New Delhi:
Death penalty in India should be abolished for all crimes except cases of terrorism, the top body that recommends legislative reforms in India, the Law Commission, has suggested. The abolition, it has also suggested, should be done in a "phased manner".
In the report, the Commission has argued an element of arbitrariness creeps in when it is decided whether a crime belongs to the "rarest of rare" category - on which death penalty is awarded. But this, the report said, makes death penalty in such cases constitutionally unsustainable, since it violates the fundamental right to life of the convict.
The findings of the Commission are not binding on the government. In fact, even the report was not unanimous. While six members, including Chairman AP Shah, concurred with the findings, three members, including retired judge Justice Usha Mehra and Union law secretary PK Malhotra argued for the retention of the death penalty.
Opinion within the legal fraternity is also divided. "I am against abolishing death penalty," said K T S Tulsi, Rajya Sabha member and noted criminal lawyer. "In the last 60 years, only 50 people have been executed in India. If you look at other countries like China, Malaysia, Pakistan hundreds of people have been executed."
In colonial India, death penalty was the rule and life sentence was the exception. In 1980, the Supreme Court invoked the principle of the rarest of rare cases for the death penalty. Still, India remains one of the few countries where death penalty is still given - on several instances, erroneously. The Supreme Court has admitted to 16 such cases.
Besides, there is a scope of discrimination, with the people from the poorer sections, who cannot afford proper legal representation, being given death penalty. There have been many instances where such judgments by lower courts have been overturned by the top court.
A case in point would be the terror attack in Gujarat's Akshardham temple in 2002, when the death penalty of several people was commuted.