The Law Commission of India in its “Report No.262: The Death Penalty” of August 2015 recommended that “the death penalty be abolished for all crimes other than terrorism related offences and waging war. Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.”
Threat to national security has been used to justify retention of death penalty in many countries of the world.
This report shows that there are countries with fewer resources than India which faced far more protracted and deadly insurgencies and acts of terrorism but did not feel the necessity to use death penalty to ensure national security. These countries are mainly in Asia including Philippines, Nepal and Sri Lanka.
The Philippines abolished death penalty in 2006 in the midst of insurgencies and widespread acts of terrorism committed by the Moro National Liberation Front (MNLF), the Moro Islamic Liberation Front (MILF), the Abu Sayyaf Group (ASG) and the Communist Party of Philippines (CPP) with the death toll of 120,000 in the conflict with the Moro insurgents and 40,000 with the CPP between 1969 and 2014. Prior to the abolition of death penalty, the Abu Sayaff group claimed responsibility for a series of bomb attacks over the years, including an attack on a passenger ferry in Manila Bay in February 2004 that killed 100 people. In February 2005, the guerrillas killed 13 Marines in an ambush in Patikul, Sulu. In the face of these acts of terrorism and without any political solution, on 6 June 2006 the Philippines Congress passed bills abolishing the death penalty and President Gloria Macapagal-Arroyo signed the Republic Act No. 9346, ‘An Act prohibiting the imposition of the death penalty in the Philippines’. Following the abolition of death penalty, the Philippines continued to face deadly acts of terrorism. In April 2007, the Abu Sayyaf cadres abducted and beheaded six construction workers and a factory worker in Jolo, Southern Philippines. In August 2007, the MNLF and the Abu Sayyaf groups claimed responsibility for an ambush on troops in Jolo, which led to death of 60 soldiers. From 2008 to 2011, the Abu Sayyaf group conducted a series of kidnappings for ransom. Kidnap victims included a group of Filipino journalists in 2008; foreign members of the International Committee of the Red Cross in 2009; and two Filipino-Americans in 2011. Finally, the Philippines has been able to find a political solution with the Moro Islamic Liberation Front (MILF) in May 2015 while it still confronts the CPP whose sole aim has been to overthrow the Philippine government using guerrilla-style warfare.
No other country in the world has witnessed the assassination of its national political leaders as Sri Lanka.The Liberation Tigers of Tamil Eelam (LTTE) had perfected the use of suicide bombers, invented the suicide belt and pioneered the use of women in suicide attacks. The LTTE assassinated former Prime Minister of India, Rajiv Gandhi on 21 May 1991, President of Sri Lanka Ranasinghe Premadasa on 1 May 1993, Member of Parliament Dr Neelan Tiruchelvam of the Tamil United Liberation Front (TULF) on 29 July 1999, and Lakshman Kadirgamar, Sri Lanka’s Foreign Minister on 12 August 2005 while it made attempts to assassinate then sitting President Chandrika Bandaranaike Kumaratunga in a suicide attack on 18 December 1999 and then Minister and current President of Sri Lanka, Maithripala Sirisena on 9 October 2008. Though death penalty remains in the statute book, Sri Lanka did not carry out an execution since 1976 to deal with the dreaded LTTE.
In fact, the Communist Party of Nepal-Maoist (CPN-M) is the only leftist insurgent organisation in the 21st century which caused overthrow of a government anywhere in the world i.e. the monarchy in Nepal. In the armed conflict that claimed over 13,000 lives from 1996 to 2006, the People’s Liberation Army (PLA), the military wing of the CPN (Maoist) spread to 73 out of 75 districts of Nepal except Manang and Mustang districts. According to some estimates, the Maoists established control over approximately 40 per cent of Nepal’s countryside, thereby assuming the functions of governance in the areas under their control. Yet Nepal did not recall the death penalty to deal with the Maoists.
Outside Asia, Colombia has been facing equal, if not far more serious and protracted armed conflict than India, Philippines, Nepal and Sri Lanka. Colombia has been in armed conflict with the Fuerzas Armadas Revolucionarias de Colombia (FARC or the Revolutionary Armed Forces of Colombia) since 1964. Between 1980s and 2000s, the FARC succeeded in gaining control of over one-third of Colombia’s national territory, having fighters on the entry and exit routes of all major cities. Yet, Colombia did not feel the need to invoke death penalty abolished in 1910 under the Legislative Act No. 3 to combat the FARC.
