By Abhishek Jha:
On 13th July this year, PUDR, a Delhi based civil rights group published a report that questioned the 2004 hanging of Dhananjoy Chatterjee. They were drawing on a research paper published by two scholars of Indian Statistical Institute (Kolkata), which found glaring holes in the police investigation and trial of the accused, to argue for complete abolition of death penalty. About two weeks after the report was published Yakub Memon was hanged with the nation yet divided on capital punishment.
Even when Yakub Memon’s petitions were being heard, the Law Commission of India was preparing a report on death penalty. The report was turned in this Monday, 31st August, to Minister for Law and Justice, Sadananda Gowda. The commission had recommended that death penalty be abolished for “all crimes other than terrorism related offences and waging war” and trusted that the report “will contribute to a more rational, principled and informed debate on the abolition of the death penalty for all crimes.” “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,” the commission observed in its recommendations. However, three members of the commission did not sign the report and instead submitted dissent notes to the chairman of the commission, Justice A P Shah, arguing for retention of death penalty. Two of these three members were representing the Ministry of Law and Justice.
On Proportionality
The commission’s report, extending over two hundred pages, discusses in great detail the arguments for and against capital punishment on the lines of its history, the prevailing international trends, its penological justifications, etc. to arrive at the conclusion. Discussing proportionality, for instance, the report says that not only does death penalty undermine “the communicative aspect of the punishment“, with respect to the offender, but also fails to communicate censure of grave crimes to the society. “When killings are carried out by a state, it undermines the communicative aspect by justifying what it seeks to condemn. It also devalues life in the eyes of the common person which further empowers offenders,” the report says.
On Deterrence and Terrorism
Rebutting the opinion that death penalty acts as a better deterrent than life imprisonment, the report cites a research, by Donohue and Wolfers, to say that “the movement in homicide rates of all the death penalty and non-death penalty states within the United States (between 1960 and 2000) was also found to be virtually the same“. Elaborating on the fallacies in the argument for death penalty acting as a deterrent, the report further says that the offenders do not study the law to look up the penalty that they might suffer and that “a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or are motivated out of strong emotions such as revenge or paranoia. In circumstances such as these, deterrence is unlikely to operate since the actor is not likely to give due weight, or even a cursory consideration to what penalties might be imposed on him/her subsequently; the focus being on the emotion driving his/her state of mind.” Thus, it concludes that the existence of a criminal justice system to punish criminal conduct “is by itself a deterrent“. In terrorism related cases, the commission in its report, cited instances from various cases which prove that capital punishment often makes the offenders martyrs “whose death would inspire, and not deter potential followers.”
The Way Forward
In its six point recommendation, the report asks for police reforms, witness protection scheme, and victim compensation scheme to be “taken up expeditiously by the government” and that “focusing on the death penalty as the ultimate measure of justice to the victims” makes us lose sight of the restorative and rehabilitative aspects of justice.
Justice A P Shah said that the report was prepared to enable a debate on the subject of capital punishment, when it is taken up in the parliament, when two private members’ bill pertaining to it are moved. With each case of hanging in the past few years, we have seen a growing sentiment in the country towards the abolition of the death penalty. The report deals with each aspect of death penalty, including retribution, and it would be helpful if it was used in the debate. It has already highlighted what could be a rational boundary of Article 21 of the constitution. With more and more countries moving away from the death penalty, its abolition would be a great movement forward for the constitution of the country.