Death Penalty should be abolished except for terror cases, waging war – Law Commission

Weeks after Yakub Memon’s hanging, the Law Commission of India has recommended the abolition of the death penalty for all crimes other than terror offences and waging war..On the last day of its functioning, the Commission, headed by Justice AP Shah, held a conference to release its 262nd Report on the Death Penalty..The 242-page Report delved into the Law Commission’s previous stance on the death penalty in its 35th Report and how the fact that things have changed drastically since then has forced a rethink on the issue. After lengthy deliberations, the Commission found that the concept of the death penalty, even when the ‘rarest of rare’ doctrine was applied, was constitutionally unsustainable..However, this stance was not uniformly accepted by the members of the Commission. Three members – former Delhi High Court judge Justice Usha Mehra, Law Secretary PK Malhotra and Sanjay Singh, Secretary of the Law Department have chosen to dissent..Among the reasons for recommending the abolition was the fact that there was no research to suggest that handing of the death sentence had a deterrent effect. It was also noted that life imprisonment in India lasts for the life of the convict and that remissions are given only in rare cases, that too only after 30-60 years of the sentence was served..The Commission also noted that though retribution plays an important role in criminal justice, it could not be reduced to vengeance..“The notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system…”.Instead, the Commission said that it was essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims. It also suggested that police reforms and witness protection be taken up by the government expeditiously..The Commission also recognized arbitrary sentencing in death penalty cases as an issue..The Report quotes the Supreme Court case of Santhoshkumar Bariyar thus:.“…extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.”.The Commission also referred to National Law University Delhi’s Death Penalty Project statistics in the Report. According to the findings of the project, a majority of death row convicts in India are from economically vulnerable sections of society..Further, the Commission noted that the clemency powers of the President and Governor under Articles 72 and 161 have not been exercised to act as a safeguard to prevent miscarriage of justice. The Report states,.“The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers.”.While waxing eloquent on the need to remove arbitrariness from the criminal justice system, the Commission also admitted that there was no solid justification for limiting the death penalty to terror cases. The Report stated,.“Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security.”.Read the full Report below.