August,31,2015: Principle of 'rarest of rare' cannot be operated free of arbitrariness, says Law Commission of India.
The Law Commission today recommended “swift” abolition of death penalty except in terror-related cases, noting it does not serve the penological goal of deterrence any more than life imprisonment.
The recommendation by the nine-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment. In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the “abolition of death penalty in all respects in the very near future, soonest.”
The panel, while refusing to recommend any single model for abolishing death penalty, said, “the options are many – from moratorium to a full-fledged abolition bill. The Law Commission does not wish to commit to a particular approach in abolition. All it says is that such a method for abolition should be compatible with the fundamental value of achieving swift and irreversible, absolute abolition.”
While supporting death for those convicted in terror cases and for waging war against the country, the report, ‘The Death Penalty’ said that although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security.
The panel also questioned the “rarest of rare” doctrine in awarding death to convicts.
“After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable.
“Continued administration of death penalty asks very difficult constitutional questions…these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system,” the report said.
Victim compensation schemes
The commission finds it is essential that the State should establish an effective victim compensation schemes to rehabilitate victims of crime. At the same time, it added that courts may 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, it said.
Referring to the Death Penalty Research Project of National Law University, Delhi, the Commission said that out of 373 prisoners on death row in the country, over 75% belong to backward classes and religious minorities. 93.5% of those sentenced to death for terror offences are religious minorities or Dalits.Hence, the commission opines that “it appears that there are plenty of reasons, as well as empirical evidence to fear the disparate and maybe even discriminatory impact of the death penalty.”The Commission also added that the data available also suggests that the majority of death row convicts in India are from economically vulnerable sections of society.
Public opinion need not be always followed
The Commission report says that it is not necessary for the government to follow public opinion on every issue. It said “The Indian experience of laws governing social issues, such as Sati, dowry prohibition, untouchability, and child marriage is testament to the fact that the government has the power to lead public opinion even against deeply entrenched cultural norms and indeed an obligation to do so when faced with issues concerning human dignity and equality”
Clemency petition decisions Ideology/Personality driven ?
Examining the data related to Clemency petition decision by President, the Commission feels that “a death-row convict’s fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.”
The commission said “It is also distressing to note that the death row prisoners are routinely subjected to an extraordinary amalgam of excruciating psychological and physical suffering arising out of oppressive conditions of incarceration and long delays in trial, appeal and thereafter executive clemency. Despite repeated attempts by death row prisoners to invoke judicial review remedies to secure commutations on account of penal transgressions by the executive authorities, the practice of solitary confinement and delays seem to continue unabated”. Commission feels that the“death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India.”
One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members – Law secretary P K Malhotra and Legislative Secretary Sanjay Singh – gave their dissenting notes. Justice A. P. Shah, Former Chief Justice of the Delhi High Court presented Report No. 262 – The Death Penalty.
The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.
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