Law panel against death penalty, except for terror

Says punishment cannot be reduced to vengeance

The Law Commission on Monday recommended abolishing the death penalty for all crimes except terror cases, arguing that punishment cannot be reduced to vengeance and hoping that the movement towards absolute abolition would be “swift and irreversible”.

The panel’s “262nd Report: The death Penalty” was not unanimous as three in the nine-member commission, which is headed by Justice (Retd) A P Shah, dissented against the recommendations, claiming abolition of the death penalty would result in more brutal crimes.

The panel also recommended “very strongly” that the criminal justice system be made more hospitable to the concerns of the victim and that “victims should not be made to accept the idea of the death penalty as the only measure of justice”.

In its last report, the 20th Law Commission sought to debunk claims that the death penalty was a deterrent. It also questioned the arbitrariness of capital sentencing and failure of clemency provisions in safeguarding miscarriage of justice.

Citing the “march of our own jurisprudence” from removing the requirement of special reasons for not imposing the death penalty in 1955 to restricting the death penalty to “rarest of rare” cases, it said: “The commission feels the time has come for India to move towards abolition of the death penalty.”

The panel noted that there is “no valid penological justification” for treating terrorism differently, but acknowledged that concerns are often raised that abolition of the death penalty for terrorism-related offences and waging war would affect national security.

“Given the concerns raised by the lawmakers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism-related offences,” it said.


Admitting that retribution plays an important role in punishment, the commission cautioned against reducing it to vengeance, saying the notion of “an eye for an eye, a tooth for a tooth” has no place in the constitutionally-mediated criminal justice system.

"The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Capital punishment fails to achieve any constitutionally valid penological goals,” said the report. Shah told a press conference: “It is a complete myth. The death penalty has lost the deterrent effect.” The report said the Supreme Court had on numerous occasions expressed concern over arbitrary awarding of the death penalty, and there “exists no principled method to remove arbitrariness from capital sentencing”.

Questioning the “rarest-of-rare” case formulation, the report said: “After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of the death penalty even within the restrictive environment of 'rarest of rare' doctrine is constitutionally unsustainable.”

It said continued administration of the death penalty asks “very difficult constitutional questions” that pertain to miscarriage of justice, errors as well as the plight of the poor and disenfranchised in the criminal justice system.

“The time has to come to make a clean break from the past. This discussion about abolition, therefore, is a clean break from the conversation about the rarest-of-rare principle,” said the report.

Justice (retd) Usha Mehra

To say that while deciding the case and imposing death sentence there is error in the judgment or it is discriminatory, to my mind, is a very general statement

Moreover to err is human. Almighty alone is the dispenser of absolute justice. Judges of the highest court do their best, subject of course to the limitation of human fallibility. But that does not mean the death penalty should be abolished in all cases irrespective of their gravity and heinousness

Sanjay Singh
Secretary, Legislative
Department (Law Ministry)

If the death sentence is abolished, the fear that comes in the way of people committing heinous crimes will be removed, which will result in more brutal crimes

Whoever commits a premeditated heinous crime in an extremely diabolical manner should not be allowed to go with life imprisonment or a lesser punishment on humanitarian grounds as they do not deserve it

P K Malhotra,
Law Secretary

The time is not ripe for death penalty abolition in our country

While there cannot be two opinions that rights of the accused are to be respected, it is the victims and the society whose rights should get precedence over the rights of the accused