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The fire moved quickly through the house, a one-story wood-frame structure in a working-class neighborhood of Corsicana, in northeast Texas. Flames spread along the walls, bursting through doorways, blistering paint and tiles and furniture. Smoke pressed against the ceiling, then banked downward, seeping into each room and through crevices in the windows, staining the morning sky.
Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.
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India: A civilised and progressive jurisprudence calls for banning the death penalty

An aspect that requires discussion is the meaning of “rarest of rare” that is used to identify the category of offenders who may be sentenced to death.

Over the last few days, the Supreme Court has confirmed death sentences twice, and in close succession. On May 3, the Court rejected the review petition of Vasant Sampat Dupare, convicted and sentenced to death for the rape and murder of a small child. The second, and more infamous case, relates to the death penalties for the convicts in the December 16 Delhi gang-rape case.

In both these cases, the Supreme Court did not consider it fit to remand the cases to the original sentencing court, despite agreeing that the trial court had erred by not considering aggravating and mitigating circumstances. This becomes important where the penalty sought to be imposed is that of death, which stands qualitatively and legally on a completely different footing from any other punishment. This deprives the convict of his procedural right of confirmation and appeal of the sentence.

Indeed, the Supreme Court routinely rejects a vast majority of the special leave petitions furnished before it each week, and remands a large number of criminal cases for consideration. Why was it that such a direction was not considered fit in these cases, even when the Court itself agreed that the sentencing carried out by the trial court was legally deficient? So much so that it considered mitigation evidence afresh, and reached the conclusion of death. The Supreme Court, in not referring the cases back to the trial court for sentencing, has, in fact, exercised jurisdiction which is properly with the lower courts.

Not only does the procedure adopted by the Court curtail the due process rights of the convicts under Article 21, but it also raises the question of whether the Court itself has created a differential criteria for the treatment of petitioners before it. These cases are similar in terms of the crimes committed. They are offences for which there is substantial demand for visible, retributive punishment of the offenders. Would it be possible then that the judiciary may be under pressure to impose extraordinary punishment in such cases, which could possibly run counter to procedural and Fundamental Rights?

Another aspect that requires discussion is the meaning of “rarest of rare” that is used to identify the category of offenders who may be sentenced to death. In the case of Bariyar, the Supreme Court had shown that its determination of rarest of rare was providing irreconcilable results, with similar cases falling in and out of the category. The Bariyar judgment may also be used to show that the determination of which cases merit death are influenced by the individual predilections of judges. The only safeguard that could possibly remedy this would be to look for the consistent award of death right from the trial court upwards, before concluding that a case merits capital punishment.

If one agrees with this aspect of Bariyar’s reasoning, then the present cases become unsatisfactory on another ground. If the trial court had, as the Supreme Court seems to agree, not done a proper analysis of whether these cases were rarest of rare instances, then the question of consistency in sentencing vapourises. In essence, there is no legally tenable sentence at the level of the trial court at all. Therefore, a determination of whether or not these cases fall within the rarest of rare category cannot be done, unless the matter is remanded to the court which first sentenced them.

If these two cases are considered to be representative, it leads us to consider the possibility of legal and Fundamental Rights being not honoured for heinous offences accompanied by public outrage. The true test of whether any legal rights exist in the first place is how strictly we follow them in cases that test us the most. Whether we put anything by the rights to life and liberty must be seen in situations when those rights are under the most pressure and the temptation to ignore them is the highest. Any other understanding is chimerical to the entire notion of having rights.

The above also raises questions as to whether the death penalty has a place in our legal system, if inconsistencies in its application are being witnessed. In particular, if one sees that the very limited scope of rarest of rare is itself not capable of being applied in a manner which would provide predictability and equality, there can be no guarantee as to the proper exercise of the punishment. Therefore, the problem with retaining the death penalty will continue to exist even when its scope is limited. The only tenable option that remains would be that of abolition.

It is only by abolishing the death penalty in toto that we would be able to give full meaning to our commitment to a civilised and progressive jurisprudence in line with international trends.

Source: Indian Express, Opinion, Kunal Ambasta, May 16, 2017. The writer is assistant professor, National Law School of India University, Bangalore.

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