Date : 17/11/2023

Relevance: GS Paper 2- Polity- Judicial Reform

Keywords: Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Death Penalty, Parliamentary Panel, Pardoning Powers

Context-

The Bharatiya Nyaya Sanhita (BNS) Bill, 2023, aimed at replacing the antiquated Indian Penal Code (IPC), introduces significant changes, particularly regarding the death penalty. This proposed legislation has sparked debates on the appropriateness and scope of capital punishment in India.

Evolution of the Death Penalty in India

• Colonial Era: During British rule, India witnessed numerous instances of individuals being executed, either after trial or even before. However, post-independence, India transitioned into a democratic state, leading to substantial changes in the administration of the death penalty.
• Current Status: As of December 31, 2022, a study by the National Law University Delhi revealed that 539 prisoners were on death row in India, marking the highest number since at least 2016. India has historically opposed global initiatives, such as the United Nations General Assembly's draft resolution advocating for the abolition of the death penalty.

Bharatiya Nyaya Sanhita Bill, 2023

The BNS Bill, 2023, endeavors to repeal and replace the 160-year-old IPC. It introduces alterations to various sections, including.

• IPC Section 420 (Cheating): The offense of cheating is now covered under Section 316, with no distinct Section 420.
• IPC Section 124A (Sedition): The term "sedition" is replaced by "Acts endangering sovereignty, unity and integrity of India" in Section 150.
• Death Penalty: The BNS Bill expands the scope of crimes eligible for the death penalty from 11 to 15, encompassing offenses like mob lynching, organized crime, terrorism, and rape of a minor.

For example, the Death penalty for gang rape of minors: IPC allows the death penalty for gang rape of women below 12 years of age. The Bill allows the death penalty for gang rape of women below 18 years of age.

• IPC Section 302: Murder
• IPC Section 307: Attempt to murder
• IPC Sections 375 and 376: Rape
• IPC Section 120B: Criminal conspiracy, etc.

Recommendations from the Parliamentary Panel: Urging Government Consideration on Death Penalty

• In their report, the parliamentary panel suggests deferring the decision on the death penalty to the government's careful consideration. Expert consultations emphasized the lengthy deliberations on the necessity of abolishing the death penalty.
• The committee acknowledges the fervent opposition to the death penalty, attributing it to concerns about the fallibility of the judicial system and the potential for wrongful convictions leading to innocent individuals facing capital punishment.
• Domain experts, during their submissions to the committee, propose a refinement of the 'rarest of rare case' doctrine, emphasizing the need for more objective criteria if the retention of the death penalty is deemed necessary.

Debate on the Death Penalty

Arguments in Favor

• Legal Support: Historically, the Law Commission of India, in its 35th Report (1962), advocated for retaining the death penalty, citing the maintenance of law and order.
• Deterrent Effect: Proponents argue that the death penalty acts as a deterrent and responds to societal calls for appropriate punishment in specific cases.
• Maintenance of law and order: It said that maintenance of law and order, absence of any empirical research, and other similar factors, “India cannot risk the experiment of the abolition of capital punishment”.

Arguments Against

• Global Trends: Contrary to the global trend, where a majority of countries have abolished the death penalty, India continues to maintain and expand its use.
• Socioeconomic Impact: Critics contend that the poor and uneducated bear the brunt of the death penalty, with 74.1% of individuals on death row in India coming from economically disadvantaged backgrounds.
• Ineffectiveness: Opponents argue that neither hanging nor lethal injection, the two common methods of execution, effectively reduce the pain for the condemned.
• Low Imposition: Data reveals that the Supreme Court has affirmed the death penalty in only 7 cases in the last 6 years, raising concerns about the distress caused by the uncertain wait before the sentence is confirmed or set aside.
• Recommendations and Future Considerations: The parliamentary panel recommends that the decision on the death penalty be left to the government's discretion. Experts propose a more objective definition of the "rarest of rare cases" doctrine if the death penalty is to be retained.

Way Ahead

To address concerns surrounding the death penalty, experts suggest:

• Addressing arbitrariness in death penalty sentencing.
• Recognizing the discriminatory impact on marginalized groups.
• Mitigating the harsh realities of life on death row.
• Considering the mental health consequences of being on death row.
• Moreover, the establishment of quasi-judicial boards for probation, commutation, and remission is proposed, providing victims with a greater say. Additionally, setting clear timelines for mercy petitions is recommended to ensure a fair and efficient legal process.

Conclusion:

As India contemplates the Bharatiya Nyaya Sanhita Bill's implications on the death penalty, a complex debate unfolds. The proposed legislation not only expands the scope of capital offenses but also triggers discussions on the efficacy and fairness of the death penalty system. While experts call for objective criteria and address socio-economic impacts, the recommendation to leave the death penalty decision to the government marks a pivotal point in shaping India's stance on this contentious issue.

Source- The Hindu