Partial abolition of death penalty raises more questions than it answers
The Law Commission recommending that capital punishment in India be ended, except for cases of terrorism and acts of war against the nation, seems to be a progressive view on the face of it. Though it can be argued that the panel is easing India towards a complete abolition of the death penalty, the suggestion, if implemented, is likely to raise more complications for India’s legal system. For instance, acts of terror are usually marked by death by the numbers. So, why should a serial killer—responsible for multiple deaths—be treated differently than a terrorist? Or, should the courts remain neutral to the degree of brutality of two different perpetrators of the same kind of crime? Also, is there a case, under the principle of retributive justice, that the victims’ rights are violated if the death penalty is abolished?
The provision of capital punishment, across nations, has been a polarising one. Many nations, as well as states within federal structures like the US, have moved to end death penalty. There is no evidence that capital punishment has proved to be more effective than incarceration as deterrent. While the Law Commission has pointed out that even the ‘rarest of the rare’ principle doesn’t work—the rising number of death sentences handed out by lower courts being quashed by the higher courts indicates how fuzzy a guiding principle ‘rarest of the rare’ is—a limited retention is likely to do more damage than good. To be sure, the principle of restorative and rehabilitative justice need not apply to all cases. But there are many penal provisions globally that can serve the purpose of retributive justice other than just capital punishment. For instance, provisions for concurrent/consecutive sentencing and/or absolute solitary confinement are considered to be stringent retributive measures.