Principle of 'rarest of rare' cannot be operated free of arbitrariness, says Law Commission.

The Law Commission today recommended “swift” abolition of death penalty except in terror-related cases, noting it does not serve the penological goal of deterrence any more than life imprisonment.

The recommendation by the nine-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment. In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the “abolition of death penalty in all respects in the very near future, soonest.”

The panel, while refusing to recommend any single model for abolishing death penalty, said, “the options are many - from moratorium to a full-fledged abolition bill. The Law Commission does not wish to commit to a particular approach in abolition. All it says is that such a method for abolition should be compatible with the fundamental value of achieving swift and irreversible, absolute abolition.”

While supporting death for those convicted in terror cases and for waging war against the country, the report, ‘The Death Penalty’ said that although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of capital punishment for terror-related offences and waging war will affect national security.

The panel also questioned the “rarest of rare” doctrine in awarding death to convicts.

“After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable.

“Continued administration of death penalty asks very difficult constitutional questions...these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system,” the report said.

One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members - Law secretary P K Malhotra and Legislative Secretary Sanjay Singh - gave their dissenting notes. Justice A. P. Shah, Former Chief Justice of the Delhi High Court presented Report No. 262 - >The Death Penalty .

The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.