The Supreme Court has spoken in favour of the death penalty even if there is great delay in keeping the mercy petition pending. The Supreme Court is final not because it is infallible but it is infallible because it is final. I do not agree with the wisdom of the highest court. I consistently opposed the death penalty in my judgments and the Supreme Court once considered my judgments on capital punishment and held that in the rarest of rare cases alone the death sentence need be inflicted. What is “rare” is obscure and judges may disagree on this.

Thus, the severest sentence under the law is left marginally undefined. This is unfair. The broad trend in the world in the field of punitive jurisprudence is against the death sentence. In the name of humanism and the culture of compassion, the time has come for a judicial pronouncement of the death sentence on the death sentence.

The uncertainty inherent in the death penalty gives the law a tortuous dubiety. Moreover, the long delay in deciding a mercy petition puts the condemned through much mental agony, which is certainly a consideration for commutation of the death sentence into life imprisonment.

Article 51A of our Constitution has made it a fundamental duty of every citizen to show compassion to all living creatures. Even England does not have the death penalty anymore. So why not the land of the Buddha and Gandhi?

(V.R. Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

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