In questioning the merits of retaining the death penalty, Justice Kurian Joseph has re-ignited a debate that is important and requires serious thought. What he said cannot be ignored, though the law laid down in Bachan Singh (1980), upholding the validity of the death penalty and laying down guidelines for awarding death in ‘the rarest of rare’ cases’, still holds the field. Even the other two judges on the Bench have disagreed with Justice Joseph’s view that the time has come to review the death penalty, its purpose and practice. But it is impossible to ignore the ethical and practical dimensions of the debate in a world that is increasingly questioning the wisdom of capital punishment. Justice Joseph has underscored the arbitrary manner in which it is awarded by different judges and the way public discourse influences such decisions. Concerns over judge-centric variations have been raised in the past. The Supreme Court itself spoke of the “extremely uneven application” of the norms laid down in Bachan Singh . The Law Commission, in its Report in 2015, said the constitutional regulation of capital punishment attempted in that case has failed to prevent death sentences from being “arbitrarily and freakishly imposed”. Justice Joseph seems to endorse the Commission’s assertion that “there exists no principled method to remove such arbitrariness from capital sentencing”.
In individual cases, much of the conversation about the maximum sentence that may be imposed usually revolves around the nature of the crime, its gravity and cruelty, and the number of fatalities. In recent times, public outrage, the need for deterrence, and the clamour for a befitting punishment to render substantial justice have dominated the discourse. Theories of punishment on whether it ought to be punitive, retributive, reformative or restorative are less relevant to the public imagination and the law enforcers when the crime is grave and heinous. There is a conflict between those who sense the danger of inconsistent application and those who believe in condign justice. This conflict can be resolved only if the debate is taken to a higher plane: a moral position that there shall be no death penalty in law, regardless of the nature, circumstances and consequences of an offence. The Supreme Court has covered considerable ground in limiting the scope, to the ‘rarest of rare cases’. Post-appeal reviews and curative petitions are routinely admitted. Review petitions are now heard in open court. The treatment of death row prisoners has been humanised, and there is scope for judicial review even against a sovereign decision denying clemency. If there still prevails a perception of arbitrariness in the way death sentences are awarded, the only lasting solution is their abolition. The views of the Law Commission and Justice Joseph should not be ignored.
