Law Commission chairman Justice (retd) A P Shah. Law Commission chairman Justice (retd) A P Shah.

In what will be a reversal of its earlier stand, the Law Commission of India is set to recommend abolition of death penalty in the country.

A 272-page draft report of the Law Commission, circulated among members, favours speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case.

India is one of 59 countries where the death penalty is still awarded by courts. More recently, the issue was debated in the run-up to the July 30 hanging of Mumbai blasts convict Yakub Memon.

Watch: End Death Penalty, Keep It For Terror Only, says Law Commission (App users click here)

The draft report hopes that the “movement towards absolute abolition will be swift and irreversible”. In 1962, the Law Commission, in its 35th report, had recommended retention of death penalty.

The final report, which is likely to be cleared by seven full-time members, including chairman Justice (retired) A P Shah, and four part-time members, could be submitted to the government either over the weekend or next Monday. There may not be unanimity on the recommendation for ending death penalty because some members are opposed to it. The term of the Commission ends on August 31.

Last year, the Commission had been tasked by the Supreme Court to study the issue of death penalty and submit a report on it.

The Commission held wide-ranging consultations on the issue where majority of the participants, including representatives of some political parties, favoured abolition of the death penalty.

Commission has observed: “The death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. The quest for retribution as a penal justification cannot descend into cries for vengeance.”

In its report, the Commission has pointed out that despite the landmark Supreme Court judgment in Bachan Singh versus State of Punjab — the Supreme Court laid down the “rarest of rare” doctrine and held that capital punishment should only be awarded in the “rarest of rare cases” — the application of death penalty “continues to be remain excessive, arbitrary, unprincipled, judge-centric and prone to error”.

The draft report also notes that “there exists no principled method to remove such arbitrariness from capital sentencing” and that not only is its arbitrary and uncertain, it is “applied disparately and disproportionately against socially and economically marginalised groups, reflecting systemic biases and structural disadvantages”.

“The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistake… The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty,” the draft report states.

The Commission, while recognising lack of consensus among lawmakers on the issue, has suggested a “possible approach” towards achieving the goal of abolition of death penalty.

“The Commission suggests that the death penalty be immediately abolished for all crimes other than terror offences. At the same time, for terror offences a moratorium as regards sentencing and execution be immediately put in place. This moratorium can be reviewed after a reasonable period.”

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