First of all, let me begin by strongly applauding the landmark 262nd report of Law Commission titled “The Death Penalty” which had recommended abolishing of death penalty in the country. A 272-page draft report of the Law Commission, circulated among members, favoured speedy abolition of the death penalty from the statute books, except in certain cases where the accused is convicted of involvement in a terror related offence and waging war against the country as practiced in countries like the United Kingdom. To my mind, this is undoubtedly the most landmark recommendation made by the Law Commission ever since it started making recommendations more than 60 years ago!
Let me point out here that the Law Commission of India received a reference from the Supreme Court in Santosh Kumar Satishbhushan Bariyar v Maharashtra [(2009) 6 SCC 498] and Shankar Kisanrao Khade v Maharashtra [(2013) 5 SCC 546], to study the issue of the death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject.” May I also add here that last year, the Commission had been tasked by the Supreme Court to study the issue of death penalty and submit a report on it. The Commission held wide-ranging consultations on the issue where majority of the participants, including the representatives of some political parties favoured abolition of the death penalty.
This is not the first time that the Law Commission has been asked to look into the death penalty. The 35th report on “capital punishment”, notably is a key report in this regard. In 1962, the Law Commission, in its 35th report, had recommended the retention of the death penalty in India. But we must not be oblivious of the glaring fact that since 1962 and 2015 there is a gap of 53 years which is quite a long period and much water has flown under the bridge in last so many years!
It is imperative to bring out here that at the end of 2014, 98 countries were abolitionist for all crimes, seven countries were abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140 countries in the world abolitionist in law or practice. The list of 140 countries include three that formally abolished the death penalty in 2015, i.e., Suriname, Madagascar and Fiji.
It is worth noting that the Supreme Court has also, in Bachan Singh v UOI [AIR 1980 SC 898], upheld the constitutionality of the death penalty, but confined its application to the ‘rarest of rare cases’, to reduce the arbitrariness of the penalty. Be that as it may, what cannot be lost sight of is that the social, economic and cultural contexts of the country have changed drastically since the 35th report. We must also pay attention to the indisputable fact that arbitrariness has 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.
In its report submitted to the government by the then Law Commission Chairman and former Delhi High Court Chief Justice AP Shah, the panel concluded that while death penalty does not serve the penological goal of deterrence any more than life imprisonment, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security. Law Commission says 7-3 in report to Government that abolish death penalty and retain it only for terrorism related offences and waging war against the country. One has to acknowledge here that terrorists can under no circumstances be exempted from death penalty as they are a potent threat not to just one or few individuals like rapists, dacoits and other ordinary criminals but pose the most serious threat to the very existence of our great nation!
I am happy to note that the Law Commission too has appreciated that death penalty should not be abolished for terror related offences and thus endorsed what my best friend Sageer Khan once rightly said to me way back in 1994 that, “An ordinary criminal like a rapist or a dacoit or robber or murderer never goes to Pakistan or any other foreign country for getting the best possible training on how to commit rape or dacoity or robbery or murder but a terrorist always go and gets such best possible training to commit terror acts in various terror training camps. Ordinary criminals attack and affect adversely either one or few persons but in case of terrorists things are quite different because terrorists don’t attack just one or few individuals rather they attack and affect adversely our nation as a whole whom they want to destroy completely. A terrorist always declares war against the nation but an ordinary criminal never does so. A terrorist always gets all types of aid from foreign countries but an ordinary criminal gets no such help. An ordinary criminal will never attack national symbols like Parliament, Red Fort, Supreme Court but terrorists always dream of attacking such places and sometimes have been able to partially attack them also and yet our Indian politicians hold talks with them only and pass resolution in their favour and not for ordinary criminals. An ordinary criminal will never want to attack our nuclear installations but a terrorist always aspire to do so that the entire nation that is India itself gets destroyed in the process! An enemy soldier during war attack our army soldiers but terrorists are worse than them as they rarely attack men in uniform and always enjoy attacking innocent people especially pilgrims to holy shrines and still many of our leaders plead mercy for them . Do they deserve mercy? No way!”
