“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.” So wrote English author JRR Tolkein in his popular Lord of the Rings series. India’s Mahatma Gandhi put it this way: “An eye for an eye makes the whole world blind.”
Although much of the world has come around to a similar view — that one killing cannot be avenged with another — most South Asian states maintain a fondness for capital punishment, with Nepal, Bhutan and Sri Lanka as the exceptions.
The constitutions of Nepal (Article 16), and Bhutan (Article 7-18) both prohibit the death penalty. Interestingly, though the death penalty has a legal foundation in Sri Lanka there have been no executions in the Buddhist state since 1976. Legal practice shows that the state has moved a step toward abolition, following the global trend.
Conversely, the South Asian states of Afghanistan, Bangladesh, India, Maldives, and Pakistan all firmly believe that the death penalty can deter people with evil intent. In this context, the Indian legal system fails to buy into the words of Gandhi, who is considered to be Bapu (founding father) of the world’s largest democracy.
The Indian Penal Code (IPC)-1860 (amended in 2013) prescribes the death penalty for as many as 11 offenses, including waging war against the government, abetting mutiny by a member of the armed forces, acid attack, murder, rape, and criminal conspiracy. Similar legal frameworks for the death penalty (save for acid attack) have been provisioned under the Bangladesh Penal Code.
In Pakistan, capital punishment is provisioned for no less than 27 different offenses, to include blasphemy, sexual intercourse outside of marriage, outraging the modesty of a woman, and smuggling drugs.
In Afghanistan, various crimes — murder, apostasy, homosexuality, rape, terrorism, drug trafficking, adultery, treason, or desertion — are punishable by death based on Islamic jurisprudence. The Maldivian legal position on the death penalty is similar to Afghanistan’s.
Generally, an accused merits the fate of legal death in India, Pakistan, Bangladesh, Maldives, and Afghanistan when the crimes committed meet the threshold of “most serious crimes.” Blasphemy, adultery, or drug trafficking do not necessarily meet the threshold of “most serious crimes” but are still punishable by death in Pakistan and many other Islamic countries, including Maldives and Afghanistan.
India’s Supreme Court, in the landmark case of Bachan Singh vs.State of Punjab (1980), forwarded the doctrine of “rarest of rare,” arguing that life imprisonment is the rule while a death sentence is the exception. The top court held that the death penalty could be imposed “when [society’s] collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
Even though there is no statutory definition of “rarest of the rare” cases, its widely believed that the pre-planned, brutal, cold-blooded, and sordid nature of a crime, without giving any chance to the victim, is taken into consideration to decide whether a particular case falls within the purview of “rarest of the rare.” India’s Supreme Court recently used this metric to award the death penalty to the accused in a high-profile 2012 gang-rape case.
The “collective conscience” metric for awarding the death penalty is problematic. If a judge feels that the collective conscience is so shocked that it’s desirable to inflict the death penalty on the accused, then can he or she hear the case entirely on merit? Will the judge ensure a fair trial and presume the accused innocent until proven guilty?
Additionally, in the 21st century world we live in — fully equipped with 24-hour TV and social media on tap — outrage can be manufactured and reality can be distorted.
“The collective conscience doctrine is not a very clear-cut concept and its in want of a healthy debate in India,” opines Dr. Nidhi Saxena, a faculty member in international law at Sikkim Central University, India. She adds that the judicial pronouncements may not address the collective conscience, as public participation was not ensured in the entire decision making process.
Beyond the specific issues with the “collective conscience” rule, many believe that the taking of a life by the judiciary is simply unjust and inhuman and its continued practice is a stain on a society standing on humanitarian values. Beyond this, the death penalty regime is a clear violation Article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights. And, interestingly, India, Pakistan, Maldives, and Afghanistan are signatories to these conventions.
Although the task remains unfulfilled, the second optional protocol to ICCPR was introduced in 1991 with the aim of abolishing of the death penalty globally. However, the instrument only succeeded in imposing an obligation on the international community to disallow capital punishment in the case of minors and pregnant women.
Despite this, the Maldivian parliament recently enacted a law that confirms death penalty can be applied to a minor who commits an intentional murder or any serious crime.
A UN resolution that called for a global moratorium on the death penalty was passed by the General Assembly on December 19, 2016. It was supported by 117 states; 40 voted against it and 31 abstained.
Moreover, the International Criminal Court, which is situated in The Hague, also slams the death penalty and favors life imprisonment even for crimes against humanity, such as genocide.
Even as the global trend roots for abolition, the states imposing the death penalty justify their slated position. They appeal to each state’s sovereign rights to determine its own law (as enshrined under Article 2 Paragraph 7 of the UN Charter, i.e., the principle of non-intervention in the domestic affairs of a state). They also argue that the death penalty is exercised in rare cases and insist their legal systems guarantee rule of law and ample procedural safeguards for a fair and speedy trial.
However, “abolition is now entrenched in human rights discourse and it cannot be limited to national criminal jurisprudence. If one makes the ‘sovereignty defense’ then its simply a frivolous justification,” says Saxena.
Ultimately, the “death penalty is not a strong enough deterrent; rather effective laws and order are,” Saxena argues. Though a section of the population in India favors the death penalty for crimes involving women and children or terrorism, she believes“the move towards a more enlightened approach (i.e., abolition) could be initiated in Parliament.”
The criminal jurisprudence of most of South Asia on death penalty falls short of international obligations and its high time to rethink their stand on the death penalty.
As per the reports of Amnesty International, around 140 countries — more than two-third of the world — have abolished the death penalty in law or practice. The South Asian states, except Nepal, Bhutan, and Sri Lanka, are out of step with this global trend.
Jivesh Jha is a Kathmandu University graduate and currently an LL.B student in Dehradun, India.