The Law Commission of India is set to recommend the abolition of the death penalty, except in terror-related cases. The draft report comes a few weeks after the entire nation was divided over the execution of 1993 Mumbai blast convict Yakub Memon. The Law Commission’s report clearly stipulates that the “movement towards absolute abolition will be swift and irreversible”, except in cases where the accused is convicted of his/her involvement in terror-related activities. According to news reports, the draft copy of the Law Commission’s recommendations, compiled under the supervision of Justice (retired) AP Shah, is set to be submitted to the Centre early next week.
Reports go on to suggest that the draft report was compiled after weeks of consultations with various stakeholders, including representatives of political parties, most whom reportedly <g data-gr-id="47">favoured</g> its abolition. There are two fundamental points the draft report makes, surrounding the use of the death penalty. “The 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,” it said. The Indian establishment has executed three people in the last decade. Various courts have sentenced more than 1300 convicts to death. Has it deterred the crime rate? The answer is a resounding no.
The report also presents the glaring flaws of the “rarest of the rare doctrine”. According to figures stated by Amnesty International, as of April 2015, 270 convicts were kept on death row and 64 sentences were handed down over the past year alone. The report goes on to state that the application of the death penalty has been “excessive, arbitrary, unprincipled, judge-centric and prone to error”. It must also be noted that increasingly only the poorest, most isolated and socially hated few, with no clansmen to speak for and whose cases high-profile activists won’t defend, will go to the gallows. In other words, according to the report, there are systemic biases against minorities and marginalized groups.
On the one hand, Sikh terror convicts Devinder Singh Bhullar and Balwant Singh Rajoana live on though the apex court has already confirmed their sentences. Tamil parties have weighed in quite effectively for Rajiv Gandhi’s killers because they are Tamil. On the other hand, the same divided public opinion will be united like a lynch mob when it comes to common hate figures. However, there is one section in the draft report, which captures the fundamental problem with the death penalty: “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 the miscarriage of justice arising from the arbitrary, unfair or wrongful exercise of the death penalty.” Once a sentence is handed down, there is no turning back since the “exercise of mercy powers” has also failed time and again. The time for a broader public debate on the death penalty has now arrived, especially with the release of the Law Commission’s latest report.
One of <g data-gr-id="54">the most fascinating</g> aspects of the Law Commission’s reports is the exemptions made for terror-related cases. However, even in terror-related cases, there has been a great deal of discrimination. The examples of Bhullar and Rajoana on one side and Memon on the other are <g data-gr-id="52">testament</g> to this fact. Nonetheless, the Commission has suggested a moratorium on death sentences for such convicts. Historical precedence, however, tells us that it will not work. In a fascinating account, a senior journalist recounts how the Indian National Congress took a complete a U-turn on the death penalty between the hanging of freedom fighter Bhagat Singh and his comrades in 1931 to the assassination of Mahatma Gandhi in 1948, once India gained its Independence. It was on March 23, <g data-gr-id="56">1931,</g> when the British government sent Bhagat Singh and his comrades Sukhdev and Rajguru to gallows for their actions against the British Imperial government.
In its three-day Karachi session that began a week later, the Indian National Congress passed a series of resolutions, which included the abolishment of the death penalty once India gained its Independence. Clauses inserted into the Karachi resolution became something of a foundation upon which the modern Indian Constitution was founded. However, once the Constituent Assembly sat down to deliberate on the issue towards the end of 1948, the mood among Congress leaders had drastically changed after the assassination of Mahatma Gandhi earlier that year. The national consensus on the death penalty had completely turned on its head. Similarly in Pakistan, after the recent horrific attack on a Peshawar school attack last December, Islamabad lifted its moratorium on death sentences. Therefore, even if the Indian establishment decided to do away with the death penalty, it always can make a comeback.