The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.Justice Potter Stewart in Furman v. Georgia
A three-member committee led by former Chief Justice of India JS Verma, set up to suggest criminal law reforms for sexual crimes against women, had used these words of United States’ Justice Potter Stewart as a starting point to deliberate on the issue of death penalty. The committee was a result of a country-wide public outcry, prompted by the gang rape in Delhi on Dec. 16, 2012. Its mandate was to suggest possible amendments to the criminal law to provide for quicker trial and enhanced punishment for sexual crimes against women.
The ask of death penalty by many for such crimes was met with this response – ‘…taking into account the views expressed on the subject by an overwhelming majority of scholars, leaders of women’s’ organisations, and other stakeholders, there is a strong submission that the seeking of death penalty would be a regressive step in the field of sentencing and reformation.’
On Saturday, the Union Cabinet cleared the Criminal Law (Amendment) Ordinance 2018, which allows death penalty in cases of rape of girls under age 12.
The ordinance has proposed stringent punishment in such rape cases: minimum 20 years jail or life term or death, according to Bloomberg. In case of rape of a girl under 16, minimum punishment has been increased from 10 years to 20 years, extendable to imprisonment for rest of life, Bloomberg said quoting a government official.
Why Had The Committee Warned Against Death Penalty?
The committee had examined the submissions of The Working Group on Human Rights in India and resolutions adopted by the UN Commission on Human Rights. The latter, the committee’s report states, has adopted four resolutions to impose a moratorium on death penalty until death penalty is fully abolished. The first such resolution is dated Dec. 18, 2007.
The resolution calls upon states which still retain the death penalty to “progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed.”
American courts too have found death penalty as “barbaric and excessive” even in cases of aggravated sexual assault, the report had stated.
The committee had also examined the jurisprudence in India and pointed out that death penalty is awarded in ‘rarest of the rare’ cases. It had acknowledged that rape is very often accompanied by physical injury to the victim and can also inflict mental and psychological damage. But had suggested that gradation of sexual offences should be retained in the Indian Penal Code.
We believe that such offences need to be graded. There are instances where the victim/survivor is still in a position from which she can,with some support from society, overcome the trauma and lead a normal life. In other words, we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death.Report of The Committee on Amendments to Criminal Law
There is considerable evidence that the deterrent effect of death penalty on serious crimes is actually a myth, the committee had noted. And hence had suggested amending life imprisonment to always mean imprisonment for ‘the entire natural life of the convict’.
Late Justices JS Verma and Leila Seth, and former Solicitor General of India Gopal Subramanium were the members of this committee.