According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.
Has death penalty in the statute served as a deterrent for heinous crime?
A three-judge bench of the Supreme Court in a verdict on Wednesday expressed different opinions on this with one saying that the provision of capital punishment has failed to become a deterrent and the other two holding that a larger bench had already decided its continuance in the rarest of rare cases.
A three-judge bench comprising justices Kurian Joseph, Deepak Gupta and Hemant Gupta commuted the death sentence of a man and awarded him life term for murdering three persons including two women.
Though the three judges differed on the applicability of death penalty, they were unanimous in commuting the death sentence of Chhannu Lal Verma.
Justice Joseph, who is to superannuate on Thursday, while pronouncing the verdict, read his views on the applicability of death sentence.
Referring to the 262nd report of the Law Commission, Justice Joseph said, "The constitutional regulation of capital punishment attempted in Bachan Singh versus State of Punjab in 1980 has failed to prevent death sentences from being 'arbitrarily and freakishly imposed' and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice."
He also said that till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high.
According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.
"Every death penalty case before the court deals with a human life that enjoys certain constitutional protection and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that," Justice Joseph, who wrote judgement for the bench, said.
Justices Deepak Gupta and Hemant Gupta gave divergent opinion on the views expressed by Justice Joseph on applicability of death sentence and said a five-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had already held the constitutional validity of death penalty provided in Indian Penal Code.
"In our view, since the Constitution Bench in Bachan Singh vs. State of Punjab, has upheld capital punishment, there is no need to re-examine the same at this stage," justices Deepak Gupta and Hemant Gupta said.
Justice Joseph, who wrote the verdict for the bench, also voiced his "anguishing concern" with regard to public discourse on crimes which have an impact on the trial, conviction and sentence in a case.
"The court's duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the court when it deals with the collective conscience of the people or public opinion. After all, the society's perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper," he said.
Justice Joseph, while referring to the law commission report said that the court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses.
"In this context, we may also express our concern on the legality and propriety of the people engaging in a 'trial' prior to the process of trial by the court," he said.
Justice Joseph said that it has almost become a "trend" for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal.
"This undoubtedly puts mounting pressure on the courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice," he said.
The three judges were unanimous on their view that the Chhattisgarh High Court in the case at hand has erroneously confirmed death penalty on the man without correctly applying the law laid down in Bachan Singh and other cases.
"The decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest of rare case where the alternative option is unquestionably foreclosed," the bench said.
It said that no evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced.
It noted that the superintendent of the jail has given a certificate that his conduct in jail has been good during the pendency of his appeal in apex court for past four years.
"Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed," it said.
Source: Press Trust of India, November 28, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
