Report No. 262
H. Other important issues
(i) Public Opinion
4.10.1 An important reason often cited by governments for retaining the death penalty is that public opinion demands the same. The 35th Report of the Law Commission also considered public opinion as an important factor in the context of the death penalty.378
378 The 35th Report apprehended that if the law were to go against public opinion, it is possible that the public would indulge in acts of revenge, by killing or injuring offenders themselves. (See Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 265 (22).)
4.10.2 One could argue that public opinion is indeed a factor to be considered while making important decisions which effect the population at large. However, it is not necessary for the government to follow public opinion on every issue. Indeed, the Government has a duty to drive public opinion towards options which support fairness, dignity and justice, which are constitutionally enshrined ideals. It is useful to quote the former Un Human Rights High Commissioner, Navi Pillay, who says:
Human progress does not stand still. Popular support for the death penalty today does not mean that it will still be there tomorrow. There are undisputed historical precedents where laws, policies and practices that were inconsistent with human rights standards had the support of a majority of the people, but were proven wrong and eventually abolished or banned. Leaders must show the way how deeply incompatible the death penalty is with human dignity.379 (Emphasis supplied)
379 Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights Commission 9 (2014).
4.10.3 There are multiple instances where governments around the world have abolished the death penalty contrary to current public opinion, both in Asia and in the West.380 Very few of the current abolitionist countries would have been able to ever abolish the death penalty had they waited for public opinion to change on the issue.381 Moreover, once the death penalty was abolished, the legal framework caused the public opinion to change radically on the issue, and now the death penalty is thought of as unthinkable.382
The Indian experience of laws governing social issues, such as Sati, dowry prohibition, untouchability, and child marriage is testament to the fact that the government has the power to lead public opinion even against deeply entrenched cultural norms and indeed an obligation to do so when faced with issues concerning human dignity and equality.
380 Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights Commission 9 (2014).
381 Jon Yorke, Against The Death Penalty 262 (1st ed. 2008).
382 Eg. France and UK; See also Roger Hood Speech at the Law Commission National Consultation on 10 July, 2015.