It appears that motivation for retention of death penalty lies not in its utility as a deterrent but as a safety valve for the stirring public sentiments.
The Criminal Law (Amendment) Ordinance, 2018, inserting Section 376AB in the Indian Penal Code, 1908 making possible the sentence of death for the crime of rape of a child under 12 years is barely an exercise in legislative or executive wisdom. Those in the political camp of Prime Minister Narendra Modi seem to portray the quickness with which the ordinance was rolled out as a fitting response to the allegations of ‘silence’ on his part in the face of crimes in Kathua and Unnao. This palpable, deliberate sense of haste, however, is a part of the problem, not its solution. It is unclear that even a political opinion with sufficient ideological clarity has been formulated so far as the approach of the ruling dispensation to death penalty goes. Only 10 weeks ago did the Centre argue before the Supreme Court that ‘death penalty is not an answer to everything’ - to quote Additional Solicitor General PS Narasimha - in response to a public interest litigation seeking death penalty as a punishment for sexual assault on children (‘Govt. not for noose for child rapists, abusers and paedophiles’, The Hindu, February 1, 2018). In the weeks that followed, what has changed is this: charges of a clear pattern of attacks against minorities and women in India and of an equally distinctive pattern of systemic inaction in response to these attacks have found voice. They were most recently, notably and moderately framed by the editorial board of the New York Times (‘Modi’s long silence as women in India are attacked’, The New York Times, April 16, 2018). The world has now heard, as it were, the silence.
Quite apart from whether the ordinance answers these charges, it begs a number of questions. It raises the legitimate concern that the government neither had the time nor inclination to consider the appropriateness of death penalty from perspectives of law, jurisprudence or human rights. It would appear, each time the demand for imposition of death penalty gains momentum, a set of questions gets asked and at times gets answered authentically, with no bearing howsoever on the legislative policy of the government: where does the jurisprudential and constitutional legitimacy of death penalty lie? Do India’s obligations under international law justify its introduction as punishment for a non-homicidal offence?
One might recall that the report of the Committee on Amendments to Criminal Law, chaired by Justice JS Verma dated January 23, 2013 (‘Justice Verma Committee report’) did consider the question of imposition of death penalty as punishment for rape, including that of a child under 12 years of age. It categorically declined to recommend death penalty for the offence of rape. Viewing the circumstances where the victim is dead or is left in a permanent vegetative state by the offender’s actions a feature warranting enhanced punishment, the committee recommended that the offence of “rape followed by death or resulting in a Persistent Vegetative State” be separately dealt with. Differing with the committee’s recommendation, the Parliament made this offence punishable with death under Section 376A.
Surely, the 167th report of the Department-Related Parliamentary Standing Committee on Home Affairs on the Criminal Law (Amendment) Bill, 2012 tabled before the Rajya Sabha in March 2013 took Justice Verma Committee report into account. However, the committee felt that the abolition of the death penalty was not a feat within its province. It was driven to this escape exit by provisions that already existed in other statutes providing death penalty for non-homicidal crimes. It must leave us wary that the present government did not have the opportunity to hold any discourse, even at a level as cursory as that, on the need and legitimacy of death as a punishment. In framing its knee-jerk response, it did not take into account the report titled ‘The Death Penalty’, authored by the Law Commission of India (the 262nd report), which considered the death penalty in the context of children and recommended its abolition, except in cases of terrorism and waging war.
The Justice Verma Committee report extensively referred to the decision of the United States Supreme Court in Kennedy v. Louisiana, which was specifically on the constitutionality of the statute that provides for death penalty, if the district attorney pleads for it, in the event a person is convicted of the rape of a child below 12 years of age. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, which is judicially interpreted to be “defined by the evolving standards of decency that mark the progress of a maturing society”. A sharply divided Court (5:4) in Kennedy held the provision to be constitutionally invalid. The majority opined that constitutional standards meant that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.
It also pointed at an array of factors to bolster its argument that death is not a punishment proportionate to the crime of rape even of a child: the moral choice forced on the child, the special risk of execution, possible risk on the chances of survival of the victim and the documented failure of death sentence as a deterrent etc. The dissenting opinion, more pertinently here, stated these were factors that must weigh with the legislature, not the court which is only called upon to examine the constitutional validity of the statue which is presumed to be valid. Naturally, in the present instance, one expected that the government to do its job of weighing these factors: an expectation defied by an ordinance that was promulgated overnight.
It does seem that motivation for retention of death penalty lies not in its utility as a deterrent but as a safety valve for the stirring public sentiments.
Public outcry and its deafening silence on the systemic causes of crime
Did the outcry for death penalty in the aftermath of Unnao, Kathua or even Nirbhaya rapes help formulate the public opinion on the systemic causes of crime? When the government responds to a call for action against rising rates of crimes against women with an ordinance that permits heightened punishment, what remains hidden and unaddressed are exactly those. The accused is now alone in the dock: the society that has permitted a culture of violence against women to thrive with impunity, a society that frowns at legislations meant to empower women for fear of their being misused, remains reassured of its grandeur, for all its complicity and acts of collective apologia.
