Officially the Law Commission is recommending keeping the death penalty only for terror.
But in reality what it’s doing is moving the conversation towards the abolition of the death penalty in India.
According to the Indian Express the commission in its 272-page report is quite clear about what it thinks about the death penalty.
“The death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. The quest for retribution as a penal justification cannot descend into cries for vengeance.”
The Supreme Court had already decreed that capital punishment should be reserved for the “rarest of rare” cases. What the Law Commission is basically saying is that is too fuzzy a definition and too many cases are ending up in the “rarest of rare” bucket even though higher courts eventually quashed many of those sentences. In fact the number of death sentences being quashed shows they are being imposed too arbitrarily.
The terror exception is tantamount to the commission drawing its line in the sand. But it is also a transit lounge in a longer journey towards abolition itself.
The reasons why the commission thinks abolition make sense are a different matter as are the arguments of the likes of Ram Jethamalani to retain the death penalty. This is not an issue on which there will ever be quick consensus.
What the Law Commission seems to be doing is easing India into truly getting into the “rarest of rare” mindset. Whether a country keeps capital punishment after all is not so much about the law as it is about a societal mindset. Changing that will take time. And it seemed clear that terror was one issue where civil society activists, lawyers and parliamentarians divided most on the issue.
The problem with the terror exception however is that it’s unlikely to work that well as a point of temporary consensus, something that most people can agree on.
Who we call terrorist can sometimes be very much in the eye of the beholder. One person’s terrorist can be another person’s freedom fighter. As far as deterrence goes an ideologically brainwashed terrorist probably will see glory in death anyway. Capital punishment will not be any deterrent to the terror cause.
In opposing capital punishment Varun Gandhi says it creates “martyrs”. The chances of someone who committed an act of terror or political assassination in service of an ideology becoming regarded as a martyr are always high. We only have to look at the assassins of Indira Gandhi for example, one of whom died on the spot while the other was hanged. Beant Singh and Satwant Singh were declared “martyrs of Sikhism” by the Akal Takht in 2008 and Beant Singh’s family went into electoral politics successfully. And a state’s chief minister is going out of her way to show deep empathy for those convicted in the Rajiv Gandhi assassination. The huge crowds at Yakub Memon’s funeral proved that many were not convinced that his role in the Mumbai blasts deserved death by hanging and regarded him as hanging for the crimes of his absconding brother.
It’s unlikely any halo of belated martyrdom will ever encircle the Nirbhaya rapists.
In fact, if there is consensus around death penalty it is far more likely to be around brutal cases like Nirbhaya rather than the Yakub Memens and Afzal Gurus of the world. The death penalty is an emotional issue and governments are forced respond to that emotion. That is why the Nirbhaya case was fast-tracked and capital punishment made part of the amendments to the rape law. There was little resistance to it even among death penalty abolitionists who opposed it on principle but did little beyond that. On the other hand, many of those who opposed the death penalty in the Yaqub Memon case on various grounds found themselves pilloried for their stance. The Shiv Sena said those who demanded leniency for Yakub Memon should be “tried for being enemies of the country.”
The Law Commission no doubt hopes that its stop-gap measure will offer some respite in the heated rhetoric around the issue and enable us to catch our collective breath. But it’s unlikely it will do much in that regard. Instead it will pose the immediate and obvious riposte – what about the likes of the Nirbhaya rapists? Why should they not deserve the death penalty if it has to stay on the books? Why do they not deserve the rarest of rare punishments?