GS Mains Model Question & Answer: The Law Commission of India recommended scrapping of the death penalty for all crimes except terrorism-related offences and those that amount to waging war against the state. Give your arguments.

Q. The Law Commission of India recommended scrapping of the death penalty for all crimes except terrorism-related offences and those that amount to waging war against the state. Give your arguments. (12.5 Marks)

(General Studies Mains Paper II- Polity : Statutory, regulatory and various quasi-judicial bodies)

Model Answer :

The Law Commission of India has recommended, for a start, the scrapping of the death penalty for all crimes except terrorism-related offences and those that amount to waging war against the state. The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.

The Commission’s report makes a clean break with the ‘rarest of the rare’ principle that was laid down in Bachan Singh vs State of Punjab (1980): that judgment noted that the application of the death penalty would remain arbitrary and judge-centric and hence would be constitutionally unsustainable.

Retributive justice is important, it notes, but it must not descend to the level of vengeance, as numerous Supreme Court decisions that refer to “the conscience of the people” seem to indicate. It has sought a return to the notions of restorative and reformative justice, and urged a change in tenor, in such a manner that victims are not made to think that the death penalty is the only, best or ultimate form of punishment.

Most crucially, it has placed the death penalty in the context of India’s flawed criminal justice system, noting that even safeguards such as the right to appeal and mercy petitions do not provide foolproof protection from miscarriage of justice, given the uneven and error-prone application of relief.

It notes the death penalty is no deterrent for even a terrorist. 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 those from the religious minorities.

It said 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 is essential that the state establish effective compensation schemes to rehabilitate victims of crime.

" 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," the report said. By holding itself back from recommending a total abolition, the Commission has put the ball in Parliament’s court. The government and the principal opposition are unlikely to support such an abolition at this point. It can only be hoped Parliament will complete the good work the Law Commission has begun.