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India – #DeathPenality to be abolished ? Here’s what Law Commission has to say

 

Minister of State for Home Hansraj Ahir on Wednesday said that Law Commission in its 262nd report has recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war.

death penalty, death penalty abolished, death abolished, capital punishment abolished in india, india death penalty abolished, capital punishment abolished, capital pubishment modi governmentThe report has been circulated to all state governments and union territories for seeking their views (Reuters)

The long pending issue of death penalty in India may reach an end soon. Minister of State for Home Hansraj Ahir on Wednesday said that Law Commission in its 262nd report has recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war.  “As Criminal Law and Criminal Procedure are in the concurrent list of the 7th Schedule of the Constitution, the report has been circulated to all state governments and union territories for seeking their views,” he said replying a written question.

The Union Minister was actually citing a report submitted by Commission to central government in August, 2015. The commission, headed by justice AP Shah, said that 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. However, out of the 10 members three members of the commission including two representing the Ministry of Law and Justice — Law Secretary P K Malhotra and Legislative Secretary Sanjay Singh — submitted dissent notes against the recommendation. Along with Malhotra and Singh, former Delhi High Court judge Usha Mehra who referred to the rights of “innocent victims”.

There has been a sharp spike in death sentences handed out by the lower judiciary in India in recent years.  According to a study by Delhi-based National Law University’s Centre on the Death Penalty, 136 people were sentenced to death by sessions courts last year(2016) compared to 70 the previous year (2015). The rights group have been continuously calling for abolition of death sentences.  As per the apex court’s recommendations, death sentence can only be awarded only in the “rarest of rare” cases.

The Supreme Court in Bachan Singh vs Union of India, 1980, held that the law‘s instrumentality ought not to be used to take away life except in rarest of rare cases when the alternative options unquestionably foreclosed. But, what constitutes ‘rarest of the rare’ is subject to interpretation and thus a bone of contention.

The experience in India suggests that the phrase ‘rarest of rare’ crime is loosely interpreted to award death penalty in increasing array of offences. Even the Law Commission referred to the unguided discretion of sentencing courts. Capital sentencing in India is often based on the personal predilection of judges.

The Supreme Court in Bachan Singh and other subsequent verdicts held that the subjective opinion of individual judges as to the morality, efficacy or otherwise of a sentence, particularly death sentence, cannot be ruled out. If the law panel recommendation is adopted, the ‘rarest of the rare’ crimes would be concretely defined and shall prevent its wide applications.

Studies indicate that the death penalty has failed to deter heinous crimes. The Law Commission analysis reveals that there is no evidence to conclude that the death penalty has a deterrent effect over and above life imprisonment. The absence of the deterrent effect of death penalty is because most of these crimes for which such a harsher punishment is awarded are heat-of-the-moment  crimes unlike the acts of terror that are preplanned.

None can give any guarantee that a person is not falsely implicated given the levels of corruption and inefficiency in our criminal justice system. The majority verdict of apex court in Bachan Singh also held, “… such errors of judgment cannot be absolutely eliminated from any system of justice, devised and worked by human beings …”.

court in Ravji vs. State of Rajasthan, 1996, had in fact admitted such errors. The death penalty is an irreversible punishment and can only be awarded when such a foolproof system is assured at any cost. Even if the death penalty is awarded in the rarest of rare cases like terrorism or war, judicial errors cannot be totally eliminated. Thus, adequate safeguards and checks are an imperative.

The experience of death penalty in India also suggests a class divide among those who were sentenced for this. The rich and the mighty have manipulated the system to escape the clutches of law while the poor and marginalised were served with sentence to death.

Both the blood-thirsty demand for capital punishment or bleeding-heart urge for its abolition are unwarranted. The well laid down aspects in Indian jurisprudence like the rarest of the rare case test and the test of ‘amenable to reform‘ (Law Commission of India, 2015b)  should be applied and per incuriam should be avoided in delivering judgments in such sensitive cases.

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Comment (1)

  1. K SHESHU BABU

    The proposal to abolish death penalty is a positive step towards legal eforms. The concentration of judiciary must be on ‘ reform of criminal rather than awarding death penalty

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