In SKS Bariyar v. State of Maharashtra, the Supreme Court stated in no uncertain terms that the public outcry cannot be taken into account by the court in sentencing, due to the inherent disparities and asymmetries in its formation. The Supreme Court boldly asserted that the judiciary, in some sense, will have to act as a counter-majoritarian force. UN Human Rights High Commissioner Navi Pillay’s statement is significant: “Popular support for the death penalty today does not mean that it will still be there tomorrow. There are undisputed historical precedents where laws, policies and practices that were inconsistent with human rights standards had the support of a majority of the people, but were proven wrong and eventually abolished or banned.”
It appears that the legislature has a luxury that courts do not (in theory) have: to be led and guided by public outcry and popular sentiment. What troubles one is that these are the only factors that have gone into law-making, lulling those in position of power into a sense of gratification of having done everything they can.
While hearing the public interest litigation seeking the death penalty for child rapists, the Supreme Court referred to its own judgment in the Supreme Court Women Lawyers Association (SCWLA) v. Union of India and Another  to reiterate the “obligation of the law and law-makers to cultivate respect for the children and especially the girl children who are treated with such barbarity and savageness”. It also left it to the Parliament to enquire into the possibility of higher punishment. The Protection of Children from Sexual Offences Act, 2012 already prescribes imprisonment for life as a maximum penalty for aggravated sexual assault. Therefore, what was in the contemplation of the court could have been only death penalty. Do we have enough, or any, evidence that death penalty will cultivate respect for the children and especially girl children? The court has correctly, but in vain, has left the Parliament to fathom the empirical data available in this respect.
Death penalty, the Constitution of India and the regime of human rights
The Constitutional Assembly was unequivocal in leaving the question of abolition of death penalty to the legislature. Constitutional silence in this respect is regrettable in hindsight, but cannot be helped, as it is as much a product of its time as the foresight of its authors. However, this deliberate, constructive ambiguity also points at the fact that the legislature has an obligation to consider the question of death penalty and frame its policy on it. Unfortunately, this is a responsibility that the Parliament is yet to call its own.
In any event, India's stand on the international plane towards the efforts of abolition of, or moratorium on, death penalty is assertively negative. There is no international treaty that bars death penalty although there is an avowed inclination towards abolition of death penalty in ICCPR as is made clear by various comments of the Human Rights Council established under that Convention. India is not a signatory to the Second Protocol of ICCPR that requires the state party to abolish death sentence.
Article 6 of the ICCPR provides that no one shall be deprived of ‘his inherent right’ to life arbitrarily. The reading of the safeguards under Article 14, 19 and 21 of the Constitution of India by Bacchan Singh v. Union of India in imposing death penalty goes a long way in securing India's compliance with this norm. However, the only aspect that was consistent in the application of the 'rarest of rare' cases test was the inconsistency. The Law Commission, in its 262nd Report, found that the Supreme Court in some cases found the rape of a child to be among the rarest of rare, while in other similarly placed cases, it did not. In Rameshbhai Rathod (2) v. State of Gujarat, the Supreme Court acknowledged this: “There is a very thin line on facts which separates the award of a capital sentence from a life sentence in the case of rape and murder of a young child by a young man and the subjective opinion of individual judges as to the morality, efficacy or otherwise of a death sentence cannot entirely be ruled out.” This betrays naked arbitrariness and consequently a violation of not only the constitutional mandate, but also India's obligations under ICCPR.
Perhaps, the greatest victory that the judiciary can gift to itself and history will be to accept defeat, like Blackmun, J(dissenting): “The basic question - does the system accurately and consistently determine which defendants “deserve” to die? - cannot be answered in the affirmative.”
Article 6 of ICCPR further requires that death penalty cannot be imposed but in the case of most serious crimes. Clearly, India must limit the use and abuse of death sentence to the farthest extent possible. Yet, the legislature has been adding to the list of capital offences, this time by way of an ordinance, with no deliberation on the very real possibility of arbitrariness creeping into the process of sentencing. India is only the 14th country to introduce death penalty for rape of a child, as reported by the Death Penalty Clinic at National Law University, Delhi.
Though India has only signed, and not yet ratified, the Convention Against Torture, the customary rule of international law against torture has attained the status of jus cogens, or such norms of international law that are peremptory from which no derogation is possible. There is a view among international jurists that imposition of death penalty amounts to inflicting torture. This view, which is akin to the majority opinion in Kennedy v. Louisiana, also merits serious introspection.
Shifting the paradigm
All the arguments that can be put forth in favour of, or against, abolition of death penalty have been succinctly summarized by the Law Commission of India in the 262nd Report. It was evident that all the arguments in favour of retaining death penalty were based on moral grounds, countered by arguments that are equally moral in nature. Of all perspectives, one based on a moral conviction is the most difficult to alter. Indeed, it is the moral abhorrence against child sexual abuse that masquerades as consensus in favour of death penalty as its punishment. The efforts at an informed, insightful discourse on death penalty cannot succeed unless it is replanted from the plane of crime and punishment, and placed, as it ought to be, within the paradigm of jurisprudence. As Albert Einstein said, no problem can be solved from the same level of consciousness that created it.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
 554 U.S. 407 (2008)
 (2009) 6 SCC 498
 (2016) 3 SCC 680
 AIR 1980 SC 898
 (2011) 2 SCC 764
Callins v. Collins, 510 US 1141 (1994)