The proposed Bharatiya Nyaya Sanhita (BNS) Bill, 2023 that seeks to replace the British-era Indian Penal Code has increased the number of crimes which can attract the death penalty from 11 to 15, according to a parliamentary panel report published last week.
According to the panel’s report, the domain experts consulted by the committee “deliberated at great length about the need to abolish death penalty”.
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India has in the past voted against a United Nations General Assembly’s draft resolution on the abolition of the death penalty.
According to a study conducted by the National Law University Delhi — the Annual Statistics Report 2022, published by Project 39A — till December 31, 2022, as many as 539 prisoners were on death row in India, the highest since at least 2016.
The parliamentary panel headed by Bharatiya Janata Party (BJP) member Brij Lal recommended that the matter be left for the Government to consider.
“The Committee after considering the submissions regarding the death penalty has understood that the reason for a passionate argument against death penalty is that the judicial system can be fallible and to prevent an innocent person from being wrongly sentenced to death,” it said.
Three Opposition members — Congress’s P. Chidambaram and Digvijaya Singh and Trinamool Congress’s Derek O’Brien — submitted dissent notes against the provision.
Mr. Singh said that while the Government has hailed the Bills as a move towards shedding the colonial nature of criminal laws, the Bills still retain the colonial spirit of the current laws and punishments for some offences have been made harsher and the death penalty has been added for at least four new crimes such as mob lynching, organised crime, terrorism and rape of a minor.
Mr. Chidambaram, former Home Minister submitted, “According to the data, the Supreme Court has affirmed the death penalty in only 7 cases in the last 6 years. While the imposition of the penalty itself causes distress and trauma, the wait before the sentence is set aside or confirmed causes distress many times more. It has been established that death penalty is no deterrent to serious crime. An imprisonment for the remainder of natural life without parole is, in fact, a more rigorous punishment and also opens a window of opportunity for the convict to reform.”
The TMC leader said that based on national statistics, it can be observed that 74.1% of individuals on death row in India come from economically disadvantaged backgrounds.
The domain experts submitted before the Committee that the “rarest of rare case” doctrine should be defined in more objective terms, if the death penalty has to be retained.
On the lines of ‘Sentencing Councils’ in the United Kingdom, guidelines should be formulated on the role of the Sessions Courts and High Courts in cases where evidence is apparent but defence is ill-equipped should be articulated, as per the principles laid down by the Supreme Court; the provisions for mistrial should be inserted to cover instances where media influences outcomes, legal aid counsel fail to provide adequate defence, court does not act impartially or counsel refuse to represent accused — especially in cases involving religious or caste prejudice.
The experts opined that the quasi-judicial boards should be made to exercise probation, commutation and remission to provide greater scope for victims to have a say; and timelines should be indicated for mercy petitions to be heard and disposed.
The three new criminal codes — Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 and Bharatiya Sakshya (BS) Bill, 2023 — will replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1898, and the Indian Evidence Act, 1872 respectively. The Bills were introduced on August 11 in Parliament and were sent to the parliamentary standing committee on Home Affairs for examination.