Death penalty 'constitutionally unsustainable': Law Commission

New Delhi Death penalty even in rarest ofrare cases is constitutionally unsustainable the LawCommission said today as it recommended swift abolition ofcapital punishment except in terror cases noting it does notserve as a deterrent any more than life imprisonmentAfter many lengthy and detailed deliberations it is theview of the Law Commission that the administration of deathpenalty even within the restrictive environment of rarest ofrare doctrine is constitutionally unsustainableRepresentational picContinued administration of death penalty asks verydifficult constitutional questionsthese questions relate tothe miscarriage of justice errors as well as the plight ofthe poor and disenfranchised in the criminal justice systema report by the Law Commission saidThe recommendation by the 9member panel was however notunanimous with one fulltime member and two governmentrepresentatives dissenting and supporting retention of capitalpunishmentIn its last report the 20th Law Commission said there isa need to debate as to how to bring about the abolition ofdeath penalty in all respects in the very near futuresoonestWhile supporting death for those convicted in terror casesand for waging war against the country the report The death penalty said that although there is no valid penologicaljustification for treating terrorism differently from othercrimes concern is often raised that abolition of capitalpunishment for terrorrelated offences and waging war willaffect national securityOne of three fulltime members Justice retd Usha Mehraand both the exofficio members Law secretary P K Malhotraand Legislative Secretary Sanjay Singh gave their dissentingnotesThe Law Commission comprises a Chairman three fulltimemembers two exofficio members who represent the governmentand three parttime membersThe panel while refusing to recommend any single modelfor abolishing death penalty said the options are many from moratorium to a fullfledged abolition bill The LawCommission does not wish to commit to a particular approach inabolition All it says is that such a method for abolitionshould be compatible with the fundamental value of achievingswift and irreversible absolute abolitionJustice Mehra said Recommending blanket abolition ofdeath sentence or moratorium on death penalty in heinouscrimes is not an appropriate course particularly keeping inview the circumstances prevailing in our countryRegistering 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 itWe have a vibrant judiciary which is respected worldover 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 judgmentsLegislative Secretary Sanjay Singh maintained the panelshould not recommend something which has the effect ofpreventing the state from making any law in the interest ofthe sovereignty and integrity of the countryHowever supporting abolition of capital punishment by amajority the panel said in the last decade the Supreme Courthas on numerous occasions expressed concern over arbitraryhanding down of death sentenceThe Court has noted that it is difficult to distinguishcases where death penalty has been imposed from those wherethe alternative of life imprisonment has been appliedDwelling on the issue of clemency the report said theexercise of mercy powers under Articles 72 and 161 of theConstitution have failed in acting as the final safeguardagainst miscarriage of justice in the imposition of the deathsentenceIt said the apex court has repeatedly pointed out gapsand illegalities in how the executive has discharged its mercypowers When even exercise of mercy powers is sometimesvitiated by gross procedural violations and nonapplication ofmind capital punishment becomes indefensibleSafeguards in the law have failed in providing aconstitutionally secure environment for administration of thisirrevocable punishment the report said