In the cases of isolated but deadly acts of terror in Metropolitan cities, India imposed death penalty in a number of terror cases and justifies the use of death penalty on the ground that it is applied on the “rarest of rare” cases as enunciated by the Supreme Court of India in Bachan Singh v. State of Punjab. Some of the terror cases in which death penalty was imposed include the Parliament attack of 13 December 2001 by the Lashkar-e-Toiba and the Jaish-e-Mohammad terrorists killing nine persons including six Delhi Police personnel, two Parliament staff and a gardener, and the terrorist attacks on Mumbai which took place on 26-29 November 2008 killing 164 persons (civilians and security personnel) and injuring 308 persons. While Afzal Guru, convicted for his role in the attack on the Indian Parliament, was hanged inside the Tihar Jail in Delhi on 9 February 2013, Mohammed Ajmal Amir Kasab, 26/11 attack convict, was hanged in Yerwada Jail in Pune, Maharashtra on 21 November 2012.
European countries too faced isolated but deadly terror attacks such as the 2005 London Bombings killing 52 people and injuring more than 770, the 2004 Madrid bombings killing 191 people and wounding nearly 2,000 and the 2011 Breivik killings in which Anders Behring Breivik, a far-right extremist detonated a bomb next to government offices in Oslo, Norway killing eight people and injuring at least 209 persons while he further opened fire killing 69 youths who were holidaying at a summer camp on the Utoeya island.
There is no doubt that these isolated but deadly terror attacks in Europe would have fallen into the “rarest of rare” category but non-execution of those convicted or the prohibition on the use of death penalty did not make the continent more vulnerable to terror attacks. Contrarily, India’s execution of terror suspects had made India more vulnerable. Further, India has not convicted any leader of the armed groups it designates as terrorist groups under the Unlawful Activities (Prevention) Act. Rather, it engages in dialogue with these groups, which is the need of the hour but exposes the futility of the use of death penalty.
It is not only in matters of national security but on homicide offences too, India fails to learn from the experiences of other countries from Asia, Africa and Latin America.
In comparison to the Philippines, South Africa, Colombia and Honduras, India has the lowest homicide rate despite India not executing any convict for homicide offences since execution of Dhanananjoy Chatterjee on 14 August 2004 while India started execution of terror convicts in 2013 starting with executoin of Ajmal Kasab.
Murder rate per 100,000 population had been falling to its lowest level in India since the 1960s. The murder rate started increasing from the mid-60s when executions were the norm to reach its peak in 1992 when the combined rate of murder and culpable homicide not amounting to murder was 5.15 per 100,000 population, roughly double the level in 1957. Since 1992, murder rate has been falling steadily. In 2014, the country witnessed 33,981 murders and 3,332 incidents of culpable homicide not amounting to murder and the combined rate of the two crimes per 100,000 population was 3.0 in 2014 and 2.98 in 2013 respectively.
According to the United Nations Office on Drugs and Crimes (UNDOC), number of homicides and rate per 100,000 population during 12 years between 1998 and 2009 in the Philippines was 7.2 persons.
South Africa which abolished death penalty in 1996 has far higher homicide rates than India. In 2012, South Africa recorded 25,470 cases of intentional homicides accounting for 60.4 homicide rate per 100,000 population. Homicide rate in South Africa decreased steadily between 1995 and 2011 by more than 50 per cent (from 64.9 to 30.0 per 100,000 population) following abolition of death penalty, though it experienced a slight increase back to 31 per 100,000 population in 2012.
Honduras with no armed conflict has been caught in a vortex of crime, drug trafficking, gang wars, political upheaval and fierce land disputes. With a population of eight million Honduras has the world’s highest murder rate. As per the UNDOC, the homicide rate per 100,000 people in Honduras from 2002 to 2012 was 62.5 persons and has been consistently rising since 2000 (rate 50.9) to 2012 (rate 90.4). The murder rate was 173 per 100,000 population in San Pedro Sula, the highest in the world outside a war zone. Yet, death penalty had been abolished in Honduras in 1957 and was not reintroduced to deal with homicide offences.
