The Law Commission suggested in its 262nd report that the abolition of the death penalty should be India’s goal. The panel, in its 242-page report submitted to the government and the Supreme Court on Monday, recommended abolition of death penalty for all crimes other than terrorism-related offences and waging war against the country.
Commission chairman and former Delhi High Court Chief Justice A P Shah along with 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. Justice Shah said the law commission report is intended “to contribute to a more rational, principled and informed debate on the abolition of the death penalty for all crimes” but hoped that the movement towards absolute abolition will be swift and irreversible.
India has ratified the International Covenant on Civil and Political Rights, which requires parties to abolish the death penalty. “When the International Criminal Court (ICC), for offences like genocide, war crimes and crimes against humanity, cannot award the death penalty, we have to ask ourselves if we still want to continue with it,” Shah said.
The commission 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 doctrine of the rarest of rare was also questioned and the panel said that administration of death penalty, even within the “restrictive environment of rarest of rare doctrine”, 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,
Justice Shah cited several judgments of the apex court which had observed even the selection of “rarest of rare” cases has become “judge-centric, arbitrary and unprincipled”. He quoted the 2009 decision of the SC in the Bariyar case where the judges observed that “the threshold of the rarest of rare cases has been most variedly and inconsistently applied by various high courts as also this court. This has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of Constitutional due process and equality principle”.