Death penalty 'constitutionally unsustainable': Law Commission

New Delhi: Death penalty, even in rarest of rare cases, is "constitutionally unsustainable", the Law Commission said today as it recommended "swift" abolition of capital punishment except in terror cases, noting it does not serve as a deterrent any more than life imprisonment.

"After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of death penalty even within the restrictive environment of 'rarest of rare' doctrine is constitutionally unsustainable.

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"Continued administration of death penalty asks very difficult constitutional questions...these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system," a report by the Law Commission said.

The recommendation by the 9-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment.

In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the "abolition of death penalty in all respects in the very near future, soonest."

While supporting death for those convicted in terror cases and for waging war against the country, the report, 'The death penalty' said that although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security.

One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members -- Law secretary P K Malhotra and Legislative Secretary Sanjay Singh gave their dissenting notes.

The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.

The panel, while refusing to recommend any single model for abolishing death penalty, said "the options are many --
from moratorium to a full-fledged abolition bill. The Law Commission does not wish to commit to a particular approach in abolition. All it says is that such a method for abolition should be compatible with the fundamental value of achieving swift and irreversible, absolute abolition."Justice Mehra said, "Recommending blanket abolition of
death sentence or moratorium on death penalty in heinous crimes is not an appropriate course particularly keeping in view the circumstances prevailing in our country."

Registering his dissent, Law Secretary Malhotra said Parliament in its wisdom has prescribed death penalty only in heinous crimes. "The need of the hour is to retain it...We have a vibrant judiciary which is respected world-over. We should have faith in the wisdom of our judges that they will exercise this power only in deserving cases for which the law is well laid down in various judgments..."

Legislative Secretary Sanjay Singh maintained the panel should not recommend something which has the effect of
preventing the state from making any law in the interest of the sovereignty and integrity of the country.

However, supporting abolition of capital punishment by a majority, the panel said in the last decade, the Supreme Court has on numerous occasions expressed concern over arbitrary handing down of death sentence.

"The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied."

Dwelling on the issue of clemency, the report said the exercise of mercy powers 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 said the apex court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. "When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.

"Safeguards in the law have failed in providing a constitutionally secure environment for administration of this
irrevocable punishment," the report said.