The Law Commission of India has taken a historic step by declaring that the abolition of the death penalty must become a goal for India. It has recommended, for a start, the scrapping of the death penalty for all crimes except terrorism-related offences and those that amount to waging war against the state. The Commission’s report on the death penalty declares deterrence to be a myth, based on extensive research. It makes a clean break with the ‘rarest of the rare’ principle that was laid down in Bachan Singh vs State of Punjab (1980): that judgment noted that the application of the death penalty would remain arbitrary and judge-centric and hence would be constitutionally unsustainable. It has attempted to raise the level of discourse on the death penalty by observing that opposition to it amounts to objecting to the taking of lives, and not to all punishment as a concept. Retributive justice is important, it notes, but it must not descend to the level of vengeance, as numerous Supreme Court decisions that refer to “the conscience of the people” seem to indicate. It has sought a return to the notions of restorative and reformative justice, and urged a change in tenor, in such a manner that victims are not made to think that the death penalty is the only, best or ultimate form of punishment. Most crucially, it has placed the death penalty in the context of India’s flawed criminal justice system, noting that even safeguards such as the right to appeal and mercy petitions do not provide foolproof protection from miscarriage of justice, given the uneven and error-prone application of relief.
But the Commission has not gone far enough. By creating an artificial distinction between terror cases and others despite admitting that there is no penological justification for doing so, it has created an unfair hierarchy of crime and justice. It notes the death penalty is no deterrent for even a terrorist. Some of the most egregious instances of miscarriage of justice that it cites as an indictment of India’s criminal justice system relate to terrorism-related cases; the 2002 Akshardham temple attack case, for instance, in which the death penalty was imposed by the trial court and confirmed by the High Court, was based on what the Supreme Court later ruled was wholly fabricated evidence. The concerns such instances raise about the death penalty disproportionately affecting the poor and marginalised are more sharply in evidence in terrorism cases — 93.5 per cent of those on death row in terrorism cases are Dalits or those from the religious minorities. By holding itself back from recommending a total abolition, the Commission has put the ball in Parliament’s court. The government and the principal opposition are unlikely to support such an abolition at this point. It can only be hoped Parliament will complete the good work the Law Commission has begun.
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