Tuesday, July 22, 2008

Supreme Court redefines death penalty & life sentence

Even as Parliament remains the focus of discussion today because of trust (thrust?) vote, a momentous judgment from the Supreme Court on death penalty should be taken note of. This pertains to the Swamy Shraddananda case discussed at the time of hearing on this blog. The unanimous judgment delivered by the three-Judge Bench takes note of the recent Amnesty Report (also discussed here), and acknowledges its contribution to the stand of the Bench in this case.

The Bench commuted the death penalty awarded to the convict by the trial court and the high court, to life sentence, but underlined that life means life, and the convict should be in jail for the rest of his life, and not just for 14 years. This is perhaps the first time when the Court has clearly laid down that executive clemency should not mean that the Court cannot award life sentence beyond 14 years. The Bench found that there is a huge gap between 14 years and death penalty, and the Court's options to impose an appropriate punishment should not be closed.

The Bench said: "The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench."

The Bench has given three specific reasons why in this case, they could not endorse death penalty. First, the convict devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most. Second, though the way of killing appears quite ghastly it may be said that it did not cause any mental or physical pain to the victim. Thirdly, as noted by Sinha J. (in the previous split judgment with Justice Katju) the appellant confessed his guilt at least partially before the High Court. The merits of these reasons are entirely debatable, and this only confirms what the Bench itself admitted, that is, the Judges are not free from subjective element. This inconsistency only shows why the constitutionality of death penalty needs to be reconsidered by a Bench larger than that of Bachan Singh.

1 comment:

Rohit Anand said...

In my opinion, the judgment in question is a sound one. The doctrine of 'rarest of rare' in Bachchan Singh must be looked as laying down a quantitative test rather than a qualitative test for awarding of death penalty. I say this for two reasons. First, what is rarest of rare is invariably subject to change whether for the better or worse and therefore what shocks the conscience of the society (thereby deserving death penalty as per Bachchan Singh)would also change. It is critical that we dont equate heinousness with rareness and it is submitted that it is the latter which is the test for death penalty. Secondly, death penalty being the maximum punishment that can be possibly awarded, it is unfair to make a qualitative threshold above which all acts deserve death penalty as we are then awarding the same punishment for many crimes which greatly differ in the degree of brutality involved. With regard to taking away the right of remission of the prisoner right at the outset , I feel that the courts have no power to do the same. Having said that, it is also wrong to grant remission as a customary practice to each and every prisoner after 14 years. Granting of remission must depend on behavior and other tests which would vary from prisoner to prisoner. However, this doesnt change the fact that it is the right of every prisoner to apply for parole after a certain period of sentence and hence cannot be taken away by the court right at the outset. Moreover, it lies in the domain of the executive and not the judiciary.