Lawmakers, youths and a section of Nepali society have started demanding the enactment of death penalty for the rapists, following the rape and murder of three-year-old Garima Chaudhary in Bara district of Madhes Province. Many argue that the death penalty goes against the spirit of the right to life. The right to life and the provision of the death penalty cannot go together, as they are like the thesis and antithesis of each other. Mahatma Gandhi argued that, “An eye for an eye makes the whole world blind.”

After all, the provision of death penalty would allow society to express its anger against a defendant who has allegedly committed a heinous offence and may prevent victims or their families from taking revenge on their own.  As per the reports by Amnesty International, around 140 countries—more than two-third of the world—have abolished the death penalty in law or in practice. Although much of the world has come around to the view that one killing cannot be avenged with another, most of the South Asian states maintain a preference for capital punishment, with Nepal, Bhutan and Sri Lanka as exceptions.

Practice in South Asia

The Constitutions of Nepal (Article 16) and Bhutan (Article 7, Sub-clause 18) both prohibit the death penalty. Although death penalty has a legal foundation in Sri Lanka's Criminal law, there have been no executions in the Buddhist state since 1976. Legal practice shows that the state has moved toward abolition, following global trend.

On the other hand, the Islamic Republic of Afghanistan, Bangladesh, India, Maldives, and the Islamic Republic of Pakistan all firmly maintain that the death penalty can deter people with evil intent.

The 2023 Bharatiya Nyaya Samhita (BNS), which replaced long-stayed Indian penal Code of 1860, prescribes the death penalty for as many as 14 offences, including waging war against the government, abetting mutiny by a member of the armed forces, acid attack, murder, rape and criminal conspiracy.

Meanwhile, in Bangladesh, there appear to be 33 offences punishable by death, 25 of which are non-fatal in nature. In Pakistan, capital punishment is provided for no fewer than 27 different offences, including blasphemy, sexual intercourse outside marriage, rape and drug smuggling.  In Afghanistan, various crimes—murder, apostasy, homosexuality, rape, terrorism, drug trafficking, adultery, treason—are punishable by death based on Islamic jurisprudence. The Maldivian legal position on the death sentence is similar to that of Afghanistan.

An accused may face the death penalty in India, Pakistan, Bangladesh, Maldives and Afghanistan when the crimes committed by them meet the threshold of "most serious crimes." Still, blasphemy, adultery, or drug trafficking don’t necessarily meet the threshold of "Most serious crimes" but are nevertheless punishable by death in Pakistan and many other Islamic countries, including Maldives and Afghanistan.

Judicial interpretation

The Supreme Court of India, in the landmark case of Bachan Singh v. State of Punjab (1980), formulated the doctrine of “rarest of rare,” holding that life imprisonment is the rule while the death sentence is the exception. The Court held that the death penalty could be imposed “when [society’s] collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining the death penalty.”

Lord Denning of England once argued that, “The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.”

Collective conscience

It would set a wrong precedent if a section of society starts defining the metric of ‘collective conscience’ and determining the judicial fate of defendants through street protests.

The ‘collective conscience’ metric for awarding the death penalty is problematic. If a judge feels that the collective conscience is so shocked that it is desirable to inflict death penalty on the accused, then can he hear the case entirely on merits? Will the judge ensure a fair trial and presume the accused deserve some other sentences? Is it appropriate to determine the wave of collective conscience from the narratives shaped by street protest, reels, or social media? 

After all, in the digital age of the 21st century, social media, news channels, reels and televisions all have the potential to amplify the outrage. In turn, reality can be manufactured, distorted, and disseminated overnight.

The offence of rape is, of course, an unpardonable offence. Such an act can leave an everlasting psychological impact on the victim. Rapists could instead be punished with rigorous life imprisonment until the convict's last breath. Section 41 of the National Penal Code, 2017 could be amended to provide that life imprisonment shall always be rigorous in nature. A separate provision could also be inserted stipulating that, in cases of rape, convicts shall be sentenced to life imprisonment for the remainder of their natural lives.

The concept of collective conscience is vague and is in want of healthy discourse in Nepal.

Beyond the specific issues with ‘collective conscience’ rule, many believe that the taking of a life by the judiciary is simply unjust and inhuman and that its continued practice is a stain on a society founded on humanitarian values. In addition to this, death penalty regime is a sheer violation of Article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights. Interestingly, India, Pakistan, Maldives, and Afghanistan are signatories to these conventions.

Although the task remains unfulfilled, the second Optional Protocol to ICCPR was entered into force in 1991 with the aim of abolishing the death penalty globally. However, the instrument only succeeded to disallow capital punishment in the case of minors and pregnant women.

Despite this, Maldives has enacted a law under which the death penalty can be applied to a minor who commits intentional murder or another serious crime.

Way forward

Article 77 of the Rome Statute favours life imprisonment, not the death penalty. Even as the global trend roots for abolition, states imposing the death penalty justify their stated position.

They appeal to each state’s sovereign right to determine its own laws, as enshrined under Article 2(7) of the UN Charter, which embodies the principle of non-intervention in the domestic affairs of a state. They also argue that the death penalty is exercised in rare cases and insist that their legal systems guarantee the rule of law and provide ample procedural safeguards for a fair and speedy trial.

However, abolition is now an accepted principle of human rights jurisprudence, and the sovereignty defence is simply a frivolous justification.

Ultimately, the death penalty may not be a strong enough deterrent; rather, effective law and order are. Although a section of population in Nepal has, of late, voiced support for the death penalty for crimes involving women and children or for rape, a move toward a more enlightened approach could be initiated, and the government could enact a (mandatory) law providing that rapists be awarded life imprisonment until their last breath.