Law panel sees arbitrary awarding of death penalty

The administration of capital punishment remains “fallible and vulnerable to misapplication” due to various reasons, including “judge-centric” determination of whether a case falls within the “rarest of rare” category, the Law Commission has said.

Arguing that this could result in arbitrariness in sentencing and there is no principled method to remove it, the commission has said different judges have understood the requirements of the “rarest of rare” standard differently and this result in disparate judge-centric determination of whether a case falls within that category.

The commission’s Report 262 on the death Penalty goes diametrically opposite to the 1967 report that argued for retention of the death penalty.

The latest report has also raised questions on the issue of clemency, saying a death-row convict's fate may not only depend on the then government's ideology and views but also on the President's personal views and belief systems.

"While the President in considering a mercy petition is constitutionally obligated to not deviate from the advice rendered by the council of ministers, there have been occasions where the President has refrained from taking any decision altogether on the said mercy petition, thus keeping the matter pending,” it said.

The report said even exercise of mercy powers is “sometimes vitiated by gross procedural violations and non-application of the mind”, and then capital punishment becomes “indefensible”.

The clemency provisions under Articles 72 and 161 of the Constitution have “failed in acting as the final safeguard against miscarriage of justice” in the imposition of the death sentence, it added.

Since the tenure of first President Rajendra Prasad, Presidents have accepted 306 mercy petitions while 131 were rejected.

A close look at the statistics showed that in 1950-1982, only one mercy petition was rejected as against 262 commutations of the death penalty to life sentence.  In contrast, between 1982 and 1997, 93 mercy petitions were rejected while only seven were commuted.

Between 1997 and 2007, K R Narayanan and A P J Abdul Kalam put the brakes on the disposal of mercy petitions. Narayanan did not decide any mercy petition, while Kalam acted only twice, resulting in one rejection.

Pratibha Patil rejected five mercy petitions, and commuted 34 death sentences, while current President Pranab Mukherjee has thus far rejected 31 of the 33 mercy petitions decided by him.