The proposed recommendation of the National Law Commission for abolition of death penalty, prima facie, appears to be based on three facts. First, most of the advanced countries in the world have abolished the death penalty being a cruel and inhuman sentence. Secondly, there is no rational foundation for awarding death penalty and the discretion of the judge varies from person to person. Thirdly, in our country the death penalty has not served as a deterrent measure as the heinous crime falling in the category of “rarest of rare” cases are committed frequently.
However, I am of the candid opinion that the death penalty is required to be retained in our book with certain amendments for two reasons. Firstly, it is not just a punishment given to the criminal concerned, but it also gives a strong signal to other like-minded people. Secondly, it works as a deterrent measure against such criminals who are the menace to society. I have come across the cases wherein the death penalty by sessions judge was confirmed by the High Court and even the SC upheld it. However, even after the rejection of the mercy petition by the President, the High Court again entertained a petition of death convicts challenging the capital punishment and stayed the death penalty. Naturally, the death convicts are interested in prolonging petitions hoping that courts would turn the death penalty into life imprisonment on the account of delay. This results in sending a message to the people at large that death penalty has no useful purpose.
I would have been happy if the Law Commission would have considered as to how the execution of death penalty can be expedited or how delay can be avoided. I will not say that once the sessions court has imposed death then it should expeditiously be executed. But certain time limit is required to be prescribed while deciding petitions challenging the death penalty. And there should be provision that if such appeals or mercy petitions are not decided in a stipulated time period then death penalty should stand rejected. But, it should not be taken out of the book.
Advocate Ujjwal Nikam is a famous special public prosecutor who has represented the state or the CBI in cases such as 1993 Bombay bomb blasts, 26/11 terror attacks in Mumbai and Gateway of India twin blasts. He has the record of securing maximum death penalties in Maharashtra....