Law Commission Report on Death Penalty

The Law Commission of
India chaired by Justice A.P. Shah submitted its 262nd report on 31st
August 2015 on the issue of death penalty in India. The issue was referred to
the Law Commission by the Supreme Court in Santosh
Kumar Satishbhushan Bariyar v. Maharashtra, (2009) 6 SCC 498 and Shankar Kisanrao Khade v. Maharashtra,
(2013) 5 SCC 546. The Law Commission has previously in its 35th
report (“Capital Punishment”, 1967) recommended the retention of the death
penalty in India. The Supreme Court has also, in Bachan Singh v. Union of India, (1982) 3 SCC 24, upheld the
constitutionality of the death penalty, but confined its application to the
‘rarest of rare cases’, to reduce the arbitrariness of the penalty. However,
the social, economic and cultural contexts of the country have changed
drastically since the 35th report and arbitrariness has also
remained a major concern in the adjudication of death penalty cases in the 35
years since the foremost precedent on the issue was laid down. Accordingly realizing
that death penalty is an issue of a very sensitive nature, the Commission
decided to undertake an extensive study on the issue.

The Commission concluded
after studying the issue extensively that the death penalty does not serve the
penological goal of deterrence any more than life imprisonment. In fact it fails
to achieve any constitutionally valid penological goals. The Law Commission
also concluded that in focusing on death penalty as ultimate measure of justice
to victims, the restorative and rehabilitative aspects of justice are lost
sight of. It was also concluded that extremely uneven application of Bachan Singh has given rise to a state
of uncertainty in capital sentencing law which clearly falls foul of
constitutional due process and equality principle. Therefore, the
constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death
sentences from being arbitrary and freakishly imposed. And there exists no
principled method to remove such arbitrariness from capital sentencing.

Lack of resources,
outdated modes of investigation, over-stretched police force, ineffective
prosecution, and poor legal aid are some of the problems besetting the system.
Death penalty operates within this context and therefore suffers from the same
structural and systemic impediments. The administration of capital punishment
thus remains fallible and vulnerable to misapplication. It was also concluded
that the exercise of mercy powers under Articles 72 and 161 have failed in
acting as the final safeguard against miscarriage of justice in the imposition
of the death sentence. The Supreme Court has repeatedly pointed out gaps and
illegalities in how the executive has discharged its mercy powers. When even
exercise of mercy powers is sometimes vitiated by gross procedural violations
and non-application of mind, capital punishment becomes indefensible. Further
the death row phenomenon is compounded by degrading and oppressive effects of
conditions of imprisonment imposed on the convict, including solitary
confinement, and the prevailing harsh prison conditions. The death row
phenomenon has become an unfortunate and distinctive feature of the death
penalty apparatus in India which breaches the Article 21 barrier against
degrading and excessive punishment.  

Thus the Commission has
recommended that the jurisprudence on the issue has proceeded from removing the
requirement of giving special reasons for imposing life imprisonment instead of
death in 1955; to requiring special reasons for imposing the death penalty in
1973; to 1980 when the death penalty was restricted by the Supreme Court to the
rarest of rare cases; this shows the direction in which we have to head. Thus the
time has come for India to move towards abolition of the death penalty. The commission has also recommended
that although there is no valid penological justification for treating
terrorism differently from other crimes, however, given the concerns raised by
the law makers that the abolition of death penalty for terrorism related
offences and waging war, will affect national security, there is no reason to
wait any longer to take the first step towards abolition of the death penalty
for all offences other than terrorism related offences. 

Finally the Commission
recommended that it is essential that the State establish effective victim
compensation schemes to rehabilitate victims of crime. At the same time, it is
also essential that courts use the power granted to them under the Code of
Criminal Procedure, 1973 to grant appropriate compensation to victims in
suitable cases. The voices of victims and witnesses are often silenced by
threats and other coercive techniques employed by powerful accused persons.
Hence it is essential that a witness protection scheme is established. The need
for police reforms for better and more effective investigation and prosecution
has also been universally felt for some time now and measures regarding the
same need to be taken on a priority basis.

-Law Commission of
Source: Legal news India

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