Saturday 29 August 2015

262 Law Commission Report on Death Penalty

  • In what will be a reversal of its earlier stand, the Law Commission of India is set to recommend abolition of death penalty in the country from the statute books, except in cases where the accused is convicted of involvement in a terror case because death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. 
  • The quest for retribution as a penal justification cannot descend into cries for vengeance
  • India is one of 59 countries where the death penalty is still awarded by courts. 
  • Issue in news after Yakub Menon Case
  • In 1962, the Law Commission, in its 35th report, had recommended retention of death penalty.
  • In 2014, the Commission was tasked by the Supreme Court to study the issue of death penalty and submit a report on it. 
    • Wide-ranging consultations on the issue where majority of the participants, including representatives of some political parties, favoured abolition of the death penalty. 
  • In its report, the Commission has pointed out that despite the landmark SC judgment in Bachan Singh versus State of Punjab — the SC laid down the “rarest of rare” doctrine and held that capital punishment should only be awarded in the “rarest of rare cases” — the application of death penalty “continues to remain 
    • excessive, 
    • arbitrary, 
    • unprincipled, 
    • judge-centric and 
    • prone to error”. 
  • The draft report also notes that “there exists no principled method to remove such arbitrariness from capital sentencing” and that not only is its arbitrary and uncertain, it is “applied disparately and disproportionately against socially and economically marginalised groups, reflecting systemic biases and structural disadvantages”. 
  • “The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistake… The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty,” the draft report states. 
  • The Commission, while recognising lack of consensus among lawmakers on the issue, has suggested a “possible approach” towards achieving the goal of abolition of death penalty. 
  • “The Commission suggests that the death penalty be immediately abolished for all crimes other than terror offences. At the same time, for terror offences a moratorium as regards sentencing and execution be immediately put in place. This moratorium can be reviewed after a reasonable period.”  
  • Report demonstrates that contemporary penology, constitutional evolution of rule of law standards and India’s international human rights commitments render the death penalty unconstitutional
  • 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. 
  • 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 religious minorities. 
  • Commission has put the ball in Parliament’s court. 
  • While the court’s track record is mixed, its performance in protecting safeguards within the criminal justice system generally has been disappointing. 
    • Punjab: TADA during insurgency, AFSPA in J&K and the Northeast, Pota, now the UAPA and legislation on organised crime, the SC has been indulgent and deferential to the legislature while upholding draconian provisions, and in the process sacrificing civil liberties at the altar of national security. 
      • We must view the recommendation that the death penalty need not be done away with immediately for terror in this context. 
  • Its terror exceptionalism is limited to the first step and the commission is clear that we must move towards complete abolition. 
    • Terror exceptionalism feeds into the narrative that the invocation of national security is sufficient to carve out exceptions that strike at the foundations of our Constitution. 
    • This is the weakest part of the report because it provides a frail reason by merely referring to the “deep division among lawmakers”, with no further details. The commission does not tell us whether there was no such division on the death penalty for other offences or why such disagreement is relevant to its recommendations. 
  • No public opinion taken
  • No explanation for including terror
Points outside law commission report
  • SC's jurisprudence on certain procedural aspects of the death penalty (like undue delay in disposing mercy petition would amount to torture) has been far ahead of global jurisprudence, its application of the “rarest of rare” doctrine has been riddled with errors and inconsistencies. 
  • SC itself have acknowledged this error in the very manner in which the standard has been understood. 
  • The creation of the “collective conscience” and the “cry of society for justice” as relevant legal considerations in contradiction of the requirements of the “rarest of rare” standard is a legacy that the SC will struggle to undo. 
Suggestions to Commissions Report
  • Some pressing procedural protections while moving towards abolition of the death penalty for terror offences. 
  • Unanimity of all courts and judges comprising the benches therein would be necessary for the death penalty to be confirmed. 
SC on Death Penalty

Death Penalty:

Arguments against:

    1. 96 abolished, 
    2. UN Dec of Human Rights 
    3. UN resolution - global moratorium
    1. Against social contract
    2. who is being deterred/reformed?
    1. Rarest of the rare
    2. Irrevocability
    3. Aggravating and mitigating circumstances
    1. Executions decreasing, but no drastic increase in crime rates
  5. OTHERS:
    1. Restorative and reformative justice - not retributive
    2. Deterrance is a myth (Law Commission)
    3. death penalty would remain arbitrary and judge-centric and hence would be constitutionally unsustainable

[Ref: Indian Express]


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