Death penalty, even in rarest of rare cases, is ‘constitutionally unsustainable’, the Law Commission said on Monday, August 31, as it recommended swift abolition of capital punishment except in terror cases, noting it does not serve as a deterrent any more than life imprisonment.

“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,” a report by the Law Commission mentioned.

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.’

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.

One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members — Law secretary PK Malhotra and Legislative Secretary Sanjay Singh gave their dissenting notes. The Law Commission comprises a Chairman, three full-time members, two ex-officio members who represent the government, and three part-time members.

“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,” said the panel, while refusing to recommend any single model for abolishing death penalty.

“Recommending blanket abolition of death sentence or moratorium on death penalty in heinous crimes is not an appropriate course particularly keeping in view the circumstances prevailing in our country,” said Justice Mehra.