tag:blogger.com,1999:blog-15602189.post6614677730370555529..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: Guest Blogger: Bikram Jeet Batra's review of a recent SC Judgment on Death PenaltyAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-15602189.post-16107332555314384042008-09-19T09:31:00.000+05:302008-09-19T09:31:00.000+05:30Hello,A recent judgment (early September) by Pasay...Hello,<BR/><BR/>A recent judgment (early September) by Pasayat J. is relevant to this discussion. <BR/><BR/>One aspect of the judgment in Sharaddananda (both the two-Judge split and the 3-Judge decision) was the discussion on the appropriateness of the death penalty in cases where the conviction was based solely on circumstantial evidence. Justice Sinha seemed to suggest that given the nature of the death penalty, it would be wiser not to impose it where conviction was based solely on circumstantial evidence. The larger Bench - in general - agreed with this view.<BR/><BR/>Justice Pasayat - writing for a two Judge Benchin Shivaji v. State of Maharashtra Crl. Appeal 1409/2008 - refutes this logic, stating that the nature of evidence is immaterial at the time of sentencing; even when the death sentence is being contemplated.<BR/><BR/>What is interesting is that he makes no reference to Sharaddananda - either on the specific point or in connection with the general move away from the death penalty in Sharaddananda.<BR/><BR/>Is Justice Pasayat's judgment per incuriam? Or will Sharaddananda be interpreted as conflicting with earlier larger Bench decisions? <BR/><BR/>In any event, this does serve to highlight another of the arguments against the death penalty - does too much depend on which Bench you end up before?Mihir Naniwadekarhttps://www.blogger.com/profile/10774588998184976540noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-57603284885638920852008-08-13T14:11:00.000+05:302008-08-13T14:11:00.000+05:30Remission of sentences should left to the executiv...Remission of sentences should left to the executive to decide.Court can insist on rules and guidelines<BR/>that are applicable to all life term convicts so that the bias in<BR/>decision making in removed or atleast curtailed.Unfortunately by this judgment the judiciary has assumed that only it has the<BR/>final say in the matter.Remission<BR/>of sentences is also an issue of<BR/>public policy and condonation<BR/>and remissions do have a place<BR/>in criminal justice system.<BR/>Courts should step in if there<BR/>is an abuse of power to grant<BR/>remissions and pardon.Unless proved<BR/>otherwise such acts of remission<BR/>should be deemed to have done<BR/>in good faith and for valid reasons.To deny any remission by the executive in some cases is certainly an act of over reach.ரவி ஸ்ரீநிவாஸ்https://www.blogger.com/profile/10176389904737294055noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-4185285786739510782008-08-12T23:18:00.000+05:302008-08-12T23:18:00.000+05:30Hi Mathew,Here's what the judgment says in Para 38...Hi Mathew,<BR/><BR/>Here's what the judgment says in Para 38: "This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior Courts in their respective States."<BR/><BR/>I think the last bit makes quite clear that the intent is to create a new life imprisonment that the executive cannot 'interfere' with.Bikramhttps://www.blogger.com/profile/00179749883906373264noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-50439715049449511542008-08-12T21:24:00.000+05:302008-08-12T21:24:00.000+05:30Bikram,Dont you think this is an instance of the j...Bikram,<BR/><BR/>Dont you think this is an instance of the judiciary issuing a direction on a possible future exercise of executive discretion (admittedly unjustified and clearly lacking constitutional propriety) rather than any attempt at interfering with any legislative function. If so, “he shall not be released from prison till the rest of his life” may merely be a directive to the executive and while it has constitutional and penological implications, it may be different rom the obvious problems with judicial attempts to legislate a new punishment. Wot do you think?<BR/><BR/>No doubt, of course, it is a case of judicial over reach (or as a judge once remarked, a lack of modesty). <BR/><BR/>regards,<BR/><BR/>Mathew?https://www.blogger.com/profile/04467473810474491373noreply@blogger.com