Colombia is among the top countries with highest homicide rates in the world. As per the UNDOC, the homicide rate per 100,000 people in Colombia from 2002 to 2012 was 44.39 persons with murder rate falling consistently below 40 persons since 2005. Colombia has not reintroduced the death penalty on the ground that the maximum sentence of 60 years is a sufficient punishment.
Indian courts regularly award death penalty in rape followed by murder cases. On 3 December 2013, a fast-track court sentenced all the four men namely Vinay Sharma, Akshay Thakur, Pawan Gupta and Mukesh Singh to death for gang-rape of “Nirbhaya”, a young medical student on a moving bus in capital Delhi that provoked national outrage and led to massive protests across India in December 2012. Judge Yogesh Khanna stated that the student was “tortured till the very end” and that the case fell into the “rarest of rare category”, which justified capital punishment.
In 1999, South African Police recorded a rape every 26 seconds. In 2013 the Reuters stated that brutal sexual attack such as on Nirbhaya in Delhi barely made a stir in South Africa. It described South Africa as a country long known as the “rape capital of the world”. In 1995, one Moses Sithole was arrested and charged with 38 murders and 40 rapes between 1994 to1995. During the arrest Sithole attacked an undercover police officer with an axe and was shot three times. Sithole was sentenced to 2410 years in prison. His sentence is made up of 12 years for each of the 40 rapes he committed, 50 years for each of the 38 murders and another 5 years for each of his six robberies.
If Nepal, Sri Lanka, Colombia and the Philippines with fewer resources than India can deal with deadly insurgencies and acts of terrorism without death penalty, can’t India deal with the same without death penalty? If rape and homicide can be dealt without death penalty in South Africa and Honduras, does India need death penalty to these offences?
It is clear that retention of death penalty has no justification in India.
01. Law Commission of India, Report No.262 The Death Penalty August 2015 available at http://lawcommissionofindia.nic.in/reports/Report262.pdf
02. Philippines arrests Muslim rebel over killing of U.S. troops, Reuters, 2 June 2014; available at: http://in.reuters.com/article/2014/06/02/us-philippines-militants-idINKBN0ED0K220140602
03. Guide to the Philippines conflict, BBC, 8 October 2012; available at: http://www.bbc.com/news/world-asia-17038024
04. Bomb caused Philippine ferry fire, BBC News, 11 October 2004, http://news.bbc.co.uk/2/hi/asia-pacific/3732356.stm
05. 14 Marines killed; 10 were beheaded, Inquirer.net, July 12, 2007; available at: http://www.inquirer.net/specialreports/thesoutherncampaign/view.php?db=1&article=20070712-76172
06. Available at: http://www.icomdp.org/cms/wp-content/uploads/2013/04/Report-How-States-abolition-the-death-penalty.pdf
07. Philippine group beheads hostages, BBC, 20 April 2007; available at: http://news.bbc.co.uk/2/hi/asia-pacific/6574773.stm
08. Guide to the Philippines conflict, BBC, 8 October 2012, available at: http://www.bbc.com/news/world-asia-17038024
10. In 2012, the Philippines Government and the MILF had agreed to a framework for a peace deal after 17 years of negotiations and both parties signed the Comprehensive Agreement in 2014. See BBC News, “MILF rebels hand over arms in the Philippines”, 16 June 2015, http://www.bbc.com/news/world-asia-33144749
11. Philippines-CPP/NPA (1969 – first combat deaths): August 2014; available at: http://ploughshares.ca/pl_armedconflict/philippines-cppnpa-1969-first-combat-deaths/
12. 5 things to know about the Rajiv Gandhi assassination case, Business Standard, 19 February 2014, http://www.business-standard.com/article/politics/5-things-to-know-about-the-rajiv-gandhi-assassination-case-114021900625_1.html
13. Suicide Bomber Kills President of Sri Lanka, New York Times, 2 May 1993 http://www.nytimes.com/1993/05/02/world/suicide-bomber-kills-president-of-sri-lanka.html
14. A Leading Sri Lankan Moderate Is Killed, The New York Times, 30 July 1999, http://www.nytimes.com/1999/07/30/world/a-leading-sri-lankan-moderate-is-killed.html
