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Let's dismantle the gallows forever-Rajindar Sachar

India has persisted in retaining the death penalty, notwithstanding the fact that 139 countries across the world have already abolished it while 150 others have put a moratorium on it. The United Nations passed a resolution on September 20, 2010, appealing to all nations to observe a moratorium on the death penalty if they are not agreeable to passing a legislation abolishing it.

That formidable opposition to the death penalty seemed to have developed a chink of late, if we were to go by the case of Balwant Singh Rajoana, who’s been awarded the death penalty for the assassination of Punjab chief minister Beant Singh in 1995. He neither contested his conviction nor did he file a mercy petition before the president for commutation of his sentence. The high court confirmed his death sentence in 2007.

The Shiromani Akali Dal (SAD) gover-nment didn’t take any interest in this case nor was this an issue in the recently-held assembly elections in Punjab. But the jathedars of the holy Akal Takht chose to give a hukumnama to chief minister Parkash Singh Badal to commute the sentence of Rajoana. It’s become a minefield Newspaper reports indicate that Rajoana made it clear that he was not asking for mercy and wanted to be hanged. Because of obvious political compulsions, Badal met President Pratibha Patil, asking for clemency. The execution has been stayed for the time being. A public interest petition filed in the Supreme Court seeking mercy for Rajoana was dismissed as not maintainable. 

As one who has always argued in favour of the abolition of the death penalty, it’s the convoluted course of action adopted by the Badal government instead of the straight-forward constitutional one that I find surprising. An official SAD statement stated that it was against the death penalty “as it’s the ultimate denial of human rights and violates the right to life”. If it’s indeed so, the Punjab government should have passed a law in the state legislature amending the Indian Penal Code (IPC) and providing that the death penalty be converted to life imprisonment. The first entry in the Concurrent List, which lists subjects where both the Centre and states can frame laws, refers to criminal law, including all matters included in the IPC at the commencement of the Constitution.

Of course, if the Punjab government were to amend the IPC to provide only life imprisonment, it may prima facie run counter to the IPC itself. Article 254 of the Constitution provides a remedy for such a situation — the state law may be reserved for the consideration of the president and if it receives her consent it will prevail in that state. Such a course of action would have served the purpose of preventing Rajoana’s hanging while setting a healthy precedent for abolishing the death penalty for the rest of the country.

That the states, under our Constitution, can have differing views on the death penalty is not in doubt. The situation is the opposite in the United States. While the death sentence has been upheld as a constitutionally valid punishment at the federal level, 13 states and the District of Columbia have prohibited and banned it.

The vociferous opposition to the abolition of the death penalty springs from the myth that it encourages murders. Facts show otherwise. In 1945-50, the state of Travancore, which had no death penalty, witnessed 962 murders, whereas during 1950-55, after the death sentence was introduced, there were 967 murders.

Canada, which abolished the death penalty in 1976, has also seen its rate of homicide decline. In 2000, there were 542 homicides in Canada — 16 less than in 1998 and 159 less than in 1975 (the year prior to the abolition of capital punishment). A 1988 UN survey concluded that research has failed to provide evidence that executions are a greater deterrent than life imprisonment.

There is a wealth of moral and legal arguments about the abolition of the death penalty. If the Punjab government brings in the necessary amendment, then it will disprove the allegation that the act of appealing to the president was a political gimmick and not governed by any larger consideration of human rights.

(Rajindar Sachar is a civil rights activist and the former Chief Justice of Delhi)

The views expressed by the author are personal