“Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that.”
Justice Kurian Joseph, while commuting death penalty in a triple murder case, opined that “a time has come where we view the need for death penalty as a punishment, especially its purpose and practice”.
However, Justice Deepak Gupta wrote a separate brief judgment in which he disagreed with this view taken by Justice Joseph. Justice Hemant Gupta has concurred with the view that, since the Constitution Bench in Bachan Singh v. State of Punjab, has upheld capital punishment, there is no need to re-examine the validity of Death Penalty at this stage.
Paragraph 23 of the Justice Joseph’s judgment reads: “Having regard also to the said Report of the Law Commission that the constitutional regulation of capital punishment attempted in Bachan Singh (supra) has failed to prevent death sentences from being “arbitrarily and freakishly imposed” and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice.”
Justice Joseph, in his judgment, discusses about future of death penalty in India. He notes that, though there is a Constitution Bench judgment in Bachan Singh, which should be followed, until it is duly revisited, it cannot be altogether ignored that various Apex Court Benches have, over a period of time, expressed concern regarding the inconsistent application of the principles laid down in Bachan Singh and have also taken forward the application of the principles to reduce such inconsistencies.
Referring to 262nd report of Law commission, he said: “It may be relevant to note that the Constitution Bench in Bachan Singh (supra) has made extensive reference to the 35th Report of Law Commission submitted in the year 1967, which justified the retention of death penalty. Interestingly, Report No. 262 submitted in the year 2015 prepared and submitted based on the request made by this Court has taken a different view, after extensive research and with reference to the international approach.”
Justice Joseph also expressed his concern as to how public discourse on crimes has an impact on the trial, conviction and sentence in a case. He said: “It is also a matter of anguishing concern as to how public discourses 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 which should weigh with the Court when it deals with the collective conscience of the people or public opinion. After all, the society’s perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper. As stated in Report No. 262 of the Law Commission ……. “the Court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses. Public opinion in a given case may go against the values of rule of law and constitutionalism by which the Court is nonetheless bound” and as held by this Court in Santosh Bariyar (supra) public opinion or people’s perception of a crime is …….“neither an objective circumstance relating to crime nor to the criminal”. In this context, we may also express our concern on the legality and propriety of the people engaging in a “trial” prior to the process of trial by the court. It has almost become a trend for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal. This undoubtedly puts mounting pressure on the courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice.”
He further adds: “Till the time death penalty exists in the statute books, the burden to be satisfied by the Judge in awarding this punishment must be high. The irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered. Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that.”