15. Assassination and after, The Frontline, Volume 22 - Issue 18, Aug 27 - Sep 09, 2005, http://www.frontline.in/static/html/fl2218/stories/20050909006100400.htm
16. President survives assassination bid, The Sunday Times, 19 December 1999, http://www.sundaytimes.lk/991219/frontm.html
17. Minister Maithripala Sirisena escapes suicide bomb attack, deputy minister injured, The Sunday Times, 9 October 2008, http://www.sundaytimes.lk/081005/latestnews/42.html
18. Nepal Conflict Report 2012 http://www.ohchr.org/Documents/Countries/NP/OHCHR_Nepal_Conflict_Report2012.pdf
20. Fact sheets - FARC areas of influence, Colombia Reports, 21 April 2014, http://colombiareports.com/farc-areas-of-influence/
21. The Legislative Act No. 3 provided that “in no event may legislators impose the death penalty”. For details, refer to Observations to the Draft Additional Protocol to the American Convention on Human Rights to abolish the death penalty, Colombia, 5 February 1990, https://www.oas.org/en/iachr/mandate/Basics/observations-death-penalty-Colombia.pdf
22. AIR 1980 SC 898
23. HM announces measures to enhance security, Press Information Bureau, Government of India, 11-December, 2008, http://www.pib.nic.in/newsite/erelease.aspx?relid=45446
24. Afzal Guru, Parliament attack convict, hanged in Delhi’s Tihar Jail, NDTV, 9 February 2013, http://www.ndtv.com/india-news/afzal-guru-parliament-attack-convict-hanged-in-delhis-tihar-jail-512816
25. Ajmal Kasab hanged and buried in Pune’s Yerwada Jail, Times of India, 21 November 2012, http://timesofindia.indiatimes.com/india/Ajmal-Kasab-hanged-and-buried-in-Punes-Yerwada-Jail/articleshow/17303820.cms
26. BBC, http://news.bbc.co.uk/2/shared/spl/hi/uk/05/london_blasts/what_happened/html/
27. Madrid bombing suspects charged, BBC, 11 April 2006, http://news.bbc.co.uk/2/hi/europe/4899042.stm
28. Anders Breivik pleads not guilty at Norway murder trial, BBC, 16 April 2012, http://www.bbc.com/news/world-europe-17724535
29. Timeline: How Norway’s terror attacks unfolded, BBC, 17 April 2012, http://www.bbc.com/news/world-europe-14260297
30. The list of the banned organisations under the Unlawful Activities (Prevention) Act is available at http://www.mha.nic.in/BO
31. Murder count in India falls to its lowest level since 1960s, The Times of India, 23 August 2015, http://timesofindia.indiatimes.com/india/Murder-count-in-India-falls-to-its-lowest-level-since-1960s/articleshow/48635001.cms
32. United Nations Statistics on Intentional homicide, number and rate per 100,000 population; available at: http://data.un.org/Data.aspx?d=UNODC&f=tableCode%3a1
33. Intentional homicide, number and rate per 100,000 population, UNODC Homicide Statistics 2012; available at: http://data.un.org/Data.aspx?d=UNODC&f=tableCode%3a1#UNODC
34. Global Study on Homicide 2013 (Trends, Context, Data) by United Nations Office on Drugs and Crime, Vienna; Available: https://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf
35. Inside San Pedro Sula – the most violent city in the world, The Guardian, 15 May 2013, http://www.theguardian.com/world/2013/may/15/san-pedro-sula-honduras-most-violent
36. A/HRC/WG.6/22/HND/1, 23 August 2010
37. Colombia rules out death penalty for child molesters, International Business Times, 17 February 2015, http://www.ibtimes.co.uk/colombia-rules-out-death-penalty-child-molesters-1488298
38. Delhi gang-rape: all four convicts sentenced to death, NDTV, 3 December 2013, http://www.ndtv.com/india-news/delhi-gang-rape-all-four-convicts-sentenced-to-death-534502
39. Every 26 Seconds: In 1999, 52,000 Rapes In South Africa, 1 February 2000; Available: http://www.cbsnews.com/news/every-26-seconds/
40. Outcry over India gang rape shames some in South Africa, Reuters.com, 6 February 2013; available: http://www.reuters.com/article/2013/02/06/us-safrica-rape-idUSBRE9150RB20130206
41. South Africa’s 11 deadliest serial killers murdered 205 people, 29 May 2014; Available: http://www.timeslive.co.za/local/2014/05/29/south-africas-11-deadliest-serial-killers-murdered-205-people