As India continues to stand in favour of the death penalty, it is increasingly finding itself in the margins of world politics and international standards on this issue. On a UN General Assembly resolution to establish a moratorium on death penalty, a vast majority of the countries have voted in favour of abolishing the penalty. Although the resolution does not have binding value, it does carry considerable moral and political weight. Amnesty International reported that 114 of the UN’s 193 member-states voted in favour of the resolution and 36 voted against it, while 34 abstained. Around 140 countries worldwide have abolished the death penalty in law or practice, and the International Covenant on Civil and Political Rights is strongly against it. The International Criminal Court envisages life imprisonment even for crimes against humanity such as genocide. Customary international law does not prohibit the death penalty currently, but global opinion is rapidly moving towards an abolition.
Given this global trend, India gave the following reasons for its retentionist position: (a) the sovereign right to determine its own laws; (b) the death penalty is exercised in the “rarest of rare” cases; and (c) India guarantees ‘rule of law’ and the necessary procedural safeguards for a fair trial. But this justification is grossly inadequate. Abolition is now firmly entrenched in the human rights discourse and no longer limited to national criminal justice policy, making the ‘sovereignty defence’ much weaker. As far as the “rarest of rare” jurisprudence is concerned, the Supreme Court in Sangeeth (2013) agrees that this principle laid down in Bachan Singh (1980) has received erroneous and inconsistent interpretations in most judgments since Machhi Singh (1983). The court concedes that the test has become arbitrary and judge-centric rather than principle-centric. In an interview to Frontline , Justice A.P. Shah said: “Clearly, the two prisoners in Ravji ’s case who were wrongly sentenced to death were executed as a result of these flawed judgments, constituting the gravest known miscarriages of justice...” As far as the ‘due process of law’ is concerned, the stealthy killings of Ajmal Kasab and Afzal Guru, as well as the undue delay in handling mercy petitions, deftly spelt out in Shatrughan Chauhan (2014), reflect flawed executive action that cannot always be corrected by judicial intervention. Even if public opinion in India currently favours the death penalty, the move towards a more enlightened approach can be initiated in Parliament. As India endeavours to play a stronger role in world politics, it is time to rethink its stand on the death penalty with more clarity.
Corrections and Clarifications
This article has been edited for a factual error