Nirbhaya case: Law commission opposed death penalty

Justice Verma committee, Law commission opposed death penalty to Nirbhaya case convict

Doubting the deterrent effect of death penalty in curbing crimes, Justice J S Verma Committee and Law Commission had argued against executions, viewing it as a "regressive step" even in rarest of rare cases, as punishment "cannot be reduced to vengeance".

The Justice Verma Committee, which was formed days after the horrific Nirbhaya gangrape case in Delhi in December 2012 to review criminal law related to sexual assault, batted for enhanced punishment, including imprisoning one for the remainder of his life in grave cases. It had then highlighted the need for a legislative clarification to ensure that life imprisonment meant imprisonment for the "entire natural life of the convict".

The '262nd Report: The Death Penalty' by the Commission headed by Justice (Retd) A P Shah in 2015 wanted abolition of death penalty for all crimes except terror cases while hoping that the move towards absolute abolition will be "swift and irreversible". Three of the nine members dissented against the recommendations claiming among other things that abolition of death penalty would result in more brutal crimes.

In its 'Report on Amendments to Criminal Law, which was submitted within a month of its constitution on 23 January, 2013, the Justice Verma Committee said that rape deserves "serious punishment", as it was a "highly reprehensible crime in the moral sense” and demonstrates a “total contempt for the personal integrity and autonomy” of the victim.

However, it said a strong case has been made out before the panel that it would be a "regressive step" to introduce death penalty for rape even in rarest of rare cases. Citing studies, it said there was "considerable evidence" that the deterrent effect of death penalty was "actually a myth".

Justice Leila Seth and senior lawyer Gopal Subramanium were the two other members of the panel, which was formed on 23 December, 2012, days after the gangrape of Nirbhaya in South Delhi, with a mandate to submit its report within a month. Nirbhaya succumbed to her injuries on 29 December, 2012 while four convicts in the case were sent to gallows on Friday in Tihar Jail here.

The Justice Verma Committee said, "in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty."

Referring to this its reports, the Law Commission said the Criminal Law (Amendment) Act 2013, introduced several new provisions into the IPC, including death penalty on rapes leading to death or leaving her her in a persistent vegetative state and for certain repeat offenders despite Verma Committee's recommendations.

In its report, the Law Commission also recommended “very strongly” that the criminal justice system must be made more hospitable to the concerns of the victim and that “victims should not be made to accept the idea of death penalty as the only measure of justice”.
While noting that there was "no valid penological justification" for treating terrorism differently from other crimes, it said concerns are often raised that abolition of death penalty for terrorism related offences and waging war would affect national security.

"Given the concerns raised by the law makers, 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. 

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