Over 53 years after it favoured retention of the death penalty in statute books, the Law Commission of India recommended Monday that the death penalty be abolished for all crimes other than terrorism-related offences and waging war against the country. This was first reported by The Indian Express last Friday.
In its report, submitted to the government by commission chairman and former Delhi High Court Chief Justice A P Shah, the 10-member panel concluded that while death penalty does not serve the penological goal of deterrence any more than life imprisonment, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security.
However, three members of the commission including two representing the Ministry of Law and Justice — Law Secretary P K Malhotra and Legislative Secretary Sanjay Singh — submitted dissent notes against the recommendation to abolish death penalty. The third dissent note was given by Law Commission member and former Delhi High Court judge Usha Mehra who referred to the rights of “innocent victims”.
Questioning the “rarest of rare” doctraine, the panel said that administration of death penalty, even within the “restrictive environment of rarest of rare doctraine”, was constitutionally unsustainable.“After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of death penalty, even within the restrictive environment of ‘rarest of rare’ doctrine, is constitutionally unsustainable. Continued administration of death penalty asks very difficult constitutional questions… these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system,” the report stated.
Pointing out that in the last decade, the Supreme Court had on “numerous occasions expressed concern about arbitrary sentencing” in death penalty cases, the panel said, “There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardisation or categorisation of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.”
The commission also questioned the mercy petition system, provided for under the Constitution, saying, “The exercise of mercy powers under Articles 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence.”
The report stated that from January 26, 1950 till date, successive Presidents have accepted 306 mercy petitions and rejected 131.
Referring to victims of crimes, the panel said in focusing on death penalty “as the ultimate measure of justice to victims”, the restorative and rehabilitative aspects of justice are lost sight of.
It said reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the state establish effective compensation schemes to rehabilitate victims of crime.
At the same time, it is also essential, the panel said, that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.
“The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence, it is essential that a witness protection scheme also be established. The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis,” the report stated.