Supreme Court's in­no­va­tion on Death Penalty .............................................................

In­no­va­tion on Death Penalty

Libertatem Magazine - - Content - By Prith­wish Roy

The con­cept of “Ju­di­cial In­no­va­tion” for­mal­ized by the Supreme Court in the Ra­jiv Gandhi killers case was once again brought into use in the Tattu Lodhi case wherein a child rapist and mur­derer was given a “spe­cial cat­e­gory” of life sen­tence and thus avoid­ing the death penalty.

The de­bate re­gard­ing death sen­tence has gained mileage for a long time now. Many de­vel­oped coun­tries have done away with death penalty as a mode of pun­ish­ment how­ever in In­dia still con­tin­ues with it. It is highly para­dox­i­cal that In­dia, a coun­try which holds the prin­ci­pal of re­for­ma­tion so close to its crim­i­nal law ju­rispru­dence still has the prac­tice of send­ing con­victs to the gal­lows al­beit on a highly vague doc­trine of “rarest of the rare” case.

To bet­ter un­der­stand the un­der­ly­ing ra­tio­nale be­hind death penalty one needs to con­sider the main stake hold­ers in the act. The chief stake­hold­ers are the con­vict, the vic­tim and the state. For the vic­tim or their de­pen­dents to see the per­son who caused them unimag­in­able agony let go af­ter a pe­riod of un­der­go­ing im­pris­on­ment can be deeply har­row­ing, for the state send­ing the con­vict to the gal­lows, spe­cially for cases like heinous rape cases, ter­ror­ism etc. ap­pears to send a mes­sage of de­ter­rence. How­ever, in the process one of­ten needs to keep in mind the con­vict, the so­cio-eco­nomic con­di­tions un­der which he com­mits the crime, his be­hav­ior post the crime, for e.g. most ter­ror­ists come from a back­ground of ab­ject poverty and are thus con­ve­niently brain­washed by ex­trem­ists into tak­ing up arms and then again there are con­victs such as Yakub Me­mon who lent out his full co-op­er­a­tion in in­ves­ti­ga­tion into the Mum­bai blasts and also while be­hind the bars earned de­grees in English Lit­er­a­ture and Po­lit­i­cal Sci­ence and also taught his fel­low in­mates, clearly in­di­cat­ing an in­cli­na­tion to the much sought af­ter “re­for­ma­tion” of crim­i­nal law ju­rispru­dence, yet at the end of the day he was hanged.

Fol­low­ing each in­ci­dent of hang­ing there is al­ways a huge hue and cry and the pur­pose of the pun­ish­ment of death penalty is al­ways dragged into the dis­cus­sion. The op­po­nents of the con­cept put for­ward the main ar­gu­ment that once a per­son is hanged he can’t be brought back again even if there later ap­pears to be ev­i­dence that could have stopped the death penalty. There are many pro­po­nents of the prac­tice of death penalty and their jus­ti­fi­ca­tion for the same is that it helps in cre­at­ing de­ter­rence, ap­peas­ing the wrath of the so­ci­ety etc.,. How­ever, death penalty in it­self is con­tro­ver­sial and even one wrong sen­tence has a mas­sive weigh­tage ow­ing to the fact that it can’t be set right again.

Maybe keep­ing th­ese in mind the Supreme Court of In­dia came up with the “ju­di­cial in­no­va­tion” doc­trine wherein the con­vict is per­ma­nently kept be­hind the bars and not re­leased af­ter 14 years in the name of life im­pris­on­ment which is truly a great al­ter­na­tive to the ex­treme step of death penalty. The ap­proach is lauda­tory in the sense that it takes care of both the vic­tims, in­clud­ing the so­ci­ety and also the con­vict, i.e., he will be kept be­hind the bars for the re­main­der of his life if he is in­ca­pable of re­for­ma­tion and con­sid­ered un­suit­able to join the so­ci­ety at large.

The ob­ser­va­tions of the Supreme Court in a bench con­sist­ing of Jus­tice Che­lameswar, Jus­tice Kirti Singh, Jus­tice Manohar Sapre, in the case of Tattu Lodha was that while the case did not fall within the am­bit of “rarest of the rare” cases yet the im­pris­on­ment of only 14 years would not be a suf­fi­cient pun­ish­ment for the of­fense com­mit­ted. In the same case the Trial Court and the High Court had awarded death penalty to the con­vict. The Supreme Court clearly held that 14 years would be too less a pun­ish­ment and or­dered that he shall not be re­leased from prison till he com­pletes an ac­tual prison sen­tence of 25 years, while at the same time hold­ing that it would not be fit to send him to the gal­lows.

Look­ing at it from a le­gal per­spec­tive the pun­ish­ment awarded while bridg­ing the gap be­tween the ex­treme life sen­tence and mere 14 years’ im­pris­on­ment, at the same time not vi­o­lat­ing any pro­vi­sions and fall­ing per­fectly within the am­bit of the In­dian Pe­nal Code and the Code of Crim­i­nal Pro­ce­dure.

Look­ing at this sen­tence from a neu­tral point of view, it ad­dresses the con­cerns of both the par­ties, the con­vict and the vic­tim and en­sures that no party loses. It is im­por­tant to the so­ci­ety as they see the con­vict be­ing pun­ished for the of­fence and re­moved from the so­ci­ety on a per­ma­nent ba­sis or at least for a very long pe­riod of time. For the vic­tim it is im­por­tant as he is not sent to the gal­lows and once proven that he is ca­pa­ble of re­for­ma­tion and of be­ing able to live in the so­ci­ety he will be al­lowed to do so and if not then he will be re­moved from it per­ma­nently.

This is the kind of sen­tenc­ing that a crim­i­nal ju­rispru­dence sys­tem like In­dia has long awaited. Death Penalty via var­i­ous sta­tis­tics has not proven to be an ef­fec­tive de­ter­rent and the of­fence for which most death penal­ties have been given, ter­ror­ism and heinous rapes re­sult­ing in death, have been com­mit­ted time and again even af­ter cases of the of­fend­ers be­ing sen­tenced to death. The pri­mary rea­son for the same can be at­trib­uted to the fact that death penal­ties come to lime­light only in sen­sa­tional cases, most death penal­ties don’t re­ceive the amount of cov­er­age that is re­quired to cre­ate the req­ui­site aware­ness which can cre­ate de­ter­rence. For e.g. how many peo­ple be­long­ing to the lower rungs of the so­ci­ety, who are of­ten the chief per­pe­tra­tors of death penalty seek­ing of­fenses, are ac­tu­ally aware of the num­ber of death penal­ties car­ried out and for which of­fenses they are be­ing car­ried out.

Thus, in such a so­cial sit­u­a­tion wherein death penalty fails to achieve its de­sired ob­jec­tive there lies lit­tle sense in con­tin­u­ing with it in its present form and also af­ter re­ly­ing on a doc­trine as vague as “rarest of the rare”, this in­no­va­tive ap­proach of the Apex court makes much more sense, both to the so­ci­ety and to the state, which is wel­fare-ori­ented in na­ture and seeks to re­form rather than to re­tribute.

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