Chairman of the National Human Rights Commission (NHRC) and former Chief Justice of India K. G. Balakrishnan’s recent defence of the death penalty is bewildering. His “deterrent effect” argument is starkly at odds with the near universal understanding that the fundamental right to life implies, among others, the abolition of the death sentence. In the 1951 A. K. Gopalan case, the Supreme Court of India effectively allowed unlimited restrictions on the right to life and liberty, so long procedures prescribed by law were followed. In the Maneka Gandhi case some three decades later, however, the court limited the scope to those procedures that were “right, just and fair,” not “arbitrary, fanciful and oppressive.” Significantly, in a 1985 ruling where execution by public hanging was declared unconstitutional, the court made the stinging observation that “a barbaric crime does not have to be met with a barbaric penalty.” This is the sequence of illustrious verdicts that culminated in the apex court’s landmark judgment limiting the award of the death penalty to the “rarest of rare cases.” To be sure, the letter and spirit of that ruling has largely informed judicial opinion and public debate on capital punishment ever since. The Supreme Court has displayed sagacity and restraint in its appellate jurisdiction, even if the lower courts have tended to hand down the death penalty more readily. Recall the initial verdict and the subsequent pronouncements in the Rajiv Gandhi assassination case.
It should be fairly obvious to Justice Balakrishnan, more than to others, that his sanguine view on the legal safeguards for the death penalty is not borne out by facts on the ground. The accused in serious offences are often unable to get proper representation during trials; investigative agencies often resort to torture to extract confessions; and the complex web of corruption coupled with the suppression of evidence does not offer the assurance that no innocent person would be convicted. And, appealing to the higher judiciary is beyond the pale of the ordinary citizenry because of the huge cost. The cost-benefit analysis in terms of the “deterrent value” of capital sentence in the reduction of heinous crimes repudiates the very notion of punishment as a reformative process. The country’s premier body vested with the protection of human rights is expected to take a humane and sympathetic view to soften the law’s hard edges, and the right course for it would be to steer the public debate towards abolition.