THE DEATH PENALTY MUST GO

Since the founding of the Indian Constitution five decades ago, public awareness of problems
with the death penalty and prevailing international legal standards has evolved significantly.
In dozens of countries, democratic governments in the course of conducting a major review
of their national constitutions have decided to curtail, if not abolish, the death penalty. In
national systems and as a matter of international law, it is increasingly recognised that the
death penalty has no place in a democratic and civilised society. According to the United
Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, "While
capital punishment has not yet been prohibited under international law, various United
Nations human rights organs and bodies have, on several occasions, reaffirmed the growing
international consensus in favour of the abolition of the death penalty." Similarly, the United
Nations High Commissioner for Human Rights has commented: "While the death penalty is
yet to be banned under international law, the trend towards this goal is obvious. The adoption
in 1989 of the Second Optional Protocol to the International Covenant on Civil and Political
Rights aiming at the abolition of the death penalty was a clear recognition by the international
community of the need to eliminate the use of capital punishment, totally and globally. The
desirability of the total abolition of the capital punishment has also been reaffirmed on
repeated occasions by various United Nation bodies and organs." In accordance with these
international developments, the National Commission to Review the Working of the
Constitution in India should propose abolishing the death penalty, and, in the alternative,
adopting strict and explicit standards which comply with the emergent international
consensus towards minimisation of the death penaltys harms pending its eventual abolition.
The emergent international consensus against the death penalty has been reflected in recent
international instruments. For example, while the post World War II statutes of the
Nuremberg and Tokyo tribunals included the death penalty as a form of punishment, their
modern analogues - the statutes for the International Criminal Court (1998), the International
Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former
Yugoslavia (1993) - have all deliberately excluded the death penalty as an option. Article 6 of
the International Covenant on Civil and Political Rights (ICCPR), which India has ratified,
also envisions abolition as a positive goal, a conclusion recently reaffirmed by the UN
Human Rights Committee.
These international standards have corresponded with significant developments in national
practices, despite countries such as India not yet following the progressive trend. The most
recent UN statistics show that, as of 1 December 1998, 107 States had become abolitionist,
either in law or practice. Since then, at least seven more States have abolished the death
penalty, bringing the total to an all time high of 114. The list of abolitionist States is expected
to grow even further. For example, the Council of Europe now requires all new members to
establish an immediate moratorium on executions and to ratify, within three years of joining
the organisation, Optional Protocol No. 6 to the European Convention, Article 1 of which
requires that "[t] he death penalty shall be abolished." More globally, the UN Commission on

Human Rights has recently called on all States, which retain the death penalty "to establish a
moratorium on executions, with a view to completely abolishing the death penalty."
Thus, as the international communitys consensus against the death penalty grows, India is
becoming increasingly isolated in its commitment to the death penalty. India has complied
with the international consensus by ratifying international human rights instruments such as
the International Covenant on Civil and Political Rights, but has not followed with abolishing
the death penalty as so many other nations have done. In fact, in recent years, the
Government of India has directly flouted the international standard by expanding the
application of the death penalty to include more types of offences. For instance, the proposed
revivification of the lapsed Terrorist and Disruptive Activities (Prevention) Act (TADA)
through the Prevention of Terrorism Bill threatens to take the country even further down the
road away from the prevailing international legal principles.
Currently, capital punishment is included as a penalty in a number of legislative acts such as
the Indian Penal Code, penalty provisions of national security legislation, and anti-narcotics
legislation. Attempts to abolish the death penalty through legislative action have repeatedly
failed, the most recent significant attempt being discussions held in the Lok Sabha (Lower
House of the Indian Parliament) in 1983. According to the Supreme Court, specific articles of
the Constitution (e.g., Articles 21 and 72) anticipate the exercise of the death penalty thus
implicitly indicating that it is a constitutional option for the State to use, even though its
application is subject to certain constitutional constraints.
The Supreme Court upheld the constitutionality of the death penalty in Jagmohan Singh v.
State of U.P, but in so doing, articulated a standard which gave rise to an understanding that
the death penalty should be a narrow exception, not the rule, in sentencing. The Court also
explained that the law could not prescribe the death penalty for all persons committing certain
crimes, but instead the circumstances of each offence would be considered. The Court
concluded that the death penalty could be imposed only if the circumstances of the case
indicated that state security; public order and the interests of the general public compel it. In
Bachan Singh v. State of Punjab, the Court announced important limitations on the death
penalty thus solidifying the so-called "rarest of rare" doctrine. Several factors determine
whether a case should be considered the "rarest of rare," including the manner of commission
of the crime, motive, anti-social or socially abhorrent nature of the crime, magnitude of the
crime and the personality of the victim. Paradoxically, it has arguably been the development
of the "rarest of rare" doctrine, which has helped the death penalty survive as a form of
punishment over the years.
Many international instruments, most notably including the ICCPR, prohibit application of
the death penalty for other than the "most serious crimes." Indias limitation of the death
penalty to purportedly the "rarest of rare" cases, however, does not comply with the
prevailing international standards. First, the death penalty in India is applied to crimes (e.g.,
narcotics offences, kidnapping for ransom) that cannot be considered the "most serious
crimes" as defined by international law. Second, the international legal standard involves a

