Despite building a case for the abolition of the death penalty in all cases, including terrorism, the Law Commission in its final recommendations decided to leave out terror-related offences from the list of crimes for which death should be abolished.
Among the manifold repercussions of death penalty discussed, the report repeatedly returns to the subject of death penalty and terrorism to conclude that “there is no evidence of a link between fighting insurgency, terror or violent crime, and the need for the death penalty.”
It refers to doubts about how death penalty would act as a deterrent for a terrorist who is anyway on a suicide mission. It said terrorism was no ordinary offence and deterrence assumptions needed a relook in terror cases.
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It said the death penalty was often solicited by terrorists, since upon execution, their political aims immediately stand vindicated by the theatrics associated with an execution. They not only get public attention, but often even gain the support of organisations and nations which oppose the death penalty, the report points out. As a reference, the Commission refers to the Indonesian Bali bomber’s reaction to news of his conviction and execution with a “thumbs-up” as if “he had just won an award.”
“Several countries have abolished the death penalty, or maintained moratoriums on executions, despite facing civil wars, threats of insurgency or terrorist attacks. For example, Nepal officially abolished the death penalty in 1990 and did not re-introduce it even in the aftermath of the civil war; Sri Lanka, despite a long civil war, has maintained a moratorium on the penalty; and Israel has only executed once since its formation,” it reasoned, adding that abolition of death penalty did not mean freedom for the condemned and the alternative was life imprisonment.
The Commission clearly states that “there is no valid penological justification for treating terrorism differently from other crimes.” The report lists several cases involving terror charges in which there have been grave miscarriages of justice. As a “recent egregious example,” it points to the Akshardham Temple blasts case of 2002, in which three accused were sentenced to death under the Prevention of Terrorism Act. The Supreme Court later acquitted all the accused while expressing “anguish” at the incompetent probe conducted.
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Yet, it stops short of extending its recommendation of abolition to terror-related offences, citing “concerns raised by lawmakers.” In response to a question from The Hindu , Law Commission chairperson Justice A.P. Shah said the Commission had its own limitations, and decided to leave it to Parliament, given that there was a serious difference of opinion on this among lawmakers.
“The Law Commission needs to be commended for this very positive and long-overdue recommendation. However, my one regret is that the Commission shied away from the full implications of the reasoning and arguments adduced in its report,” said Yug Mohit Chaudhry, a lawyer who represents death row prisoners and strongly advocates for the abolition of the death penalty. “These arguments apply equally to cases of terrorism and non-terrorism alike. It is not possible in law, logic or practise to segregate terror from non-terror within the arguments adduced by the Commission for recommending abolition of the death penalty for non-terror cases,” Mr. Chaudhry said.