The Law Commission of India is to hold a one-day consultation on the death penalty on the coming Saturday i.e. 11th July, 2015 at the India Habitat Centre in New Delhi. Inaugurated by Shri Gopal Krishna Gandhi, the consultation will bring together a select group of leading figures in the judiciary, the bar, academia, media, and political and public life, to debate and discuss various aspects of the death penalty. In order to facilitate comprehensive deliberations, the consultation is organized as a roundtable and all participants will attend the event throughout the day. Each session will begin with short remarks by invited speakers. The floor will then be open for inputs from all participants. Besides leading figures from Indian society, the consultation will be attended by Professor Roger Hood, Professor Emeritus of Criminology and Research Associate, Centre for Criminology, University of Oxford.
Four key themes will be discussed at the consultation, as follows:
- Arbitrariness and Discrimination: Is the death penalty applied arbitrarily? How can this be avoided or removed? Does the death penalty discriminate against marginalized and vulnerable people?
- State of the Criminal Justice System: What are the challenges faced by the criminal justice system, including the police, investigation processes, the judiciary and jail systems? How can the system be improved to allow for fair, impartial, and error-free application of the death penalty?
- The Penological Purpose(s) of the Death Penalty: What purpose does the death penalty serve? What alternatives can replace the death penalty to serve the same purpose?
- The Way Forward: Retention, Reform, Abolition: Should the death penalty be retained in its present or modified form, in view of India’s constitutional and international legal commitments?
The participants for the consultation will represent stakeholders from all walks of society. These include distinguished judges, Justice (retd.) Prabha Sridevan, Justice (retd.) SB Sinha, Justice (retd.) Hosbet Suresh, Justice (retd.) K Chandru and Justice (retd.) Rajinder Sachar. Political leaders such as Brinda Karat, Manish Tewari, Shashi Tharoor, Majeed Memon, Kanimozhi, Varun Gandhi, and Aashish Khetan will be present. Former Chief Information Commissioner Wajahat Habibullah will also participate, as will social activist Usha Ramanathan. Sitting and former police officers such as Julio Ribeiro, DR Karthikeyan, Sankar Sen, PM Nair, Chaman Lal and Meeran C Borwankar will attend. Participating lawyers include KTS Tulsi, TR Andhyarujina, Yug Chaudhry, Sanjay Hegde, Colin Gonsalves and Dushyant Dave. NGOs working in the field will also be represented, such as ACHR, SAHRDC, and CHRI.
A day before the consultation i.e. tomorrow evening 10th July, 2015 , the Law Commission will host a lecture by Professor Roger Hood at the India International Centre, New Delhi. Professor Hood is presently Professor Emeritus of Criminology, University of Oxford and Emeritus Fellow, All Souls College, Oxford. He will speak on the “Universal Abolition of the Death Penalty: A Human Rights Imperative.” Professor Hood will also participate in the consultation.
It may be noted that the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. Maharashtra and Shankar Kisanrao Khade v. Maharashtra, had suggested that the Law Commission should study the death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject.” In May 2014, the Commission invited public comments on the subject by issuing a consultation paper. The one-day consultation is being held further to the comments received in response to that paper, and the views set forth during the consultation will aid the Commission in formulating its Report on the issue.
The present law of the death penalty was laid down in Bachan Singh v. State of Punjab (1980), when the Supreme Court upheld the constitutionality of the penalty. However, the Court confined its application to the rarest of rare cases, to reduce the arbitrariness of the penalty. In arriving at its decision in that case, the Court had relied on the 35th Report of the Law Commission, previous decisions from India and elsewhere, and contemporary scholarship.
The 35th Report of the Law Commission, which the Court relied upon in Bachan Singh, also needs to be re-visited, especially since it was submitted in 1967, and thus did not account for the over-hauling of the death penalty framework in the Code of Criminal Procedure, 1973, as well as other changes in India’s socio-political and legal landscape.
The legal landscape has also transformed in the 35 years since Bachan Singh. In 1980, when Bachan Singh was decided, only 18 countries had abolished the death penalty for all offences. Since then, about two-thirds of the world has abolished the death penalty in law or in practice. 98 countries have abolished the death penalty for all offences, seven have abolished the death penalty for ordinary crimes, and 35 others have imposed an effective moratorium against the death penalty. In international criminal law, the death penalty has been abolished for even the most grave and heinous offences, such as genocide, crimes against humanity and war crimes.
In recent cases, the Supreme Court has recognized that despite the “rarest of rare” doctrine, the death penalty continues to be applied arbitrarily. In Santosh Bariyar v. State of Maharashtra (2009), the Supreme Court recognized that the penalty was wrongly imposed on at least 15 persons. In Sangeet v. State of Maharashtra (2013), the Court admitted that the penalty was wrongly imposed in 5 other cases, adding that it was unable to decide whether the case was fit for imposing the death penalty due to uncertainties in India’s death penalty jurisprudence. Advances in empirical research, particularly in countries where the death penalty has been abolished, have also disputed the supposed deterrent effect of the death penalty.
These changes in India and elsewhere make it an opportune moment to revisit questions of the constitutionality and desirability of the death penalty.