Supreme Court’s Innovation of Death Penalty

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The concept of “Judicial Innovation” formalized by the Supreme Court in the Rajiv Gandhi killers case was once again brought into use in the Tattu Lodhi case wherein a child rapist and murderer was given a “special category” of life sentence and thus avoiding the death penalty.

The debate regarding death sentence has gained mileage for a long time now. Many developed countries have done away with death penalty as a mode of punishment however in India still continues with it. It is highly paradoxical that India, a country which holds the principal of reformation so close to its criminal law jurisprudence still has the practice of sending convicts to the gallows albeit on a highly vague doctrine of “rarest of the rare” case.

To better understand the underlying rationale behind death penalty one needs to consider the main stake holders in the act. The chief stakeholders are the convict, the victim and the state. For the victim or their dependents to see the person who caused them unimaginable agony let go after a period of undergoing imprisonment can be deeply harrowing, for the state sending the convict to the gallows, specially for cases like heinous rape cases, terrorism etc. appears to send a message of deterrence. However, in the process one often needs to keep in mind the convict, the socio-economic conditions under which he commits the crime, his behavior post the crime, for e.g. most terrorists come from a background of abject poverty and are thus conveniently brainwashed by extremists into taking up arms and then again there are convicts such as Yakub Memon who lent out his full co-operation in investigation into the Mumbai blasts and also while behind the bars earned degrees in English Literature and Political Science and also taught his fellow inmates, clearly indicating an inclination to the much sought after “reformation” of criminal law jurisprudence, yet at the end of the day he was hanged.

Following each incident of hanging there is always a huge hue and cry and the purpose of the punishment of death penalty is always dragged into the discussion. The opponents of the concept put forward the main argument that once a person is hanged he can’t be brought back again even if there later appears to be evidence that could have stopped the death penalty. There are many proponents of the practice of death penalty and their justification for the same is that it helps in creating deterrence, appeasing the wrath of the society etc.,. However, death penalty in itself is controversial and even one wrong sentence has a massive weightage owing to the fact that it can’t be set right again.

Maybe keeping these in mind the Supreme Court of India came up with the “judicial innovation” doctrine wherein the convict is permanently kept behind the bars and not released after 14 years in the name of life imprisonment which is truly a great alternative to the extreme step of death penalty. The approach is laudatory in the sense that it takes care of both the victims, including the society and also the convict, i.e., he will be kept behind the bars for the remainder of his life if he is incapable of reformation and considered unsuitable to join the society at large.

The observations of the Supreme Court in a bench consisting of Justice Chelameswar, Justice Kirti Singh, Justice Manohar Sapre, in the case of Tattu Lodha was that while the case did not fall within the ambit of “rarest of the rare” cases yet the imprisonment of only 14 years would not be a sufficient punishment for the offense committed. In the same case the Trial Court and the High Court had awarded death penalty to the convict. The Supreme Court clearly held that 14 years would be too less a punishment and ordered that he shall not be released from prison till he completes an actual prison sentence of 25 years, while at the same time holding that it would not be fit to send him to the gallows.

Looking at it from a legal perspective the punishment awarded while bridging the gap between the extreme life sentence and mere 14 years’ imprisonment, at the same time not violating any provisions and falling perfectly within the ambit of the Indian Penal Code and the Code of Criminal Procedure.

Looking at this sentence from a neutral point of view, it addresses the concerns of both the parties, the convict and the victim and ensures that no party loses. It is important to the society as they see the convict being punished for the offence and removed from the society on a permanent basis or at least for a very long period of time. For the victim it is important as he is not sent to the gallows and once proven that he is capable of reformation and of being able to live in the society he will be allowed to do so and if not then he will be removed from it permanently.

This is the kind of sentencing that a criminal jurisprudence system like India has long awaited. Death Penalty via various statistics has not proven to be an effective deterrent and the offence for which most death penalties have been given, terrorism and heinous rapes resulting in death, have been committed time and again even after cases of the offenders being sentenced to death. The primary reason for the same can be attributed to the fact that death penalties come to limelight only in sensational cases, most death penalties don’t receive the amount of coverage that is required to create the requisite awareness which can create deterrence. For e.g. how many people belonging to the lower rungs of the society, who are often the chief perpetrators of death penalty seeking offenses, are actually aware of the number of death penalties carried out and for which offenses they are being carried out.

Thus, in such a social situation wherein death penalty fails to achieve its desired objective there lies little sense in continuing with it in its present form and also after relying on a doctrine as vague as “rarest of the rare”, this innovative approach of the Apex court makes much more sense, both to the society and to the state, which is welfare-oriented in nature and seeks to reform rather than to retribute.

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