opportune moments to do so than the commission’s public consultation,” he said. Chaudhry is representing the two Kolhapur women convicts before the high court.
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