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The Death Penalty: Can we live with it?

On 19 July 1999, the Supreme Court of India will decide whether to uphold the death sentence of four people convicted for taking part in the assassination of former Prime Minister Rajiv Gandhi. The Court stayed the execution order against the four defendants on 7 June 1999 in order to give the bench time to consider their review petition. This case brings into critical light the question of whether India's use of the death penalty is consistent with the country's commitment to democracy and human rights.

In January 1998, a Special Court in Tamilnadu had sentenced to death 26 men and women convicted in the Rajiv Gandhi assassination case. After a May 1999 appeal, the Supreme Court commuted three of the death sentences to life sentences and released 19 of the defendants on the grounds that they had already served seven years in judicial custody as undertrials. However, the Supreme Court upheld the death sentence against the remaining four: Nalini, Murugan, Santhan and Perarivalan. The stay order by the Supreme Court is only a temporary reprieve; the fate of these four will be determined by the 19 July proceedings.

International standards of human rights call for either the abolition of the death penalty or, at a minimum, its use in only extremely limited cases. In April 1999, the United Nations Commission on Human Rights passed a resolution calling on all States "to establish a moratorium on executions, with a view to completely abolishing the death penalty" (Commission on Human Rights Resolution 1999/61). If the Supreme Court upholds any of the four death sentences, India will be one of the first countries in the world to defy the UN Commission's resolution.

The Commission on Human Rights has also urged States "not to impose the death penalty for any but the most serious crimes" and "progressively to restrict the number of offences for which the death penalty may be imposed". In India, the principle of limiting the death penalty to only heinous crimes is strongly supported by constitutional doctrine. India's higher courts have routinely ruled that the death penalty must be imposed in only "the rarest of rare cases".

Despite these principles, the Government of India has in practice applied the death penalty to a wide range of offences. Under the Indian Penal Code, the death penalty can be imposed for murder; for attempted murder by a person serving life imprisonment if "hurt is caused"; for gang robbery with murder; for abetting the suicide of a child or insane person; for waging war against the government; for abetting mutiny by a member of the armed forces; and for fabricating false evidence with intent to secure the conviction of another person for a capital offence when conviction ensues. Death sentences may also be imposed for a number of offences committed by members of the armed forces under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1956.

In recent years, the list of capital crimes has expanded even further. Special courts established under the Terrorist Affected Areas (Special Courts) Act, 1984 and Terrorist and Disruptive Activities (Prevention) Act, 1987 can impose the death sentence for certain broadly defined "terrorist acts". These special courts follow rules that severely curtail procedural safeguards, such as the onus of proof. The right of appeal is also limited to the Supreme Court only.

In 1987, the Government of India passed the Commission of Sati (Prevention) Act, 1987, which applied the death penalty to individuals convicted of abetting a successful Sati. In May 1988, causing death by use of illegal arms or ammunition was made a capital offence. And, in December 1988, second convictions for drug-trafficking were made punishable by death under the Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 1988.

The expansion of the death penalty is often justified on the basis that it will deter potential criminals. However, such theories of deterrence are without empirical support. The consensus of sociologists and criminological experts have concluded that the death penalty cannot be proven to reduce crime. Statistical studies of India also show that capital punishment does not deter criminal behaviour. According to Amnesty International, for example, 962 murders were registered in the former princely states of Travancore and Cochin (Kerala) between 1945 and 1950, a period in which the death penalty was abolished in both states. However, in the six years after capital punishment had been restored (1951 to 1956), the total number of murders registered was 967. In short, the restoration of the death penalty did not lead to any decrease in the number of murders.

The only method of execution in India is death by hanging, a practice which violates the universally recognised right to be free from torture and other forms of cruel, inhuman and degrading treatment. In August 1983, the then-Attorney-General of India described hanging as the best method of execution based on the theory that the vascular, nervous and respiratory systems are extinguished in a single moment. However, experience shows that hanging can be a brutal and long ordeal. For example, Nathuram Godse, the man convicted of murdering Mahatma Gandhi, was suspended for fifteen minutes from the scaffold before finally dying. Notably, Mahatma Gandhi would have likely opposed his killer's fate: "I cannot in all conscience agree to anyone being sent to the gallows. God alone can take life because he alone gives it".

Like other forms of punishment, application of the death penalty is subject to human fallibility. However, unlike other forms of punishment, the death penalty is irrevocable. These two factors make the outcome intolerable. Former Supreme Court Chief Justice P N Bhagwati wrote: "The possibility of error in judgement cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as [the] death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man". Consider for example the case of Kehar Singh, who was executed for taking part in the assassination of former Prime Minister Indira Gandhi. It is now widely recognised that Kehar Singh's sentence was based on weak, circumstantial evidence. Today, even the judge who passed his sentence questions the accuracy of the judgement.

A further problem with application of the death penalty is that due to the lack of clear guidelines, judges in India have a great deal of discretion in capital cases. As a result, whether a person is hanged for a particular crime depends largely upon the views of the individual judge. In the case of Harbans Singh v. State of Uttar Pradesh and Others [(1982) 2 S.C. Cases 101], three men convicted of playing an equal role in committing a crime each met with a different fate, depending on which Supreme Court bench heard their appeal. While the death sentences of two of them were commuted, the third was executed. Such arbitrary and unequal treatment of equally situated persons violates Article 14 of the Indian Constitution: "The State shall not deny to any person equality before the law or the equal protection of laws within the territory of India".

Admittedly, the Rajiv Gandhi assassination case does not raise all the concerns described above, but it does concern many of them. The case also brings to light a growing disparity between India and the world community. At a time in which the international trend is moving strongly towards the progressive abolition of the death penalty, the Government of India continues to pursue capital punishment without much hesitation. It has become apparent to the vast majority of the world's democratic States that the death penalty cannot be reconciled with liberal values and a commitment to human rights. It is high time that India makes that same recognition and joins the international movement towards abolition of the death penalty.

-Human Rights Features

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