Why India’s embrace of death penalty must end

The Supreme Court of India, earlier today rejected the review petition of Surendra Koli, convicted of murders and sentenced to death. The apex court had previously stayed the execution in a dramatic midnight order nearly seven weeks ago. With this order, there is a strong possibility that India will witness its third execution in three years. 

Capital punishment, though constitutionally permitted, is treaded very carefully by the courts. It was the Supreme Court, in the Bachan Singh v State of Punjab 1980 landmark case, which narrowed the scope of death sentencing. In that case, the court laid down the “rarest of rare” criteria, which required the crime to be of “heinous” nature and where the “alternative option of life imprisonment is foreclosed”. 

According to the Indian Penal Code, death sentencing awarded by trial court needs to be confirmed by High Court. In most cases, the convicts wait till the Supreme Court decides on the High Court confirmation order before taking recourse to mercy petitions. Here, the final authority lies with the President of India, who has the power to recommend commutation of death sentence. A study published by Asian Centre for Human Rights has tracked that, since being elected in July 2012, President Pranab Mukherjee has rejected 22 mercy petitions and commuted only one. This gives him a 97% rate of rejecting mercy petitions. Thus, most death row convicts have appealed to the Supreme Court for stay of executions. 

In Shatrugan Chouhan v Union of India 2014, the Supreme Court ruled that Article 21 afforded protection of fundamental rights to death row convicts. Subsequently, in Murugan v Union of India 2014 (Rajiv Gandhi assassins case), the Supreme Court applied the reasoning from Shatrugan Chouhan case to allow commutation of death sentence of convicts. In both cases, the Court cited the violation of fundamental rights arising from the delay in deciding the mercy petitions. 

While speaking on the World Day Against Death Penalty, UN Secretary General Ban Ki-Moon  urged all countries to “reaffirm faith in fundamental rights” and impose moratoriums on executions. Recently, Pakistan extended its unofficial six-year moratorium on death penalty. In the same time, India has carried out two executions. 

When nearly 160 countries have done away with the practice death penalty, India is part of a minority that continues to remain on the wrong side of the debate. Breaking with its traditional opposition to the global movement for abolition, India should support the next United Nations General Assembly Resolution seeking to adopt a moratorium on death penalty. 

In a recent call for public opinion on death penalty by the Law Commission of India, over 400 responses favouring abolition of the practice have been received. Chairman of the Law Commission, former Justice AP Shah, has informed that they will be making recommendations to the Government soon. One can only hope that these recommendations push the Government to call for a fresh public debate on the issue of death penalty. 

Manuraj Shunmugasundaram 

(Author is a policy advisor to elected representatives)

Link to the Article: https://www.thenewsminute.com/features/why-indias-embrace-death-penalty-must-end-26248