The Law Commission on Monday recommended abolition of the death penalty in all but terrorism and sedition cases, in line with the “evolving standards of human dignity and decency”, signifying a more nuanced legal approach amid a national debate on capital punishment.
After the issue hit the headlines recently over the execution of 1993 Mumbai blasts convict Yakub Memon, the commission noted that capital punishment failed as a deterrent and it was retributive justice which was “indefensible”, though it must be retained for terrorism-related cases in the interest of national security.
“The notion of ‘an eye for an eye, a tooth for a tooth’ has no place in our constitutionally mediated criminal justice system,” a nine-member panel of the Law Commission said in its 262nd report and added that time had come for India join the 140 countries that have abolished the death penalty, recommending a phased abolition.
Though the government has received the report, the recommendations are not binding on it. Many of the panel’s past reports are gathering dust.
The commission analysed and relied upon many orders from the Supreme Court to confirm its findings that “there exists no principled method to remove such arbitrariness from capital sentencing”. It added that a lack of resources, poor investigations, and ineffective prosecution and legal aid were problems plaguing the judicial system.
“Continued administration of death penalty asks…questions related to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system… administration of death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable,” it said.
Three of the nine panel members recorded their dissent to the report. Justice (retd) Usha Mehra, a full-time panel member, and both the ex-officio members -- law secretary PK Malhotra and legislative secretary Sanjay Singh -- supported retaining the death penalty.
The commission’s head, Justice AP Shah, who retired on Monday, noted in the report that the irreversible punishment was open to human error, even at the stage of clemency and mercy powers.
“Even the exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind,” the report said, adding that “safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment”.