By Amritananda Chakravorty
Justice Kurian Joseph retired from the Supreme Court on 29th November, 2018, after a distinguished tenure of almost six years, being elevated to the Supreme Court in March, 2013. On 28th November, 2018, he was part of a three judge bench in deciding a criminal appeal, where the bench unanimously commuted the death sentence awarded to the convict to life sentence, but moving beyond commutation, Justice Joseph chose to delve into the vexed question of death penalty, and whether it was time for a rethink on the validity of capital punishment.
The Supreme Court had upheld the constitutional validity of death penalty way back in 1981 in Bachan Singh vs. State of Punjab[(1980) 2SCC 684], wherein it laid down the test of ‘rarest of rare’, i.e., death penalty should be awarded only in the ‘rarest of rare’ cases, when the alternative is unquestionably foreclosed.
Justice Joseph pointed out that different benches of the Supreme Court had lamented in various judgments the lack of uniform application of the principles in Bachan Singh. The principles, though, should be followed till they are overhauled. He also highlighted the difference in the two reports by the Law Commission in the year 1967 and in the year 2015, which it had written on the special request of the Court. The former had asked for the retention of the penalty but the latter after extensive research came to the conclusion that the death penalty was ineffective to deter offences.
Justice Joseph further noted that “having regard to the said report of the Law Commission, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’ and that capital punishment has failed to achieve any constitutionally and penological goals, we are of the view that a time has come where we review the need for death penalty as a punishment, especially in purpose and practice.” [Channu Lal Verma v State of Chhattisgarh, Criminal Appeal No. 1482-83 of 2018, date of judgment: 28.11.2018]
Historically, one of the main arguments in favour of retention of death penalty is that it deters future crimes, especially murders and accordingly, death penalty is a more effective deterrent than long-term imprisonment. However, there is no conclusive proof to establish this claim, which has engaged the minds of scholars, social scientists and penologists for over a century now. In fact, recent studies show that research till date is not conclusive whether capital punishment decreases, increases, or has no effect on homicide rates, and these research findings should not influence policy deliberations . It is argued that owing to the lengthy appeal process and rarity of executions, as compared to the number of people sentenced to death sentence, the deterrent value of capital punishment is hardly different from long-term imprisonment. This position was brought out by a recent survey of the top criminologists of the world, majority of whom agreed that death penalty does not add any significant deterrent over long-term imprisonment.
Another of the main arguments in favour of capital sentence is that it serves as ‘just deserts’ for the criminal, i.e., the criminal deserves the death sentence that he/she has inflicted on the victim by committing homicide. Retribution, as one of the penological theories, has appealed to jurists and legal scholars for long and is based on the doctrine of lex talionis, which asserts that a person deserves to experience the suffering he/she has caused. However, scholars argue that lex talionis is not a correct doctrine, since no legal system would allow the rape of a rapist, assaulting an assaulter, amongst others. Still, death penalty is an exception, wherein it is considered to be justifiable by some that a person who has murdered another person ought to be given death penalty, as part of ‘just punishment’.
It is argued that retribution, as a legitimate goal of sentencing policy, has no role in a constitutional democracy like India. The Hon’ble Supreme Court in Shatrughan Chauhan and Anr. v. Union of India (UOI) and Ors. (2014 (3) SCC 1) has observed that “retribution has no constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same.” The desire for retribution often hides the primitive notion of private revenge to be extracted on behalf on behalf of the victim, which is incompatible with modern penology that places premium on reformation and corrective approach.
As many abolitionists argue, the main contention against retention of capital punishment is that it deprives people of the opportunity to reform, since by executing convicts, it deems certain people so evil that they are incapable of reforming themselves. The argument that certain hardened offenders are beyond reform is a fallacy because there is no way of accurately predicting that a particular offender can never be reformed. Justice Bhagwati in his dissenting opinion in Bachan Singh had noted that “the hope of reforming even the worst killer is based on experience as well as faith and to legitimize the death penalty even in the so called exceptional cases where a killer is said to be beyond reformation, would be to destroy this hope by sacrificing it at the altar of superstition and irrationality.” In fact, if reformation is one of the objectives of criminal justice system, then capital punishment goes against that very objective by extinguishing life and putting an end to any possibility of reformation.
It is hoped that Justice Kurien’s words would reignite a debate on the death penalty in India, and we move towards a humane and compassionate society and legal regime.
(IPA Service)
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