Tharoor moves private bill to abolish death penalty

Shashi Tharoor. PTI file photo.

Calling it an "aberration in a healthy democracy" and a "dated form of retributive justice" untenable with India's non-violent traditions, Congress MP Shashi Tharoor has moved a private members' bill seeking abolishment of death penalty.

The Death Penalty (Abolition) Bill was introduced in Lok Sabha recently by the Congress MP from Kerala and it joins a series such private members' bills and resolutions moved in Parliament by MPs like CPI's D Raja and DMK's Kanimozhi. None of the earlier attempts was fructified as the government stood adamantly against removing the death penalty from the statutes as most parties, except the Left, support execution as a form of punishment.

In his Bill, Tharoor wants to amend the Indian Penal Code to ensure that "no person convicted of any offence shall be punishable with the sentence of death" and wherever it is applicable, it should be replaced with life imprisonment.

Tharoor argues that the death penalty is "untenable with our historic traditions of non-violence and has no place" in 21st century India. The death penalty is a "distraction" from the needed strengthening of preventive and reformative models of our judicial systems, he says.

The Statement of Objects and Reasons of the Bill says, "death penalty remains an aberration in a healthy democracy and has in effect failed to fulfil the purpose it was designed to. Instead, it has reduced the State, the moral safeguard and gatekeeper of justice for the common citizen to a position of weakness, ignoring Mahatma Gandhi's prescient warning that an eye for an eye will make the world blind."

Tharoor is of the view that the death penalty is "untenable" to the concept of a "just and reasonable legal procedure, as the ends of justice in deterring criminal activity, is not served by the death penalty, more than the punishment of life imprisonment". The penological justifications for the death penalty are "no longer valid", in light of the evolving jurisprudence and criminology, "in favour of restorative justice, rather than justice motivated by retribution", the Bill says.

Though the sentencing of death is measured through the doctrine of 'the rarest of rare', the Bill says the very nature of this doctrine lends itself to "human bias". It stands in "stark contradiction" with the previous tenet of a judgment beyond the scope of reasonable doubt. The Supreme Court and the Law Commission, which studied the death penalty acknowledged this.

The Law Commission, in its report on the death penalty that recommended its abolition except in terrorism cases, had concluded that the exercise of mercy powers under articles 72 and 161 of the Constitution, have failed to act as a "bulwark against the miscarriage of justice in the imposition of the death penalty".

"The fact that lower courts award a significant number of death sentences, of which, only a fraction of these is confirmed by the Supreme Court, lends credence to the belief that the 'rarest of rare' doctrine has not been applied in spirit by lower courts," the Bill says.

It also highlighted that the "significant percentage" of individuals who have been given this sentence hail from socio-economically vulnerable groups and emphasised that it illustrated the "larger implications of such bias". 

"Further, the utility of capital punishment as a 'deterrent' to crime and terror stands effectively diminished given that comprehensive studies have statistically denied any correlation between the rate of crime and death penalty. The existence of such a punishment also renders implausible any scope for reformation of a convict," the Bill says, an argument which has been highlighted in the Law Commission report too. 

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Tharoor moves private bill to abolish death penalty

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