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Retribution cannot be reduced to vengeance says the Commission's report

Law Commission hopes for abolition of death penalty for all cases including terrorFlickr Image by Fraser Mummery
news Monday, August 31, 2015 - 16:52

In a significant move, the Law Commission of India in a report submitted to Union Law Minister Sadananda Gowda has recommended that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

The commission headed by former Chief Justice of the Delhi High Justice AP Shah has concluded that the death penalty does not serve the penological goal of deterrence any more than life imprisonment.

It has excluded terrorism related offences and waging war from the recommendations for now in order to address concerns by law makers that such a step could affect national security.

Life imprisonment vs. Death sentence

The Commission notes that life imprisonment is sufficient detriment as life imprisonment under Indian law means imprisonment for the whole of life subject to certain remissions.

Retribution vs. Vengeance

Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.

Problems ailing justice system not being addressed

The 251 page report also concludes that reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It calls for police reforms and effective witness protection schemes.

Death sentences arbitrarily handed out by courts

The commission makes a mention of the Supreme Court’s quandary over arbitrariness in handing over death sentences and the lack of a principled method to remove such arbitrariness from capital sentencing. ‘The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied.’

Clemency has not acted as the final safeguard

The report says that though Governor and President has powers to exercise clemency,  even that process has been vitiated by gross procedural violations and non-application of mind. And in such a scenario, capital punishment becomes indefensible says the commission.

Extreme agony death row prisoners are subjected to

Long delay in trials, appeals and clemency paves way for a convict on death row to suffer extreme agony, anxiety and debilitating notes the Commission.

India is amongst small group of countries that use death penalty

The Commission has also concluded that India is a part of a ‘small and ever dwindling group of nations’ using the death penalty.’

Death penalty for terrorist related crimes and waging war against the nation

The Commission notes that the international trend towards successful and sustained abolition confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.  

The report states that abolishing death penalty for all offences other than terrorism related offences should only be the first step. The report ends emphatically saying the Commission hoped the recommendations would contribute to a more rational, principled and informed debate on the abolition of the death penalty for all crimes.

Editor's note: The Law Commission had issued a statement last week that an Indian Express story on the Commission's draft report did not reflect its final stand. The newspaper had reported that the Commission was all set to recommend that death penalty should be abolished for all crimes except terror related ones. The IE report has turned out to be accurate.

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