The Law Commission in its 262nd
report has recommended that death penalty be abolished for all crimes
other than terrorism-related offences and waging war. Parliament is
informed that the opinions of states and union territories are sought as
it is the Constitutional stipulation. A majority of nations have
abolished the death sentence for all crimes.
The Supreme Court in Bachan Singh vs
Union of India, 1980, held that the law‘s instrumentality ought not to
be used to take away life except in rarest of rare cases when the
alternative options unquestionably foreclosed. But, what constitutes
‘rarest of the rare’ is subject to interpretation and thus a bone of
contention.
The experience in India suggests that
the phrase ‘rarest of rare’ crime is loosely interpreted to award death
penalty in increasing array of offences. Even the Law Commission
referred to the unguided discretion of sentencing courts. Capital
sentencing in India is often based on the personal predilection of
judges.
The Supreme Court in Bachan Singh and
other subsequent verdicts held that the subjective opinion of
individual judges as to the morality, efficacy or otherwise of a
sentence, particularly death sentence, cannot be ruled out. If the law
panel recommendation is adopted, the ‘rarest of the rare’ crimes would
be concretely defined and shall prevent its wide applications.
Studies indicate that the death
penalty has failed to deter heinous crimes. The Law Commission analysis
reveals that there is no evidence to conclude that the death penalty has
a deterrent effect over and above life imprisonment. The absence of the
deterrent effect of death penalty is because most of these crimes for
which such a harsher punishment is awarded are heat-of-the-moment
crimes unlike the acts of terror that are preplanned.
None can give any guarantee that a
person is not falsely implicated given the levels of corruption and
inefficiency in our criminal justice system. The majority verdict of
apex court in Bachan Singh also held, “… such errors of judgment cannot
be absolutely eliminated from any system of justice, devised and worked
by human beings …”.
The court in Ravji vs. State of
Rajasthan, 1996, had in fact admitted such errors. The death penalty is
an irreversible punishment and can only be awarded when such a foolproof
system is assured at any cost. Even if the death penalty is awarded in
the rarest of rare cases like terrorism or war, judicial errors cannot
be totally eliminated. Thus, adequate safeguards and checks are an
imperative.
The experience of death penalty in
India also suggests a class divide among those who were sentenced for
this. The rich and the mighty have manipulated the system to escape the
clutches of law while the poor and marginalised were served with
sentence to death.
Both the blood-thirsty demand for
capital punishment or bleeding-heart urge for its abolition are
unwarranted. The well laid down aspects in Indian jurisprudence like the
rarest of the rare case test and the test of ‘amenable to reform‘ (Law
Commission of India, 2015b) should be applied and per incuriam should
be avoided in delivering judgments in such sensitive cases.
EDITORIAL --- THE HANS INDIA
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