Introduction

• In questioning the merits of retaining the death penalty, Justice Kurian Joseph has re-ignited a debate that is important and requires serious thought.
• Justice Joseph holds a view that the time has come to review the death penalty, its purpose and practice.
• 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.

Constitutionality of death penalty

• The unconstitutionality of death penalty was raised in the case of Bachhan Singh v State of Punjab. The Supreme Court in that case said that death penalty is constitutional but should be given only in the rarest of rare cases.

Questions raised on decision making in capital punishment

• The moot question raised here is the decision-making process of a Judge in a case of capital punishment as the life of the person depends on the reasons articulated by such honorable Justices.
• In this aspect, concerns over judge-centric variations of arguments have been raised in the past.
• The Supreme Court itself spoke of the “extremely uneven application” of the norms laid down in Bachhan Singh.
• Even the Law Commission, in its Report in 2015, said that the constitutional regulation of capital punishment attempted in that case has failed to prevent death sentences from being “arbitrarily and freakishly imposed”.
• Justice Joseph has highlighted Law Commission’s concern that there exists no principled method to remove such arbitrariness from capital sentencing.

Public outrage and capital punishment

• In recent times, public outrage, the need for deterrence, and the clamor for a befitting punishment to render substantial justice have dominated the general discourse.
• In cases of heinous crimes (eg: Nirbhaya case), it becomes less important for the public to understand the reason of punishment than the imposition of punishment
• Thus, whether the punishment has been given to reform the person or to punish the person or for retribution becomes less significant.
• The quantum of punishment becomes more important (whether the punishment is capital punishment or life imprisonment) as only the quantum of it seems to serve ends of justice in the eyes of the public at large.

Checks and balances to avoid arbitrariness

• The Supreme Court has narrowed the scope of giving capital punishment by laying down the norms of rarest of rare cases in Bachhan Singh v State of Punjab.
• Reviews and petitions are routinely admitted by the Supreme Court and Review Petitions are heard in open Courts on capital punishments.
• The treatment of prisoners serving death sentence has been humanized, and there is scope for judicial review even against a sovereign decision denying clemency.

Conclusion

• Thus, the question of capital punishment needs to be debated away from the general public discourse and on a higher moral plane where there shall be no death penalty in law, regardless of the nature, circumstances and consequences of an offence.
• The views of the Law Commission and Justice Joseph on abolishing capital punishment should not be ignored and must be debated.