commitment towards the progressive abolition of the death penalty and, as such, a practice of
continuing to impose the death penalty, even if in only the "rarest of rare" cases, cannot be a
permanent, or enduring feature of any national legal system. Instead, a doctrine such as the
"rarest of rare" should be an intermediate step towards the ultimate goal of abolition. Yet,
India has now maintained the "rarest of rare" doctrine for over two decades -- without any
end in sight. Third, Indias expansion of the use of the death penalty -- as in the proposed
Prevention of Terrorism Bill and the Narcotics, Drugs & Psychotropic Substances
(Amendment) Act -- violates both international law and the rarest of rare standard itself.
Finally, the rarest of rare doctrine cannot be applied without violating the international legal
prohibition against arbitrary or discriminatory treatment. It is exceptionally difficult, if not
impossible, to create or operate a system with flexible standards for judges to determine the
"rarest of rare" case, without having the sentencing process result in uneven and arbitrary
treatment.
Other international standards also prohibit the application of the death penalty in the
institutional situation, which is present in India. The Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions has explained, "it is imperative that legal proceedings in
relation to capital offences conform to the highest standards of impartiality, competence,
objectivity, and independence of the judiciary, in accordance with the pertinent international
legal instruments." The Safeguards Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, adopted by the UN Economic and Social Council in 1984, include the
same rule. In practice, however, the Indian criminal justice system has not been able to cope
with the weight of an immense caseload, the lack of resources and the vital needs of the most
impoverished criminal defendants. One major problem with the system is that poor and
illiterate defendants generally do not have access to adequate legal assistance. Judges also
often decide cases on a discriminatory or arbitrary basis without sufficient checks on their
power. While these and other significant inequities, which operate throughout the criminal
justice system, do not generally mean that institutional processes should be suspended until
those problems are resolved, in cases of putting people to death, it does. Finally, while there
is no direct international legal prohibition on the use of hanging it appears clear from those
international standards which have been articulated, that hanging - Indias preferred method
for execution - is prohibited by international human rights law. In light of all the above, the
National Commission to Review the Working of the Constitution should propose the
abolition of the death penalty.
Pending abolition, the Commission should recommend: (1) establishing a moratorium on
executions, pending reforms in the criminal justice system that ensure equal treatment of
similarly situated defendants and the highest standards of fair trial are met; (2) adopting
explicit language to limit the scope of the death penalty to the most serious crimes as defined
by international law; (3) eliminating the possibility of imposing the death penalty in
proceedings conducted by special tribunals which lower the procedural protections usually
afforded defendants; and (4) prohibiting hanging as a method of execution.