While a majority of countries globally have abolished the death penalty in law or practice, at least two laws have come into force in India in the last two months that expand the scope of the death penalty.
The Bihar Excise (Amendment) Act, 2016, passed in March, says that mixing poisonous substances with liquor can be punishable by death, in cases where death is caused. Then, the Anti-Hijacking Act 2016, which was notified by Parliament in May, allows for capital punishment in cases of hijacking that have resulted in the deaths of hostages, security personnel or any person not involved in the offence.
This is in sharp contrast to the position taken by the Law Commission of India in August last year. In a report, the commission said that the time had come for India to move towards abolishing the death penalty. The commission recommended doing away with capital punishment immediately for all crimes “other than terrorism-related offences and waging war,” in the hope that the “movement towards absolute abolition [would] be swift and irreversible”.
Intent to kill not required
Apart from widening the ambit of the death penalty, the recent laws are also problematic because they do not require the accused to have lethal intent, that is, the intent to cause death, while committing the crime, in order to attract capital punishment.
Several preexisting Indian laws also prescribe the death penalty as a possible punishment for acts that do not involve intentional killing.
Some don’t even require a death to have occurred for the imposition of the death penalty.
For example, Section 364 (A) of the Indian Penal Code states that the death sentence can be imposed in cases of kidnapping for ransom, if amongst other things, the person kidnapped or abducted is threatened with death or hurt, or there is reasonable apprehension that this can happen.
Departure from international stance
The expansion of the death penalty through the recent laws is inconsistent with India’s international obligations. According to the International Covenant on Civil and Political Rights, which India acceded to in 1979, countries that retain the death penalty may impose it only for “the most serious crimes”. India’s Supreme Court affirmed this standard in the Bacchan Singh vs State of Punjab judgment of 1980, where it also held that the death penalty should not be imposed “save in the rarest of rare cases when the alternative option is unquestionably foreclosed”.
United Nations’ agencies and experts have clarified the scope of what constitutes “most serious crimes”.
For example, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions had said that the imposition of the death penalty must comply with the "most serious crimes" restriction and “can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life.”
A 2014 report of the UN Secretary General further confirmed that in international human rights jurisprudence, the term “most serious crimes” has been interpreted as “allowing the death penalty to be applied only to the crime of murder or intentional killing”, and concluded that, "Until it is fully abolished, retentionist states must ensure that the death penalty is imposed only for those crimes that involve intentional killing".
A systemic problem
While there have been only four executions in the past 16 years – 1993 Mumbai blasts convict Yakub Memon’s hanging in July last year was the latest – the death penalty continues to be regularly used in India. According to the National Crime Records Bureau, 1,303 death sentences were handed out in India between 2004 and 2013, and 95 people were sentenced to death in 2014.
The larger systemic and institutional problems with the application of the death penalty in India have been rigorously documented.
A 2008 report by Amnesty International India and the People’s Union for Civil Liberties (Tamil and Puducherry) said that the imposition of the death penalty in India was effectively a “lethal lottery” because of the arbitrariness inherent in the decision of whether to impose the death sentence in any particular case. The recently released report by National Law University’s Delhi’s Death Penalty Project observed that the death penalty in India is disproportionately imposed on prisoners from socio-economically marginalised groups. The report also outlined fair-trial violations in many cases where individuals were sentenced to death.
The Indian Law Commission cited the “extreme agony” faced by convicts on death row – compounded by degrading and oppressive prison conditions – as one of the reasons to move away from the death penalty.
These reports strengthen the case for the abolition of the death penalty in India in all circumstances and for all offences. Its brutal nature along with arbitrary and seemingly discriminatory manner in which it is applied violate the right to life and the prohibition against cruel, inhuman, and degrading punishment.
As of 2015, 140 countries in the world had abolished the death penalty in law or practice. Instead of keeping with this trend, India is expanding the scope of capital punishment in a manner that is not only inconsistent with international practices but also its own Constitutional values.