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| Edited By: |Source: DNA |Updated: Sep 01, 2015, 12:29 PM IST
The Law Commission of India’s reported suggestion to gradually phase out death penalty reveals the changing mind-set of the legal community and deserves a positive response from the central government. As many as 103 countries have now abolished the death penalty, including developing countries like Brazil, South Africa and Turkey. These international changes and the rising chorus against capital punishment appear to have been recognised by the current Law Commission, which had in the past advocated retaining the death penalty. The NDA government is apparently not in agreement over a complete ban; it has been reported that two government nominees in the Law Commission may have signed dissent notes. But the Commission appears to have, at least partially, heeded the predominant responses to its nationwide consultations. The Commission has reportedly suggested that the death penalty be retained in the statute only for terror cases and that other heinous offences be punished with significantly longer terms of imprisonment. Noted voices from across the political spectrum had demanded a complete ban on death penalty citing the futility of its deterrence value in those consultations.
Among these included BJP leader Varun Gandhi who said it was the “certainty of the punishment and not its severity that acts as deterrent”. Former top cop Julio Ribeiro recalled his experiences from the Punjab insurgency to note that “if the death penalty had sent shivers down the spines of possible offenders, I would have been tempted to support its retention. But that is not so”. Varun Gandhi certainly has a point. The punishment meted out for crimes comes at the end of a long process followed by the criminal justice delivery system. First, the victim has to register a complaint, then the police have to investigate the case properly, and witnesses and evidence need to be quickly and carefully marshalled before the trial court. The State’s failures at these stages have resulted in a poor conviction rate which serves to embolden criminals, and partially negates the fear of punishments. Despite Ribeiro’s views, successive Indian governments have converged on the necessity of invoking death penalty on terror convicts. Between rapist Dhananjoy Chatterjee’s execution in 2004 and 2012, it appeared for a while that the Indian government had abandoned the death penalty. But the executions of Ajmal Kasab in 2012, Afzal Guru in 2013, and Yakub Memon this year, indicate that the government intends to send a strong retributive message to its enemies and the society at large that anti-India terror will not be tolerated.
In this regard, the Law Commission proposals are path-breaking only to extent of demanding a repeal of the Indian Penal Code sections not relating to terror like murder, dacoity, kidnapping which currently provide for death penalty. It has not chosen to disturb the present political consensus on terror offences. Despite Kasab’s execution, this has not deterred more misguided youths like Naveed and Sajad from crossing over into India for terror attacks. This tells us that the real solution to the terror menace is to put an end to the activities of masterminds like Hafiz Mohammed Saeed and Dawood Ibrahim. As of December 2014, there were 270 death row prisoners in India. The majority of them had committed murder punishable under IPC Section 302. In a study on death penalty, the National Law University found that the high courts had confirmed just five per cent of the 1,790 death sentences imposed by the trial courts, indicating the subjective and fallible nature of this punishment. The Law Commission’s proposal is an official admission that the “rarest of the rare” doctrine arrived at by the Supreme Court in 1980, which significantly curtailed the judicial discretion, has also failed.
