The Law Commission’s recommendation that the death penalty be abolished for all offences except terror has been lauded, but the fact is that it has stepped back from its own conclusions about judicial arbitrariness
In the global discourse on the gradual abolition of the death penalty, the 262nd report of the Law Commission of India is going to be an important milestone, as it represents one-sixth of humanity. The Commission’s chief recommendation is that the death penalty be abolished except for terror cases and cases of waging war against the state (often a concomitant charge in terror cases). Though not unequivocal in its rejection of capital punishment, it has concluded that the arguments against the death penalty, even for terror cases, are substantial, and has called for ‘a more rational, principled and informed debate on the abolition of the death penalty for all crimes.’
This is important since in most debates about the death penalty, its popular appeal as a befitting punishment for heinous crimes has for long prevailed over any reasoned argument against it. So much so that, the opponents of the death penalty are often accused of sympathising with the perpetrators of horrific crimes rather than their victims. The phenomenon of terrorism has further stifled the debate, since those who challenge the rationale behind capital punishment can easily be labelled as ‘traitors’ in such cases.
The doctrine of ‘rarest of rare’, laid down by the Supreme Court as a prerequisite in the case of Bachan Singh v. State of Punjab in the year 1980, is the decisive factor for arriving at whether or not to award capital punishment in a case. The Law Commission, by examining several such cases in its report, has completely exposed the lack of a principled approach by the Supreme Court when it comes to following its own doctrine.
An astounding revelation such as this – that the maximum punishment has been awarded arbitrarily – would have been sufficient for the higher courts in India to declare the death penalty unconstitutional, since it violates the right to equality. The reason it has not happened is because of what may seem a technicality – the notion that fundamental rights given to the individual by the Constitution is against the state and not the judiciary, and therefore the judiciary cannot by definition violate these rights. This is why, despite having completely demolished the arguments in favour of the death penalty as practiced by the courts, the Commission has pinned its hope on the legislature and not the judiciary for its abolition.
Terror still the exception
However, the deferential stand of the Law Commission when it comes to terror cases – where it recommends the continuance of the death penalty – leaves much to be desired. Not because of what it has ultimately recommended, but because of its refusal to examine the correctness of the claim that terror cases are different as they affect national security. The Commission only refers to the ‘deep division among the lawmakers’ on this issue, concluding that the time is not ripe for the abolition of the death penalty in terror cases.
Nevertheless, the Commission’s report quotes with approval the Supreme Court judgement in Shatrughan Chauhan v. Union of India (2014), where it said that devising a separate category for terror cases within the ‘rarest of rare’ cases is flawed. This case relates to the issue of inordinate delay in the disposal of mercy petitions by the President of India or governors of states which are filed by or on behalf of the convicts condemned to death after the conclusion of the judicial process.
The court in this case had commuted the death penalty of several convicts to life imprisonment, arguing that keeping convicts waiting for an unreasonably long period of time on their mercy petitions amounts to infliction of cruelty. In the same case, the Supreme Court declared its own earlier judgement, in the case of Devendar Pal Singh Bhullar v. (State) NCT of Delhi (2013), bad in law. In that case, the court had held that a person sentenced to death under an anti-terror law (in this case, TADA) cannot claim that his death sentence should be commuted to life imprisonment on the ground of inordinate delay in the disposal of his mercy petition.
The Supreme Court in Shatrughan Chauhan observed that ‘all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence.’ Given how the court has enunciated this principle, any attempt by the legislature to distinguish terror and non-terror offences so as to impose the death penalty is likely to be constitutionally vulnerable before a court of law.
The Law Commission’s recommendation to retain the death penalty in terror cases is unsound also in terms of jurisprudence. Anti-terror laws reduce the threshold for the basis of conviction by making evidence otherwise not admissible under the Indian Evidence Act, admissible. For example, confessions made before a police officer not below the rank of Superintendent of Police are admissible under most anti-terror laws. Given such exemptions, there’s a greater probability of innocents being convicted under these laws; all the more reason why the law must guard against providing for an irreversible punishment like death penalty in such cases.
A useful comparison would be to cases of ‘dowry death’ under the Indian Penal Code. In such a case, if a woman dies under abnormal circumstances within seven years of her marriage, the law allows for the presumption that the woman’s husband or his relatives may have possibly caused her death in connection with a demand for dowry. Here, because this provision lowers the threshold otherwise required for proving culpability in a murder case, it also proscribes the death penalty, instead restricting punishment to not less than seven years imprisonment which may extend to life.
Further, even if a law (in this case, an anti-terror law) retains the death penalty, it cannot make it the only punishment for such offences. It must include provision of life imprisonment as an option, without which it would be unconstitutional, as the Supreme Court has held in the case of Mithu Singh v. State of Punjab (1983).
What this means is that the discretion to decide which case deserves the death penalty will still vest with the courts. How the courts will then be able to evade the lingering charge of judicial indiscretion bordering on arbitrariness – a fact the Commission itself arrived at in its report – remains unanswered. Such quandaries could have been avoided if only the Law Commission had found the gumption to examine the merits and demerits of the death penalty in cases related to terrorism as well.
Manwendra Kumar Tiwari is Assistant Professor, Dr. Ram Manohar Lohia National Law University, Lucknow