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Death Penalty

Knot to be?

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CAPITAL LOSS: Nathuram Godse, Gandhi's assassin, was one of India's most high-profile executions

The execution of Ajmal Kasab, right after India voted against a UN resolution to ban the death penalty, might suggest that capital punishment is here to stay. But a look over the past eight decades shows that the debate on the issue has in fact come a long way. Hundreds were executed every year in British India, while executions are quite rare now - an indicator that the death penalty sits uncomfortably in contemporary India.

In fact long before capital punishment became a global concern, the Indian National Congress had called for its abolition, in 1931. Although congressmen like Gaya Prasad Singh had made similar calls earlier, in legislative bodies, it was the hanging of Bhagat Singh, Rajguru and Sukhdev that prompted the rejection of capital punishment in the INC's Fundamental Rights resolution. Yet, despite leaders like Mahatma Gandhi and Jawaharlal Nehru being vehemently opposed to the death penalty, interest in abolition dwindled when the first Congress-led ministries appeared in 1937. With transfer of power, the change of heart was also confirmed. Vallabhai Patel, home minister in Nehru's Interim Government of 1946, summarily rejected any abolition. Nehru, too, subsequently revealed his doubts, stating that while he agreed with abolition 'in theory';it would be difficult in practice.

The first proposal in the Constituent Assembly to abolish capital punishment was moved in February 1948 by Rohini Kumar Chaudhari, although the first debate took place in November 1948 when Muslim League leader Z H Lari moved an abolition amendment. The proposal was easily defeated in a vote after the law minister B R Ambedkar rejected it on behalf of the government. In a subsequent debate, Ambedkar voiced his personal view that, "the proper thing for this country to do is to abolish the death sentence altogether. " Despite many others arguing repeatedly for abolition, the Constitution of India did not abolish capital punishment. This is perhaps unsurprising given both the turbulence in the country and the assassination of Mahatma Gandhi, which left little room for such debate.

The issue was next debated in the Lok Sabha only in 1956, led by Congressman Mukund Lal Agrawal. Two years later, the Rajya Sabha debated capital punishment, with a resolution moved by actor-parliamentarian, Prithvi Raj Kapoor. A third discussion in the Rajya Sabha in 1961 had an even stronger Bollywood connection - the home ministry claimed it was inspired by the 1960 courtroom drama Kanoon. With many parliamentarians continuing to oppose the death penalty, the issue of abolition came up again in 1962. This time the Government agreed to forward the proceedings to the Law Commission.

The failed efforts of the abolitionist-parliamentarians had nonetheless set into motion a series of events that began the decline of capital punishment. Chaudhari's efforts appear to have influenced President Rajendra Prasad who further pressed the issue with home minister KN Katju in 1954. While a 1955 amendment did not go so far as to abolish capital punishment, it amended the law so that the death penalty was no longer the ordinary penalty for murder.

The Law Commission's 35th report in 1967 went further. Recommending retention of the death penalty, it stated that this should be an exceptional punishment - a proposal eventually incorporated in the new 1973 criminal procedure code. In two decades, the death penalty had gone from being the default punishment for murder to being an exceptional one - requiring judges to provide 'special reasons' when awarding it.
With the Law Commission report ending parliamentary efforts at abolition, the battle now moved to the courtroom. Although the first constitutional challenge to the death penalty failed in 1973, a series of judgments by Supreme Court judges led by Krishna Iyer further restricted its scope. A second constitutional challenge in 1980 led to the landmark Bachan Singh judgment, where the Supreme Court concluded that while the death penalty was constitutional, it should not be awarded other than in "the rarest of rare cases".

The changes had a direct impact on the practice of the death penalty in India. The number of executions dropped dramatically from the mid 1960s onwards. Of the over 3200 persons who appear to have been executed since in dependence, nearly 80 per cent were executed between 1948 and 1964.

Significantly, executions in India have also kept dropping. In the mid 1970s, the average was about a dozen per year. By the 1980s, executions had further reduced to about 4 per year, before virtually coming to a halt in mid-1997. Kasab's was only the second execution in India in about 15 years.

Little serious debate on abolition of capital punishment has taken place in Parliament in the past four decades. While some political leaders, including Indira Gandhi, voiced their personal opposition against the death penalty, no government has taken a firm stance against it.

Despite Kasab's execution and the possibility that a few prisoners might follow him to the gallows, a return to regular executions appears unlikely. The murder rate has declined over the past 15 years;the Supreme Court's 'rarest of the rare' principle has been repeatedly criticised;and the mandatory death penalty is almost history. The secretive manner of Kasab's execution also suggests some discomfort within the government over the issue. Discussing abolition in the same week as a widely-celebrated hanging appears foolhardy, but the direction of the death penalty over the past six decades leaves little doubt that capital punishment in India is slowly but surely headed towards extinction.


The writer is a 'New India fellow', researching the death penalty in India

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