Law Commission recommends abolition of death penalty, except in terror cases

New Delhi: The Law Commission on Monday recommended by a majority "swift" abolition of death penalty except in terror-related cases, noting it does not serve the penological goal of deterrence any more than life imprisonment.

The recommendation by the 9-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment.

In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the "abolition of death penalty in all respects in the very near future, soonest."

The panel, while refusing to recommend any single model for abolishing death penalty, said, "the options are many -- from moratorium to a full-fledged abolition bill. The Law Commission does not wish to commit to a particular approach in abolition. All it says is that such a method for abolition should be compatible with the fundamental value of achieving swift and irreversible, absolute abolition."

While supporting death for those convicted in terror cases and for waging war against the country, the report, 'The death Penalty' said that although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security.

The panel also questioned the "rarest of rare" doctrine in awarding death to convicts.

"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 said.

One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members -- Law secretary P K Malhotra and Legislative Secretary Sanjay Singh gave their dissenting notes.

The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.

Read: Death penalty for heinous crimes can't be dubbed outrageous: Supreme Court

Justice Mehra said, "Recommending blanket abolition of death sentence or moratorium on death penalty in heinous crimes is not an appropriate course particularly keeping in view the circumstances prevailing in our country."

Registering his dissent, Law Secretary Malhotra said Parliament in its wisdom has prescribed death penalty only in heinous crimes. "The need of the hour is to retain it...We have a vibrant judiciary which is respected world-over. We should have faith in the wisdom of our judges that they will exercise this power only in deserving cases for which the law is well laid down in various judgments..."

Legislative Secretary Sanjay Singh maintained the panel should not recommend something, which has the effect of preventing the state from making any law in the interest of the sovereignty and integrity of the country.

Asked whether the dissent by the two government nominees will have a bearing on the government's decision on the issue when it examines the recommendations, Commission Chairman Justice (Retd) A P Shah said the report has been prepared to enable a debate on the subject when two private members' bills -- one on moratorium and another on abolition of death sentence -- are moved in Parliament. "It is not meant for immediate implementation," he said.

While supporting abolition of capital punishment, the panel said in the last decade, the Supreme Court has on numerous occasions expressed concern over arbitrary handing down of death sentence.

"The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied."

Dwelling on the issue of clemency, the report said the exercise of mercy powers under Articles 72 and 161 of the Constitution "have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence."

It said the apex court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. "When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.

"Safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment," the report said.

Quoting data available from a variety of sources, the report said between January 26, 1950 and till today, 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 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 said.