Indian Law Commission recommends abolition

The Law Commission of India whilst recommending the abolition of the death penalty for all crimes other than terrorism related offences and waging war, expressed hope that the movement towards the absolute abolition will be swift and irreversible.

The Commission in their August 2015 report on the death penalty pointed out that although lawmakers had raised concerns that the abolition of the death penalty for terrorism related offences and waging war would affect national security, there is however no valid penological justification for treating terrorism differently from other crimes.

The international trend towards the successful and sustained abolition where 140 countries have now abolished confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime, they elaborated.

The Commission further added that they do not see any reason to wait any longer to take the first step to abolish the death penalty for offences other than terrorism related offences.

The Commission also cited Indian jurisprudence ranging from the removal of the requirement of having to give special reasons for imposing a sentence of life imprisonment instead of death in 1955 and the requiring of special reasons for imposing the death penalty in 1973, to the restriction of the death penalty to the rarest of the rare cases by the Supreme Court in 1980 (Bachan/Machhi Singh And Others v. State Of Punjab).

The latter three instances, according to the Commission, ‘shows the direction in which we have to head’ which the Commission explained is ‘informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the State and the individual, and the prevailing standards of Constitutional morality and human dignity’.

Moreover, evolving standards of human dignity and decency are demonstrably not in support of the death penalty, the Commission opined.

‘In focusing on the death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and the rights of victims of crime,’ the Commission concluded.

Citing the deep crisis in the administration of criminal justice with the ‘lack of resources, outdated modes of investigation, an over-stretched Police force, ineffective prosecution and poor legal aid’ being some of the problems besetting the system, the Commission observed that the death penalty too operates within such a context and ‘therefore suffers from the same structural and systemic impediments’, thus making the administration of capital punishment ‘fallible and vulnerable to misapplication’.

They emphasised that it is essential that the State expeditiously establish effective victim compensation schemes to rehabilitate victims of crime, and that the Courts use the power vested in them to grant appropriate compensation to victims in suitable cases, and measures also be taken on a priority basis to address the need for Police reforms for better and more effective investigation and prosecution.

Also, the requirement of an effective Governmental witness protection scheme was proposed. Sri Lanka however has The Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 and the National Authority for The Protection of Victims of Crime and Witnesses established under the said Act.

-By Ruwan Laknath Jayakody

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