The criterion followed by courts in awarding death sentence to guilty on the basis of the ‘rarest of rare' nature of the killing was questioned by senior advocates of India at the Commonwealth Law Conference here on Monday.
They argued that the norm was subjective and differed in perception from judge to judge. The penalty should be abolished because the fallibility of judgment after the person was executed was irreversible, said the former Attorney General, Soli J. Sorabjee, intervening in the debate.
Some other advocates also voiced the demand to abolish death penalty, scrapped in 133 other countries, since there was no evidence that the punishment was a deterrent to crime. Senior advocate T.R. Andhyarujina described the usage of the phrase as ‘most whimsical and freakish' to single out the poor and humble for the sentence, while the rich and affluent escaped from its clutches. Instead, his colleague in the Supreme Court, A. Sundaram, wanted courts to specify a motive for ‘death' or ‘no death' sentences. There should be no shades of grey in judgments.
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The Vice-Chairman of Law Commission, K.T.S. Tulsi, said there was need to formulate guidelines to establish the nature of ‘rarest of rare' and remove the inherent arbitrariness. India's position regarding the death penalty crystallised in the Bachan Singh vs State of Punjab case which called for imposing the sentence in ‘rarest of rare' cases drawing up a balance sheet of aggravating and mitigating factors. A balance must be struck between the two.
However, the problem with the dictum was that there was no reliable pattern under which judges could exercise this discretion, Mr. Tulsi added.
The former Additional Solicitor-General, R.N. Trivedi, regretted that three decades have passed since the minority judgment of Justice P.N. Bhagwati, who later became Chief Justice of Supreme Court, in the Bachan Singh case saying untrammelled, unfettered, standardless and unguided discretion was conferred on courts to choose between life and death.
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