The debate around the death penalty in India has undoubtedly benefited from the 262nd report of the Law Commission. The report traces the use of the death penalty as a penological tool in light of statutory changes, Supreme Court judgments, as well as international trends and legal instruments since the last report on the death penalty in 1967.
The report concludes that the death penalty should eventually be abolished in India. However, the Law Commission adds an interesting caveat that the death penalty should be retained at present for terror-related offences and waging war against the state, even though there is no valid penological difference between the two.
The differentiation between terrorism and other offences is artificial and unsustainable, and the death penalty should be abolished for all offences. In order to prove my argument, I will rely on the grounds raised by the Law Commission itself, and attempt to show that there is no basis for the retention of the death penalty in terror-related cases.
In part, the report marshals evidence that abolitionist lawyers have been basing their arguments on for sometime now. It throws light on what has been previously remarked on by judges of the Supreme Court: That the death penalty is overwhelmingly awarded in cases where the accused are poor and unable to afford a lawyer, or belong to a marginal section of society. Therefore, the impact of the death penalty falls disproportionately on certain classes, castes and communities.
A case in point is Saibanna vs State of Karnataka. Saibanna Ningappa Natikar was tried and sentenced to death under Section 303 of the IPC, more than 10 years after the provision had been declared unconstitutional by the Supreme Court. However, if the terrorism vs ordinary crime justification is accepted, the problem of the impact of the death penalty falling on certain classes of people will only be exacerbated. Certain communities, as well as people residing in certain parts of India, would be exposed to the caprices of the penalty in a more entrenched, visible manner than before. Simon and others vs State of Karnataka, which the commission refers to, is another example. Alleged members of Veerappan’s gang and residents of the villages where he was active were tried and convicted under the TADA, a terror-related legislation.
Further, the Law Commission held that the judicially evolved safeguard in Bachan Singh, which held that death sentences should only be awarded in “rarest of rare cases”, has proved inadequate. In several situations, opposite conclusions have been reached based on similar facts, casting doubt on whether the rarest of rare standard is understandable and objective. One wonders how a system that is not working and is deemed unacceptable as a matter of principle may be justified and applied to a certain category of offences. If the rarest of rare categorisation does not work for ordinary crimes, one cannot argue that it will work for terror-related cases. Nor can one argue that all terror cases and all terrorist acts constitute rarest of rare crimes. Terror-related laws are sufficiently vague to include a host of activities in their ambit.
Further, as noted by the Law Commission, most anti-terror legislation provide for extraordinary procedures for investigation: Prolonged periods of continuous custody with the investigative agencies, use of confessions and statements made before investigative agencies as evidence, and reversal of the burden of proof. Where such extreme procedures are allowed, the possibility of forced confessions and, therefore, false convictions is also higher. Most terror trials in recent times have included as evidence confessions made before the investigative agencies, which could be extracted by force.
The case to abolish the death penalty in terror-related cases, in fact, seems stronger than in ordinary crimes. But the Law Commission’s recommendation seems to have been made because concerns are often raised on national security, which would seemingly be compromised if the death penalty were abolished. One may argue that this is tantamount to conceding ground to a position where national security may be used to justify any set of measures. The exercise of the death penalty, which has been proven to be arbitrary, unequal and unjust, must be rejected in totality.
The writer is assistant professor, National Law School of India University, Bangalore