In what can be termed as a watershed moment in the fight against death penalty in India, the Law Commission in its 262^nd report (‘2015 report’) has recommended the abolition of the death sentence for all offences except “terrorism related offences”. The Commission had earlier recommended retention of capital punishment in its 35^th report (‘1967 report’) published in 1967.

Based on the Commission’s analysis “of the existing socio-economic-cultural structures (including education levels and crime rates) and the absence of any Indian empirical research to the contrary”, the 1967 Report had concluded that the death penalty should be retained. The Supreme Court in Bachan Singh (1980), relied greatly on the 1967 report to uphold the constitutionality of capital punishment. However, the Commission’s 1967 report came with a caveat—it was stated that “at the present juncture, India cannot risk the experiment of abolition of capital punishment”. Indeed, a fresh look at the issue has prompted the Law Commission to conclude that this punishment serves no “valid penological justification”.

In a healthy departure from the rhetoric surrounding the death penalty, the Commission reinforces that “the abolition of death penalty does not entail the release of the offender into society without any punishment whatsoever.” Debates surrounding the issue often lose sight of this. Apart from rebutting the penological justifications for the punishment specified in the 1967 report, the 2015 report also maps the application of the “rarest of rare” case standard (per Bachan Singh, death penalty can only be imposed if the case falls in the “rarest of rare” category) and exposes its “judge centric” nature.

While the 2015 report is a welcome step, it is problematic on three counts. First, citing issues of “national security” and “a sharp division among law-makers”, the Commission recommends that the death penalty be retained for terror related offences. On one hand, the Commission itself states that “public opinion” is not a pre-condition to determine the question of abolition. However, it then goes on to rely on “public opinion” for carving out the terrorism exception. Further, it actually acknowledges that creating this exception can be counterproductive, since it “would not deter other potential rebels, but in fact make the executed person a martyr, whose death would inspire, and not deter potential followers.” In spite of this, the death penalty has been regarded as permissible in cases of terrorism. As observed by Anup Surendranath, the recommendation seems to be based on a deference often paid to the legislature in matters relating to “national security”. If the constitutional safeguards of non-arbitrariness are being violated in the imposition of the death penalty, can “national security” be used to justify it in terror cases? The Supreme Court in Shatrughan Chauhan has explicitly rejected a similar distinction between ordinary offences and terrorism while discussing the factors based on which the death penalty can be commuted to life imprisonment. In fact, as Kunal Ambasta explains, the case for abolition is stronger in terrorism related cases since they are often subject to extraordinary procedures for investigation and prosecution (such as a reversal of the burden of proof).

Secondly, the report falls just short of recognising that the death penalty violates the right to life and dignity, and amounts to a cruel, inhuman and degrading punishment, as has been done in other jurisdictions (including the UN, and South Africa). Instead, the recommendations are solely based on the lack of a valid penological rationale for, and arbitrariness in, the imposition of the death penalty.

Finally, the Commission makes no recommendation to safeguard the rights of persons who may be subjected to capital punishment in the time that it takes for Parliament to act on this report. A moratorium (or similar protections) would have provided much needed protection, since the legislative debate around the issue is likely to be protracted.

It is heartening to see the march of our own jurisprudence – “from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death sentence in 1973; to 1980 when the death penalty was restricted to the ‘rarest of rare’ cases by the Supreme Court”; to 2015, when the Law Commission has recommended the abolition of death sentence for all offences save terrorism. One hopes that the debate reaches its logical conclusion soon.