The Law Commission in its 262nd report has finally come with the verdict of abolishing Death Penalty from Indian criminal code with the exception of ‘Terrorism.’ Bidding goodbye to a penalty that has been used across the ancient, medieval and modern age certainly requires much deliberation. Various reasons were offered by A P Shah, the head of the Commission, while deciding in favour of the abolition.
Every human have the right to live and it is a universal and inalienable right. State does not have the right to kill anyone. The theoretical debate is mainly centered on this proposition. Nevertheless, what about those who constitutes a threat to the normal life of the people? Social contract theory propounds that state have a legal obligation to protect the lives of its citizen. Protection should stretch enough to guard the life and also to uproot any fear for life. If the actions of a person are a threat to the society and he is not showing any recidivist tendencies, it is very much legal for the State to provide the death penalty for the larger interest.
The next argument was that death penalty failed in its purpose of creating deterrence among the masses. The deterrence power of the death penalty might not be palpable when it exists in the penal code. But, as Dr. Sanjay Singh, the dissenting voice in the Commission recorded,
“if death sentence is abolished, the fear that comes in the way of people committing heinous crimes will be removed, which would result in more brutal crimes. All sentences are awarded for the security and protection of society and peaceful living of the people. Whoever committing a pre-meditated heinous crime…should not be allowed to go with life imprisonment…as they do not deserve for the same.”
The majority viewed in the report that focusing on the death penalty as the ultimate measure of justice to the victims” makes us lose sight of the restorative and rehabilitative aspects of justice. Restorative justice was never ignored by our Indian Penal Code. Death penalty was often viewed as the last resort. During the colonial days and even after independence, it was perceived that death penalty was the ideal punishment for murder. The amendment of CrPc in 1956 on the Section 367(5) required the judges to provide reasons if death penalty was not provided in a murder case and not vice versa. But, today, in the light of the judicial interventions, the courts award death only to rarest of the rare cases. This shows that our criminal process want to honour the retributive justice system except in exceptional circumstances.
But, if the doctrine of the ‘rarest of the rare cases’ has been very subjective and over-dependent on judges discretion – which has been at many times been very flawed – the mistake is with the judicial process not with the penalty per se. This again, it is an unnecessary worry. It is unfair to state that none of the cases that comes before a court is influenced by the judges’ personal preferences. The dissenting opinion of the report given by P K Malhotra states, “to err is human. Almighty alone is the dispenser of absolute justice. Judges of the highest court do their best, subject of course to the limitation of human fallibility.”
It is an ideal vision to imagine a world where absolute justice is served by human court. Judgments do err and justice is denied. For instance, we see undertrial prisoners piling up in our prisons and some of them, never came out of the prisons although they were charged for petty offences. This, too, is a brutal end like death penalty.
Otherwise also, when we are talking about injustice by awarding death penalty, we should consider whether other penal provisions can replace death penalty in the heinous crimes. If life imprisonment is awarded to a murder of rarest of rare case and an ordinary murder, won’t it be a huge injustice. In a recent case, the Supreme Court further observed, “Most of the prisoners sentenced to life imprisonment get out of jail after 14 years as government remits the rest of the sentence. And general public thinks that life imprisonment is only for 14 years. If convicts are awarded life sentence even in brutal and heinous crimes, they come to court and ask for bail during pendency of their appeal against conviction if they have served five or more years in jail on the ground that life sentence is only for 14 years. Is it not incongruous?”
Also, from an economic perspective, one should realize that it is also impossible for the State to finance the entire tenure life imprisonment of serious offenders like Ajmal Kasab. Why should the tax-payers money be spent on criminals?
Nevertheless, as death sentence is a grave punishment to give, our penal process has provided various options to review the decision of the judges. The appeal process and the clemency powers with the Executive body are weapons to reduce the fallibility in the human judgments. If the mechanism is flawed, it should be corrected. It is not rational to abolish the penalty per se.
Finally, the Law Commission provided an exception to the abolition to death penalty and that is terrorism. The first question is what crimes are within the ambit of terrorism? It is very subjective, indeed. Terrorist for one person might be a martyr for another like Osama Bin Laden and the other advocates of jihad and Lashkar-e-Taliban. Besides that, what if an offendor commits any other offences in the IPC that shocks the conscience of the people just like the way a terror crime? For instance, the gang rape of Nirbhaya put our country to a standstill just like how it was during the time of 26/11 attacks. There is another possibility. After 20 years, what if a new offence emerges that is graver than terror crimes? Can death penalty be awarded to it if our legislature take a short – sighted view as our Law Commission did? Ultimately, the essence of our Law Commission’s suggestion is that the award of death penalty depends on the width of the definition of Terrorism. Arbitary? Indeed.
 Law Commission of India, Report No. 262 (August, 2015)
 Law Commission of India, Report No. 262 (August, 2015)
 Law Commission of India, Report No. 262 (August, 2015).
 If we end death penalty, shouldn’t life term be till death? Supreme Court, Lexkhoj, (September, 25, 2015), https://lexkhoj.wordpress.com/2015/09/25/if-we-end-death-penalty-shouldnt-life-term-be-till-death-supreme-court/