Kaoru Kobayashi, a local newspaper deliveryman, who assaulted and murdered a seven-year-old girl in 2004 in the Japanese city of Nara, was hanged this February. Two other death row inmates have been hanged in the two months since Shinzo Abe became the Prime Minister of Japan for the second time. Forty-three death row criminals were executed in the US in 2012. The latest of these was Manuel Prado, a neo-Nazi and self-styled vigilante who killed nine people. In 2012, around the world, convicted persons were put to death by firing squad, lethal injection, electric chair, hanging and beheading for crimes ranging from murder to terrorism to crimes against humanity.
No reliable statistics are available for China, but it is widely believed to put thousands of people to death each year.
At the same time, according to Amnesty International, only 21 out of 198 countries carried out executions in 2011. Each year one or two countries join the so-called abolitionists—those where the death penalty has been abolished for all crimes.
Waning public support for the death penalty has resulted in fewer death row convictions in the US in recent years. In the last 35 years, the number of abolitionist countries has risen from 16 to 96. These include all of European Union, the UK and Australia.
India, as widely reported, has executed four people since 1995: the two most recent being Ajmal Kasab and Afzal Guru for terrorism. India’s historical journey with the death penalty has strangely been less angst ridden than that of many countries. Indian law allows the death sentence for murder, gang robbery with murder, mutiny by a member of the armed forces and abetting the suicide of a child. Large-scale narcotics trafficking and terrorism have been added to this original list as capital crimes in recent years. There is no government corroboration of the fact, revealed in a report, that over 1,000 people were executed in a single decade after independence (Report 35 of the Fourth Law Commission of India, 1967). Indian law seems to have muddled along, first permitting a large number of executions and then correcting course with a Supreme Court directive in 1983 to apply the death penalty only in the rarest-of-rare cases.
Until the recent gang rape murder crime in New Delhi that awakened a large group of the middle-class, there has been no real intersection of society with criminal law principle for over 30 years. There are few domestic volunteer organizations that speak either for or against the death penalty. Justifiably, during the recent debate the hotly discussed topic has been the status of women in society. Much less attention has been focused on the merits of the death penalty itself. The justice J.S. Verma committee was constituted in December to recommend amendments to criminal law to ensure quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The panel’s report was presented in January. While punishments in general were enhanced, it opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrent to serious crimes. It recommended life imprisonment for rape. Despite this report, the government of India has issued an ordinance called the Criminal Law (Amendment) Ordinance, 2013, that includes the death penalty for (rare) cases of assault and murder, particularly those from repeat offenders. (see www.prsindia.org for a summary).
The pros and cons of the death penalty are well known and have been debated by societies for centuries. The idea of abolitionism has grown considerably in recent years. The newly constituted 20th Law Commission under justice D.K. Jain should consider again the issue of capital punishment in India, update the facts and contemporize law. While the recent ordinance is a retrograde step that precludes full debate, I believe India has got it generally right with respect to the death penalty. It is not abolitionist in the strictest sense, but reserves the right to apply the death penalty for heinous crimes against individual or the state. Where it can make improvements in both legal and practical terms is to define rarest-of-rare better, restrict the scope of this sentence to fewer crimes, eliminate mandatory clauses and use the privilege, well, rarely. In addition to better justice, this will improve conviction rates, cost and time of trial, and expenses incurred by the state after conviction. The multiple stages of appeal and redress—including possible clemency from the President—provide opportunity for those death row inmates who believe they have been convicted wrongly.
Where do you stand?
PS: “Arise, awake and stop not till the execution is annihilated,” said retired judge V.R. Krishna Iyer. “The measure of punishment in a given case must depend on the atrocity of the crime,” said Supreme Court justices A.S. Anand and N.P. Singh on the Dhananjoy Chatterjee case.
Narayan Ramachandran is an investor and entrepreneur based in Bangalore. He writes on the interaction between society, government and markets. Comments are welcome at email@example.com
To read Narayan Ramachandran’s previous columns, go to www.livemint.com/avisiblehand