The Law Commission has recommended restricting death penalty only to terrorists. Last year, the Supreme Court had asked the Law Commission headed by retired justice A P Shah to give a report on death penalty. The Law Commission has said what human rights champions have been saying for ages: “Death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. The quest for retribution as a penal justification cannot descend into cries for vengeance.” The Law Commission goes beyond the Supreme Court ruling that capital punishment must be reserved for the “rarest of rare” cases. The Law Commission has noted that the definition of the “rarest of rare” is not always clear. Though good sense prevails in the higher courts which quash death penalty in most cases, this presumes that death sentences are being awarded by the lower courts. Whether the country adopts the commission’s report is another thing, its recommendation is bound to trigger thinking in the country about clearly defining the “rarest of rare” cases for death penalty.
The commission’s recommendation of limiting death penalty only for terror cases might find echo in a country that has just seen Yakub Memon’s hanging for his role in the 1993 Mumbai serial blasts case. However, the commission’s specification would also help build public opinion against death penalty in general. Many studies have suggested that there is no evidence to show that capital punishment has any effect on murder rates. There is no evidence to support that it has any effect on frequency of incidence of terror cases, either. It is usually argued that the sentence is a denial of human rights and may send a wrong message — that killing is acceptable under certain cases. The death penalty is eminently fallible but at the same time irrevocably final. It operates in a system that can be highly fragile and open to manipulation and mistake. The exercise of mercy powers has also failed in acting as the final bulwark against miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty.
It is also felt that there is a possibility of innocent people to get executed because of unfair and discriminatory application of the death penalty. Studies across the world have shown that in most cases the person sentenced to death is from an economically and socially backward section of society, indicating his/her inability to hire good lawyers to contest their cases. However, economic and social backwardness cannot always be made as a plea against death penalty. It would be inhuman to support the accused in the Nirbhaya rape and murder case just because they happened to be from disadvantaged sections of society. Or the accused in the Dhananjay case where a Class IX girl was killed and raped. How can such people be spared death penalty? – Commoners often ask. If they are, it could send a wrong message to society. The Supreme Court and the central government have to ponder over these issues when they discuss the Law Commission’s recommendation of limiting death penalties only to terror cases.