Once the Law Commission observed, “The death penalty has no demonstrated utility in deterring crime or incapacitating offenders any more than its alternative imprisonment for life and that the quest for retribution as a penal justification cannot descend into a cry for vengeance.” It seems to have been felt inadequate by the Union government in order to accept the recommendation of the Commission to fully abolish capital punishment. “The notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals,” the Law Commission had said in its 262nd Report. It pointed out that even the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing in death penalty cases. “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,” it said. The Commission had stated that the constitutional regulation of capital punishment attempted in Bachan Singh case has failed to prevent death sentences from being arbitrarily and freakishly imposed.
The Commission had put a case for abolition of death penalty, except in terrorism-related offences and waging war, noting that retribution has an important role to play in punishment but it cannot be reduced to vengeance. Unfortunately, despite threadbare discussions within the Law Ministry the recommendation for abolition of death penalty was rejected. This undoubtedly was a great blow to the votaries of the abolishment of capital punishment who continue to lead this global crusade in India even today. Going by the reasons spelt by the officials maintaining that time was not ripe yet to remove it completely from the statute book especially in view of the threat from terrorism, it seems there was no justification to reject the recommendation of the Law Commission. Reading in between the lines the statement of the Home Ministry at that point of time, it seems that the Ministry was in total agreement with the projection of the Law Commission that complete removal of capital punishment from the statute book is not feasible due to draconian threat of terrorism. In its report, the Law Commission had also recommended the swift abolition of death penalty except in terror-related cases. The confusion on this vital issue continues even today. It is an acknowledged fact that the scope of deciding on capital punishment or life imprisonment should be left to the vibrant Indian judiciary as per the circumstances specific to each case. It can’t be denied that capital punishment is the ultimate warning to terror-related criminals and the best answer to sedition and murder, especially mass murder in the present day challenges of terrorism faced by India. It needs to be realized that India has been maintaining an optimum human rights record besides being a votary of ‘non-violence’ the basis of Gandhian philosophy. As such, it was expected that the nation would become completely a part of this global movement for abolishing capital punishment once for all. It is hoped that the Home as well as Law Ministries will once again revisit the law providing for capital punishment and delete the same from the statute book except in cases of sedition, separatism and terrorism, thus reiterating the nation’s commitment to reformation rather than retribution.