Review Death Penalty Punishments in Bhartiya Nyaya Sanhita 2023
People’s Union for Democratic Rights (PUDR) raises concern over the increased number of offences punishable by death in the Bharatiya Nyaya Sanhita (BNS, 2023). Tabled in the Parliament in August, the BNS is slated to replace the existing Indian Penal Code (IPC, 1860) on the grounds of contemporizing the issues of punishment and justice. However, besides continuing with the crimes that already attract death sentence in the existing IPC, the BNS has introduced four new offences which are punishable by death, namely- gang rape of a woman under 18 (Clause 70(2)), murder by a mob (Clause 101(2)), Organized Crime (Clause 109), Offence of a Terrorist Act (Clause 111). In short, the total number of offences punishable by death in the BNS has risen from 11 to 15.
Importantly, the Parliamentary Standing Committee On Home Affairs which adopted the Bill with recommendations in November 2023 offered no substantive reflections on the issue of death penalty. Overlooking the arguments raised by the stake holders on the need to revisit capital punishment, especially in the light of the global trend towards abolition, the Committee has chosen to interpret the objections primarily as one of judicial fallibility. It observed that “the reason for a passionate argument against death penalty is that the judicial system can be fallible and to prevent an innocent person from being wrongly sentenced to death”. With no further reflection, the Committee referred the matter to the Government for consideration.
While enhanced provisions of death penalty in the BNS and the process of reviewing deserve serious reconsideration, there is an added issue: the vague and ambiguous phrasing of offences inscribed in the BNS. This is particularly so regarding Organized Crime and Terrorist Act. Undoubtedly, the BNS reiterates that if a person “commits or attempts to commit” an organized crime or a terrorist act which results in the death of any person, then such a punishment shall “be punishable with death”. Besides reproducing the provisions of the UAPA for defining the offence of terrorist act, the BNS expands the scope ambiguously to also include acts meant “to intimidate the general public”, or “to disturb public order”. A similar ambiguity surrounds Organized Crime which lacks clear-cut definitions for categories such as ‘gang’, ‘mafia’, ‘crime ring’, ‘gang criminality’. Further, the provision defines an ‘organized crime syndicate’ as a ‘criminal organization’ without any clarity on the meaning of the latter. Given the expanded terrain of Terrorist Acts and the chain of ambiguous phrases, or lack of definitions as evident in Organized Crime, the consequent interpretative latitude implicit in the punishments by death under the BNS cannot be ruled out.
In today’s time, the enhancement of death penalty in the BNS runs contra to the judicial trend of declining death sentence. Globally, the total number of countries which have abolished death penalty had risen to 113 in 2022. However, India voted against the abolition of death penalty in the UN General Assembly in 2022. The problem in India is apparent in the lack of uniformity regarding the death penalty sentencing framework as the top court has confirmed death sentences to only 7 persons between 2007 to 2022, but a high number of death sentences continue to be awarded by trial courts. According to the NCRB’s Annual Prison Statistics 2022, a total of 190 prisoners were awarded capital punishment in 2022 alone, and as per the Annual Statistics on Death Penalty prepared by Project 39A, 539 prisoners were on death row by the end of 2022. This lack of uniformity was acknowledged by the Supreme Court, and in 2022 it took suo moto cognizance of the matter and referred it to a Constitution Bench. Under these circumstances, the BNS’s persistence and enhancement of punishments by death reflects its disregard for the domestic judicial and global trends.
It is necessary to oppose the rising trend of death penalty punishments in the BNS. PUDR’s opposition to death penalty has been a principled one. We have time and again reiterated that capital punishment represents retribution and that it is inimical to reformative justice. We have argued that arbitrariness is built into the sentences of death which are irrevocable, drawn attention to discriminatory executions, and repeated that there is no empirical evidence to link death penalty to deterrence of crime. In short, there is no justification for death penalty’s existence in a democratic polity as it rationalizes the state’s right to take away the life of its citizen.