The Law Commission of India has recommended the abolition of the death penalty for all crimes except terrorism-related offences and waging war. Noting that the ultimate goal is absolute abolition which could be brought about through a moratorium or law, the Commission has however suggested that a debate on death for terror be left to Parliament.
On Monday, his last day in office, Law Commission chairperson Justice A P Shah presented the Commission’s 262nd Report, titled ‘The Death Penalty’, to law minister Sadananda Gowda. The final report was not passed unanimously; three of the Commission’s ten members, including the Law Secretary and the Secretary of the Legislative Department who are government representatives, did not sign the report and submitted dissent notes, while the signature of a fourth with concerns could not be obtained.
|Lease of life|
|‘Moratorium or abolition Bill can be alternatives’|
|The reason: Death penalty doesn’t serve goal of deterrence.|
|Differing voices: The recommendation by 10-member panel was not unanimous with a few supporting retention of capital punishment.|
The majority however supported the final report, which was of the view that the Law Commission needed to make a clean break from the ‘rarest of rare’ principle, which it felt was necessarily arbitrary and judge-centric. “[T]he administration of the death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable,” the Commission observed. The continued administration of the death penalty raises issues of miscarriage of justice, errors as well as the plight of the poor and disenfranchised in the criminal justice system, the Commission said. Deterrence was a myth, and retribution could not be reduced to vengeance, it observed, even as the restorative and rehabilitative aspects of justice were lost sight of.
(Compiled by Law Commission from various sources)
At a press conference, Justice Shah was at pains to reiterate that an opposition to the death penalty did not amount to opposition to punishment; “The idea of death penalty has in its core taking of life as punishment. The opposition is to that idea and not to the idea of due and just punishment including punishment of imprisonment for life,” the Commission said. In addition to the principle of reformation for the convict, the report also recommends greater rehabilitative and restorative justice for the victims of crime. “[V]ictims should not be made to accept the idea of death penalty as the only measure of justice,” the Commission says.
Ultimately, it is logical that India move towards absolute abolition, the Commission says. For that, it recommends first abolishing the death penalty for all crimes other than terrorism-related offences and waging war, and a more informed debate about total abolition. While not suggesting a particular method, it mentions a moratorium or an abolition Bill as options.
BJP, Congress cautious
The Law Commission’s report on the death penalty advocating abolition of the provision except in terror cases met with a cautious response from the Congress and the BJP.
Congress MP Shashi Tharoor, who had deposed before the Commission advocating the abolition of the death penalty, however, said that he had hoped for a finding of “abolition without exemptions.”
Commerce Minister Nirmala Sitharaman told that the BJP was yet to take a look at the report. “It has been submitted to the Law Ministry today, and we haven’t had time to go through the report. We will be able to take a considered view only after the party leadership goes through the report.”