Doing Away with Hanging

On Monday, the Law Commission recommended the abolition of the death pelty except for terror-related offences. It thus became the first official body in India to take a formal stand against capital punishment. However, three of the Law Commission’s 11 members wrote dissent notes citing the growing crime rate. Professor Yogesh Tyagi, a fourth member could not sign the recommendations as he was abroad. But former Delhi Chief Justice A.P. Shah, who is chairperson of the Law Commission, said that Tyagi, like him, supported the majority recommendation. The 217-page report was handed over to Union Law Minister Sadanda Gowda. While recommendations of the Law Commission are not binding on the government, it is unlikely that the government of India will not take serious note of the Law Commission’s recommendations on capital punishment.

The Law Commission’s report is understood to have drawn attention to the fact that India was among “a small and ever-dwindling group of tions” that retained capital punishment, the abolition of which “in 140 countries... demonstrates that evolving standards of human dignity and decency do not support the death pelty.” The report cites how delays, “solitary confinement and the prevailing harsh prison conditions” brought “additiol, unwarranted and judicially unsanctioned suffering on death sentence prisoners,” breaching “the Article 21 barrier against degrading and excessive punishment.” [Article 21 of our Constitution relates to protection of life and persol liberty. It says: “no person shall be deprived of his life or persol liberty except according to procedure established by law.”] The report adds: “Death-row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency, causing the prisoner extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution.” The Commission argues in its report that retaining the provision of capital punishment “is not a requirement for effectively responding to insurgency, terror, or violent crime.” Even so, the commission suggested allowing death sentences in “terrorism related offences and waging war (against the tion)” keeping in mind “concerns raised by the lawmakers” on “tiol security”. However, the report acknowledged that there was “no penological justification for treating terrorism differently from other crimes.” [In January last year, the Supreme Court had ruled that “unexplained delay” in the disposal of mercy pleas, as well as mental illness, were grounds for commutation of death sentences even in terror cases.]

The Law Commission’s report on capital punishment is the outcome of two references to the law panel from the Supreme Court “for an up-to-date and informed discussion and debate” on death pelty. However, the apex court had made it clear that the matter was for Parliament and not for the courts to decide. Unfortutely, an issue like whether capital punishment should be abolished cannot be decided entirely from the perspective of how inhuman or revolting capital punishment may be or how its continuation goes counter to the provisions of Article 21 of our Constitution. There can be no doubt that our pel provisions should not include the death pelty, at least for the simple reason that a system cannot be allowed take away life which it is in no position to give back. How does the legal system provide corrective measures upon a later discovery that a death sentence given had been executed on an innocent person? A country like ours, where heinous crimes have become very popular, has only itself to blame for being compelled to retain the death sentence because the long delay in justice has greatly encouraged major crimes and done very grave injustice to the victims of crime. As such, before a decision is taken to abolish the death sentence (and any civilized country will have to take this decision sooner or later) it is imperative to first undo the grave injustice perpetrated by the law’s inordite delay that has increased the number of heinous crimes largely because crimils know that the day of punishment will dawn only years later, and sometimes—if they are lucky—only after their deaths.