When the Law Commission of India held a public consultation on the death penalty on July 12, the near-unanimity in the hall came as a surprise. The roundtable was packed with former judges, top lawyers, police officers, civil society members and students. Almost everyone was united in their opposition to the capital punishment, including the members of Parliament from the Bharatiya Janata Party, Congress, and Dravida Munnetra Kazhagam. Varun Gandhi, turning out in shining crisp khadi, read out a strongly worded albeit nuanced statement against death penalty. Shashi Tharoor and Kanimozhi also laid out many reasons for the abolition of capital punishment.
Enormous amounts of work had gone into the consultation. Students and teachers from the Delhi National Law University’s Death Penalty Project – who interviewed over 400 death row inmates and their families – had all the information on the hows, whats and whys of death penalty in India.
They had all the information anyone could want, neatly categorised in charts and tables – who are those who we have condemned to the gallows, for what crimes, on what basis, and how have we treated them. Their findings were devastating. Death row convicts were overwhelmingly poor, most were first-time offenders, most were tortured in police stations and convicted on recoveries arising out of confessions (which are inadmissible in court), and most had little by way of legal representation. There was ample evidence from around the world that capital punishment is ineffective.
Also present were lawyers like Yug Chowdhury who have been fighting against capital punishment for decades. They explained the arbitrariness of the sentencing and how the court actually determines which cases qualify as the “rarest of the rare” instances that would invite death. They underscored the failings in the very idea of the death penalty, something that in penal terms is no different from life imprisonment. Besides, there was that other question troubling everybody in the room: if you can kill those who kill, can you rape those who rape?
Presiding over the room was the chairman of the Law Commission, Justice AP Shah, part of the dwindling breed of judges whose reputation for fairness precedes them.
The only jarring exception to the near consensus in the consultation was Dushyant Dave, the chairman of the Supreme Court Bar Association. Dave raised the usual litany of issues that are cited by those advocating the retention of the death penalty: that sends a strong message to the terrorists and deters those who pose a “threat to our bahu betiyan” (a comment that evoked sniggers from the many women in the hall).
The major exception
Going by the tenor of the consultation, it would have been difficult to imagine that the commission, in its final recommendation to the law minister, would dump the “rarest of rare” stipulation, only to replace it with another exception – relating to terror offences.
It is important to point out that to take strategic heed of a perception is one thing, but to buy the argument is another. The commission is categorical that it does not accept the argument. Acutely aware of the “deterrence assumptions” underlying calls for the death penalty to be used for national security purposes, the commission says that these assumptions need to be reassessed to ascertain whether it is “desirous to perhaps retain the death penalty for terrorism related crimes”.
Indeed, the Law Commission is concerned that giving terrorists the death penalty might increase terror attacks. Quoting Jessica Stern, an expert on terrorism, it noted the dangers of turning criminals into martyrs, inviting further retaliatory strikes, and giving enormous publicity and fund-raising opportunities to “our enemies”:
Collective conscience
The effectiveness of the death penalty as a penological response to crimes against the state is fairly contentious territory. Executing terrorists is a political and electoral decision. India's last four executions – Dhananjoy Chatterjee, Ajmal Kasab, Afzal Guru and Yakub Menon – demonstrate that capital punishment is associated with executive attempts to selectively quell “public outrage”. This outrage, ironically, is itself a product of the criminal justice system’s failure to bring perpetrators to book.
The commission’s report takes note of this outrage and “collective conscience”. It does not, however, believe in the idea. Pointing out that capital punishment tends to become a media spectacle, it says that “a cohesive, coherent and consistent ‘public opinion’ is a fiction. The opinion of members of the public can be capricious, and dependent upon the (mis)information that the ‘public’ is provided not only of the facts of an individual case, but of the criminal justice process itself”. In such a situation, it argues, invoking public opinion “would defeat the entire framework” as laid down by constitutional and judicial processes.
Pressures within
Insofar as the detailed appraisal it does of the many issues of capital punishment and Indian criminal justice system, the new report is an excellent document. It is a huge step forward from the 1967 Law Commission report, which recommended retention of death penalty. There is no mistaking what the current Law Commission actually wants: absolute abolition that is “swift” and “irreversible”.
The problem in its recommendation is apparent. All the reasons that apply for not administering the death penalty in ordinary crimes equally apply to terror-related offences too. The nature of the crime has little to do with why people should be put to death as a penological response. The commission is aware of this. Its recommendation is a first step, possibly a result of the many pressures it faced.
The law commission is a nine-member body, of whom three are permanent members. One of the permanent members, Justice (retd) Usha Mehra, as well as the two ex-officio members – Law Secretary PK Malhotra and Legislative Secretary Sanjay Singh – supported the retention of the death penalty and submitted dissenting notes to the report.
Expanding definition of terror
In today’s world, terrorism has become the primary exception. Over the last three decades, the definition of terrorism has been constantly expanded in special terrorism laws. The Terrorist and Disruptive Activities (Prevention) Act, or TADA, saw terrorism as an “intent to overawe the government of India” along with the idea of disruption. The Prevention of Terrorism Act of 2002, or POTA, replaced this with a much more general “intent to threaten the unity, integrity, security, or sovereignty of India”.
In 2004, most of POTA’s provisions were carried forward into the Unlawful Activities Prevention Act Amendment. Now, the Gujarat legislative assembly wants a law that collapses all distinction between crime and terrorism, and even goes against fundamental rights guaranteed by the Constitution by defining “terrorist act” as an “intention to disturb law and order, or public order, or to threaten the unity, integrity”.
If the new dispensation is to be believed, dissent is the new terror. The terror exception to capital punishment could have terrible consequences.
