In 1980, the Supreme Court in the Bachan Singh vs State of Punjab abolished the mandatory death penalty in cases of murder and propounded the “rarest of rare” doctrine, allowing courts to impose death penalty in cases such as murder, terrorism, treason, espionage. Rape resulting in death or a permanent vegetative state of the victim was introduced in 2013. According to the Supreme Court, “Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their opinion about desirability of otherwise of retaining death penalty.”
Although India is an ardent follower of the reformatory theory, special exceptions have been made to ensure that offenders committing heinous crimes are punished. Capital punishment should be retained for extreme crimes that shock society or those that affect national security. Punishment should be awarded considering factors such as gravity of crime, manner of commission of the crime, the motive, anti-social or the abhorrent nature of the crime.
The International Covenant of Civil and Political Rights in Article 6, recognises a nation’s right to award death as long as due process of law is followed. In 1967, the Commission in its 35th report had supported continuation of the death penalty citing the size of the country and diversity of its population across which law and order had to be maintained. In 2015, the Union home ministry rejected the Law Commission’s recommendation for abolition of death penalty saying the time was not ripe to remove it completely from the statute book keeping in mind the threat from terrorism. There are limited crimes in which you can be subjected to death penalty in India. In the past 10 years, India has sentenced over 1,000 people to death but only four have been hung till death.
In addition, once the death penalty is sentenced, convicts all requisite procedural safeguards, the right to appeal to higher courts and eventually to the President for clemency. We have a fairly rigid system of due processes to prevent wrongful convictions. Capital punishment, when delivered scrupulously after examining facts, can aid in protection of the moral conscience of society.
The writer is an advocate in the Hyderabad high court
