The Law Commission, in a report released on Monday, recommended India abolish the death penalty, with the exception of terror-related offences, saying that sending a convict to the gallows has lost its relevance as a deterrent to curb heinous offences.
While not recommending the abolition of death sentence in terror-related cases, the commission has however, said that “there is no valid penological justification for treating terrorism differently from other crimes”.
Making an exception for terrorism, it noted that “a concern is often raised that abolition of death penalty for terrorism related offences and waging war (against India), will affect the national security”.
“However, given the concern raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of death penalty for all the offences other than the terrorism-related offences, said the report’s recommendations.
“It (capital punishment is deterrent) is a myth. It is no deterrence. It has lost its relevance as deterrent,” said Justice (retd.) A.P.Shah while releasing the report on his last day as the chairman of the Law Commission.
Citing several instance where courts have gone wrong in awarding the death sentence, he said that at the trial court level, one in every three cases results in a death sentence but by the time it reaches the Supreme Court, the percentage of death row convicts gets reduced to 4.7 percent.
“We have no sympathy for the criminals or wrongdoers but we feel sentencing of punishment of death is not working properly,” said Justice Shah.
The “strong recommendation” for the abolition of death sentence for all offences other than terrorism-related offences and waging war against the country found favour with six members of the commission while three members – two government representatives and Justice (retd.) Usha Mehra – differed.
Saying the abolition of death sentence had to be a “gradual” process as was done in England, Justice Shah said that “it has to be a gradual process and to begin with ordinary law”.
“The report is not for immediate result but (to) start a debate and to make a clean break with the past (practice of awarding death sentence).”
“Victim may feel that the highest punishment may be given to the accused but in fact that does not help and instead a perpetrator of a crime must be given a ‘proper and longer punishment’, he contended.
He said that a victim clamours for death sentence because that is the “highest punishment” but if tomorrow, a life sentence or sentence for the whole life becomes the highest punishment, then victims will demand that only.
During the terms of the first six presidents – Rajendra Prasad, Sarvapalli Radhakrishnan, Zakir Hussain, Fakruddin Ali Ahmed, V.V.Giri, and N. Sanjeeva Reddy – which stretched from 1950 to 1982, only one mercy petition was rejected while 262 were commuted to life imprisonment. Ahmed and Sanjeeva Reddy did not even get to deal with any mercy plea during their terms.
In the second phase, Giani Zail Singh rejected 30 of the 32 mercy petitions that came to him, his successors R. Venkatraman 45 of the 50, and Shankar Dayal Sharma rejected all 18 mercy petitions put up before him.
In the third phase from 1997-2007, K.R. Narayanan and A.P.J Kalam kept almost all the mercy petitions pending. Subsequently, Pratibha Patil rejected five mercy petitions, and commuted 34 to life imprisonment, while President Pranab Mukherjee has rejected 31 of 33 mercy petitions.