We all are fully aware of the huge international embarrassment our country had to face when terrorists had captured an aeroplane at gun point in 1999 and how Maulana Masood Azhar who later founded dreaded terror organization Jaish-e-Mohammad which was responsible for not only attacks on Parliament but also many other big terror attacks, and other terrorists had to be released to ensure the safety of those whom terrorists had taken hostage! Still should terrorism be treated as “ordinary crime” and terrorists be treated as “ordinary criminals”?
Needless to state, terrorists can attack nuclear installations and destroy our whole nation as former PM Dr Manmohan Singh had very rightly pointed out while he was PM! Moreover, terrorists gets all type of rigorous training from Pakistan and other hostile nations on how best to destroy India and are armed to the teeth unlike other ordinary criminals like rapists, dacoits or other criminals who are not entertained at all nor given any help in committing any crime of rape, dacoity etc! Yes, if they agree to become terrorist then they will be given training on how to place bomb at crowded places in trains, markets etc to kill maximum Indians and also taught how to avoid security and target sensitive places like Tehri dam which if attacked successfully can destroy many cities as water will submerge them all and our national capital Delhi too will get submerged! This explains why death penalty has been recommended to be retained only for terror related offences!
On the issue of death penalty on terror offences, the Commission, after a wider consultation, has come to a conclusion that it is for the legislature to decide whether it wants to retain death penalty for terror offences as it involves sensitive issue of national security. The Government is not in support of complete ban on the death penalty. I too favour death sentence but only and only for terrorists and want that this “talks, dialogues, ceasefire sham” with terrorists and according VVIP status to them must immediately stop and they too should be treated like others!
We are also aware that on 18-12-2007, the United Nations General Assembly adopted Resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty. India is one of the 59 countries where the death penalty is still awarded by courts. The death penalty became a raging topic for discussion and was debated extensively in the run-up to the July 30 hanging of Mumbai blasts convict Yakub Menon. The draft report hopes that the “movement towards absolute abolition will be swift and irreversible.”
In its draft report, the Commission has observed: “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.” In its report, the Commission has pointed out that despite the landmark Supreme Court judgment in Bachan Singh versus State of Punjab – the Supreme Court laid down the “rarest of rare” doctrine and held that capital punishment should only be awarded in the “rarest of rare cases” – the application of death penalty “continues to be remain excessive, arbitrary, unprincipled, judge-centric and prone to error”.
The draft report notes that “there exists no principled method to remove such arbitrariness from capital sentencing” and that not only is its arbitrary and uncertain, it is “applied disparately and disproportionately against socially and economically marginalised groups, reflecting systemic biases and structural disadvantages”. No one can disagree with this and this alone explains why the Law Commission strongly recommended abolition of death penalty in all cases except terror cases. The draft report also states that, “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 miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty.”
The Commission, while recognising lack of consensus among lawmakers on the issue, has suggested a “possible approach” towards achieving the goal of abolition of death penalty. It also noted that, “The Commission suggests that the death penalty be immediately abolished for all crimes other than terror offences. At the same time, for terror offences a moratorium as regards sentencing and execution be immediately put in place. This moratorium can be reviewed after a reasonable period.”
The Law Commission in its latest report concluded that, “Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. It goes without saying that the notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system. It also merits no reiteration that capital punishment fails to achieve any constitutionally valid penological goals. In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. 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 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 also be established.”
To conclude, I fully, firmly and finally support the 262nd report of Law Commission landmark recommendation of abolishing of capital punishment for all offences except terror related offences. I too very strongly feel that any leniency for terror related offences will be self-defeating. We saw recently how a terror organization named Taliban raised, trained and armed by Pakistan has now ran over Afghanistan and has assumed power there! The Law Commission itself in its latest 262nd report admitted that concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. It is our long term national interests which will be harmed most. This under no circumstances must be ever allowed because nobody can be above the nation and the human rights of terror accused individuals cannot be above our national interests under any circumstances! Never!