First of all, let me begin by strongly applauding the landmark 262nd report of Law Commission which has recommended abolishing of death penalty in the country. A 272-page draft report of the Law Commission, circulated among members, favours speedy abolition of the death penalty from the statute books, except in certain cases where the accused is convicted of involvement in a terror related offence and waging war against the country. This is undoubtedly the most landmark recommendation made by the Law Commission ever since it started making recommendations 60 years ago!

In its report submitted to the government by Law Commission Chairman and former Delhi High Court Chief Justice AP Shah, the panel concluded that while death penalty does not serve the penological goal of deterrence any more than life imprisonment, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security. Law Commission says 7-3 in report to Government that abolish death penalty and retain it only for terrorism related offences and waging war against the country. One has to acknowledge here that terrorists can under no circumstances be exempted from death penalty as they are a potent threat not to just one or few individuals like rapists, dacoits and other ordinary criminals but pose the most serious threat to the very existence of our great nation!

Needless to state, terrorists can attack nuclear installations and destroy our whole nation as former PM Dr Manmohan Singh had very rightly pointed out while he was PM! Moreover, terrorists gets all type of rigorous training from Pakistan and other hostile nations on how best to destroy India and are armed to the teeth unlike other ordinary criminals like rapists, dacoits or other criminals who are not entertained at all nor given any help in committing any crime of rape, dacoity etc! Yes, if they agree to become terrorist then they will be given training on how to place bomb at crowded places in trains, markets etc to kill maximum Indians and also taught how to avoid security and target sensitive places like Tehri dam which if attacked successfully can destroy many cities as water will submerge them all and our national capital Delhi too will get submerged! This explains why death penalty has been recommended to be retained only for terror related offences!

On the issue of death penalty on terror offences, the Commission, after a wider consultation, has come to a conclusion that it is for the legislature to decide whether it wants to retain death penalty for terror offences as it involves sensitive issue of national security. The Government is not in support of complete ban on the death penalty. I too favour death sentence but only and only for terrorists and want that this talks, dialogues, ceasefire sham with terrorists and according VVIP status to them must immediately stop and they too should be treated like others!

India is one of the 59 countries where the death penalty is still awarded by courts. The death penalty became a raging topic for discussion and was debated extensively in the run-up to the July 30 hanging of Mumbai blasts convict Yakub Menon. The draft report hopes that the movement towards absolute abolition will be swift and irreversible.

In 1962, the Law Commission, in its 35th report, had recommended the retention of death penalty. May I also add here that last year, the Commission had been tasked by the Supreme Court to study the issue of death penalty and submit a report on it. The Commission held wide-ranging consultations on the issue where majority of the participants, including the representatives of some political parties favoured abolition of the death penalty.

In its draft report, the Commission has observed:
The 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. In its report, the Commission has pointed out that despite the landmark Supreme Court judgment in Bachan Singh versus State of Punjab – the Supreme Court laid down the rarest of rare doctrine and held that capital punishment should only be awarded in the rarest of rare cases – the application of death penalty continues to be remain excessive, arbitrary, unprincipled, judge-centric and prone to error.

The draft report notes that there exists no principled method to remove such arbitrariness from capital sentencing and that not only is its arbitrary and uncertain, it is applied disparately and disproportionately against socially and economically marginalised groups, reflecting systemic biases and structural disadvantages. No one can disagree with this and this alone explains why the Law Commission strongly recommended abolition of death penalty in all cases except terror cases. The draft report also states that, The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistake... The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty.

The Commission, while recognising lack of consensus among lawmakers on the issue, has suggested a possible approach towards achieving the goal of abolition of death penalty. It also noted that, The Commission suggests that the death penalty be immediately abolished for all crimes other than terror offences. At the same time, for terror offences a moratorium as regards sentencing and execution be immediately put in place. This moratorium can be reviewed after a reasonable period.

On a personal note, I very strongly feel that any leniency for terror offences will be self-defeating. It is our long term national interests which will be harmed most. This under no circumstances must be allowed because nobody can be above the nation and the human rights of terror accused individuals cannot be above our national interests under any circumstances! Never! Never!

Sanjeev Sirohi, Advocate
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut-250001, UP