Death penalty freakishly imposed: Justice Kurian

SC judge says ‘rarest of rare’ test ‘inconsistently applied’

November 28, 2018 10:37 pm | Updated November 29, 2018 01:56 am IST - NEW DELHI

Justice Kurian Joseph. File

Justice Kurian Joseph. File

Justice Kurian Joseph, one of the senior-most judges of the Supreme Court, on Wednesday said the courts had been imposing the death penalty “arbitrarily and freakishly” all these years.

The dissent from within the very corridors of the Supreme Court comes almost four decades after a Constitution Bench upheld capital sentencing as a punishment under the law. A Constitution Bench in the Bachan Singh case in 1980, however, added a rider that judges should award the punishment only in the “rarest of rare category” of cases.

But Justice Kurian, in his judgment while heading a three-judge Bench hearing the appeal of a man sentenced to death in Chhattisgarh, said the test of “rarest of rare” had been “inconsistently applied” by courts. The judge, third in seniority in the Supreme Court, quoted from the 262nd Law Commission report to conclude that the so-called rider of “rarest of rare” had failed to prevent judges from arbitrarily sending the guilty to the hangman.

Justice Kurian’s judgment was based on the appeal of a man sentenced to death in a triple murder case in Chhattisgarh. The other two judges on the Bench, Justices Deepak Gupta and Hemant Gupta, disagreed with Justice Kurian on the point that death penalty was “freakishly” given by courts.

Justice Kurian asked what proper psychological/psychiatric evaluation is conducted before a convict is found to be beyond reform and sentenced to death.

“Without the assistance of a psychological/psychiatric assessment and evaluation it would not be proper to hold that there is no possibility or probability of reform,” Justice Kurian wrote.

Even a condemned man’s good conduct in prison while he waits for the noose, with all hope of life lost, should be taken into consideration in the appellate stage to consider the commutation of his or her death penalty.

Justice Kurian expressed anguish at how public opinion against an under trial sways the trial and ultimately the sentence of punishment. “It is a matter of anguishing concern as to how public discourse on crimes have an impact on the trial, conviction and sentence in a case. The court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor…” Justice Kurian observed.

Justice Kurian said capital punishment has failed to achieve “any constitutionally valid penological goals”. He observed it was time the “need for death penalty as a punishment” needs to be re-examined.

But Justices Deepak Gupta and Hemant Gupta, in a separate opinion, held that death penalty has been consistently upheld as a punishment in law.

However, all three judges on the Bench unanimously commuted to life imprisonment the death penalty of the convict, Chhannu Lal Verma.

The Bench found that Verma was capable of reform as he has exhibited good conduct in prison.

Verma was convicted by a Sessions Court and then by the Chhattisgarh High Court for killing Anand Ram Sahu, his wife Firanteen Bai and raping and murdering their daughter-in-law Ratna Sahu in 2011, and was subsequently awarded a death penalty.

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