Caveat stunts death penalty punishment's progressive nature

  • Hindustan Times
  • Updated: Sep 03, 2015 21:45 IST
Yakub Memon, the 1993 Mumbai serial bomb blasts convict, at a TADA court. (Kunal Patil/HT file photo)

It is a positive and progressive move had it not been for the caveat. The Law Commission of India, headed by former Chief Justice of the Delhi high court, Justice Ajit Prakash Shah, on Monday submitted its report to the Union law minister, Sadananda Gowda, recommending that the death penalty be abolished for all crimes ‘other than terrorism-related offences and waging war’.

The commission pointed out that although ‘there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences will affect national security’.

The recommendations have been opposed from different quarters, including three members of the commission who refused to sign the report. The report, titled ‘Death Penalty’, rightly states that capital punishment is the extreme form of incapacitation and snuffs out the possibility of reform.

While terror-related cases are cited as an exception, the question arises: What about other perpetrators of heinous crimes, like in the December 16 gang-rape case?

For the system to work effectively after the abolition of the death penalty it is important that law and order and, more importantly, the criminal justice system work effectively. An overstretched police force and poor legal aid tilt the balance against the underprivileged and the commission’s apprehensions about the misapplication of the death penalty should be seen from this perspective as well.

The case of undertrials languishing in jails across the country for years without proper legal recourse is just one of the many examples of this.

The commission has rightly taken into consideration the international landscape regarding the death penalty. A majority of countries in the world have abolished the death penalty and as of 2014, there were only 58 retentionists. Ironically, though it is only 58 nations, since they are populous, like China, India and the United States, a majority of the world’s population potentially faces the gallows or lethal injection, as the case may be.

The law commission’s report reflects the maturity of the Indian judiciary and it is now up to our leaders to translate its recommendations into action. Complete abolition should be the goal with no exceptions made for any type of crime.

As it stands, the commission has held back from going the whole hog and doing away with what is essentially an irreversible and inhumane form of punishment.

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