On 21st April 2018, the President of India signed the Criminal Law (Amendment) Ordinance, 2018 (“Ordinance”). The Ordinance amended certain criminal laws including Indian Penal Code, 1860; Protection of Children from Sexual Offences Act, 2012 (POCSO) and The Code of Criminal Procedure, 1973. The controversial part of the Ordinance was the addition of Section 375B to the Indian Penal Code: it made child (below 12 years) rape an offence punishable by death penalty.

The Ordinance was a passed amidst the public furore over the brutal child rape incidents that occurred in Kathua (Jammu) and Unnao (Uttar Pradesh); death penalty for these type of cases, the central government felt, was the appropriate response.

However, activists, advocates and families of rape survivors oppose the introduction of death penalty.  They view this as a legal populist move that obscures real issues: the focus, they argue, must be on addressing longstanding problems related to the criminal justice system like low conviction rates. The Ordinance has triggered a larger debate on whether India should have a death penalty provision on its statutory books or not.

The demand for abolishing death penalty was first made in 1931 by Gaya Prasad Singh, member of Central Legislative Assembly; he sought to do this by introducing a Bill in the legislature; the Bill, however, was not taken up. Interestingly, in the same year, Bhagat Singh, Sukhdev and Rajguru were hanged in the Lahore Conspiracy case.

A week after the revolutionaries were hanged, at its Karachi Session, the Indian National Congress passed the Karachi Resolution which abolished capital punishment. Another constitutional antecedent document – the Gandhian Constitution – also adopted the same stance.

During the framing of India’s Constitution, while the Constituent Assembly was debating the need for conferring criminal jurisdiction to the Supreme Court, some members of the Assembly expressed their views on capital punishment that were motivated by different rationales. Shibban Lal Saxena drew from his personal experience of being imprisoned during the Quit India movement in 1942. He stated that, during his time at the jail, he witnessed several inmates being hanged and believed that they were innocent and so he was in favour of abolishing death penalty. Dr P.K. Sen invoked the example of western countries that have abolished death penalty. He pointed out that Britain’s history of capital punishment was tardy - he cautioned that India should not follow Britain’s precedent. Ambedkar wanted to abolish death penalty as well; he argued that the ancient tradition of non-violence must be regarded as a moral mandate.

The Constitution of India, 1950 as passed and adopted by Constituent Assembly does not take a stance on death penalty; its neither supports or abolishes it. It, however, does make the implicit assumption of the existence of death penalty: Article 134 provides individuals punished by death a right to appeal to the Supreme Court.