Sharib Ali coordinates research at the non-profit Quill Foundation. He can be reached at sharibali@quillfoundation.com.
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Enormous amounts of work had gone into the consultation. Students and teachers from the Delhi National Law University’s Death Penalty Project – who interviewed over 400 death row inmates and their families – had all the information on the hows, whats and whys of death penalty in India.
They had all the information anyone could want, neatly categorised in charts and tables – who are those who we have condemned to the gallows, for what crimes, on what basis, and how have we treated them. Their findings were devastating. Death row convicts were overwhelmingly poor, most were first-time offenders, most were tortured in police stations and convicted on recoveries arising out of confessions (which are inadmissible in court), and most had little by way of legal representation. There was ample evidence from around the world that capital punishment is ineffective.
Also present were lawyers like Yug Chowdhury who have been fighting against capital punishment for decades. They explained the arbitrariness of the sentencing and how the court actually determines which cases qualify as the “rarest of the rare” instances that would invite death. They underscored the failings in the very idea of the death penalty, something that in penal terms is no different from life imprisonment. Besides, there was that other question troubling everybody in the room: if you can kill those who kill, can you rape those who rape?
Presiding over the room was the chairman of the Law Commission, Justice AP Shah, part of the dwindling breed of judges whose reputation for fairness precedes them.
The only jarring exception to the near consensus in the consultation was Dushyant Dave, the chairman of the Supreme Court Bar Association. Dave raised the usual litany of issues that are cited by those advocating the retention of the death penalty: that sends a strong message to the terrorists and deters those who pose a “threat to our bahu betiyan” (a comment that evoked sniggers from the many women in the hall).
The major exception
Going by the tenor of the consultation, it would have been difficult to imagine that the commission, in its final recommendation to the law minister, would dump the “rarest of rare” stipulation, only to replace it with another exception – relating to terror offences.
“Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.”
It is important to point out that to take strategic heed of a perception is one thing, but to buy the argument is another. The commission is categorical that it does not accept the argument. Acutely aware of the “deterrence assumptions” underlying calls for the death penalty to be used for national security purposes, the commission says that these assumptions need to be reassessed to ascertain whether it is “desirous to perhaps retain the death penalty for terrorism related crimes”.
Indeed, the Law Commission is concerned that giving terrorists the death penalty might increase terror attacks. Quoting Jessica Stern, an expert on terrorism, it noted the dangers of turning criminals into martyrs, inviting further retaliatory strikes, and giving enormous publicity and fund-raising opportunities to “our enemies”:
“One can argue about the effectiveness of the death penalty generally. But when it comes to terrorism, national security concerns should be paramount. The execution of terrorists, especially minor operatives, has effects that go beyond retribution or justice. The executions play right into the hands of our adversaries.”
Collective conscience
The effectiveness of the death penalty as a penological response to crimes against the state is fairly contentious territory. Executing terrorists is a political and electoral decision. India's last four executions – Dhananjoy Chatterjee, Ajmal Kasab, Afzal Guru and Yakub Menon – demonstrate that capital punishment is associated with executive attempts to selectively quell “public outrage”. This outrage, ironically, is itself a product of the criminal justice system’s failure to bring perpetrators to book.
The commission’s report takes note of this outrage and “collective conscience”. It does not, however, believe in the idea. Pointing out that capital punishment tends to become a media spectacle, it says that “a cohesive, coherent and consistent ‘public opinion’ is a fiction. The opinion of members of the public can be capricious, and dependent upon the (mis)information that the ‘public’ is provided not only of the facts of an individual case, but of the criminal justice process itself”. In such a situation, it argues, invoking public opinion “would defeat the entire framework” as laid down by constitutional and judicial processes.
Pressures within
Insofar as the detailed appraisal it does of the many issues of capital punishment and Indian criminal justice system, the new report is an excellent document. It is a huge step forward from the 1967 Law Commission report, which recommended retention of death penalty. There is no mistaking what the current Law Commission actually wants: absolute abolition that is “swift” and “irreversible”.
The problem in its recommendation is apparent. All the reasons that apply for not administering the death penalty in ordinary crimes equally apply to terror-related offences too. The nature of the crime has little to do with why people should be put to death as a penological response. The commission is aware of this. Its recommendation is a first step, possibly a result of the many pressures it faced.
The law commission is a nine-member body, of whom three are permanent members. One of the permanent members, Justice (retd) Usha Mehra, as well as the two ex-officio members – Law Secretary PK Malhotra and Legislative Secretary Sanjay Singh – supported the retention of the death penalty and submitted dissenting notes to the report.
Expanding definition of terror
In today’s world, terrorism has become the primary exception. Over the last three decades, the definition of terrorism has been constantly expanded in special terrorism laws. The Terrorist and Disruptive Activities (Prevention) Act, or TADA, saw terrorism as an “intent to overawe the government of India” along with the idea of disruption. The Prevention of Terrorism Act of 2002, or POTA, replaced this with a much more general “intent to threaten the unity, integrity, security, or sovereignty of India”.
In 2004, most of POTA’s provisions were carried forward into the Unlawful Activities Prevention Act Amendment. Now, the Gujarat legislative assembly wants a law that collapses all distinction between crime and terrorism, and even goes against fundamental rights guaranteed by the Constitution by defining “terrorist act” as an “intention to disturb law and order, or public order, or to threaten the unity, integrity”.
If the new dispensation is to be believed, dissent is the new terror. The terror exception to capital punishment could have terrible consequences.
Sharib Ali coordinates research at the non-profit Quill Foundation. He can be reached at sharibali@quillfoundation.com.