Paradigm of Law - More Dreadful the better

For every thing there is a season. Capital punishment has been the subject of a strong debate in this election month ..At the out set, kudos to Supreme court  for assumptively  sorting out  the inconsistencies  that marked the death penalty jurisprudence and laid down a guide line to ensure  that the mercy petitions of death row convicts are fairly considered by executives. The apex court in Shatrughan Chauhan v. Union of India    (2014 (1) CTC  484 has changed the landscape of death row phenomenon cases, by overturning its own judgment Bhullar v. NCT. The "Aam Aaadmi could  perceive this as institutional amnesia. When a precedent proves to be impractical, harmful or when it contradicts or ignores the original intent of law the supreme court may overrule its own decision In [Lily Thomas v Union of India (2000) 6 SCC 224; AIR 2000 SC 1650] the apex court ruled that -Where the earlier decision is rendered per incu-riam of a relevant constitutional or statutory provision or of some decision of its own the court may over turn the judgment. The fact that court is permitted to overrule its own precedent demonstrates groundbreaking view of law;  but it is hard to predict when the Court will rely on stare decisis and when it will depart from it. We mango people in banana republic reckon that even the judgment of supreme court is not supreme judgment.

Article 6 of the International Covenant on Civil and Political Rights known as ICCPR, protects the right to life but allows the use of the death penalty under specific conditions. Among these conditions, the death penalty “may be imposed only for the most serious crimes,” and must be in accordance with both the law in force at the time of the commission of the crime. The significance attached to  Article 6 is that  it  may not be invoked to prevent or delay the abolition of the death penalty.

The wisdom of the death penalty has come under severe  attack .Is blanket commutation of death row an unconventional extension of mercy? Why the same reprieve was not given to Afzal  Guru? How  can the state play the central and exclusive role in granting remission for an offence investigated by C.B.I.? Is mass commutation of death row an unmitigated moral disaster? whether the power  to commute sentences is still relevant in the epoch of terrorism? Whether delay on death row, by itself, constitutes a human rights violation?  Is mercy  conceived as a compromise with justice and related to political power? Whether law should look into the distinctive character of the murder viz whether a good man has murdered a bad man or a bad man a good one? If the courts are conscious of the fact that the charges are trumped up ,why our system is uninterested in investigating the truth? Do not the  victims family members who are co victims   pass through grieving processes and suffer significant loss? Do not perpetrators of heinous crime  threaten the safety and welfare of the nation? Is there a constitutional right to freedom from inhuman punishment? if prolonged proceedings per se constitute cruel, inhuman, or degrading treatment and a mental strain for the convicted prisoners then the fate of gobs of litigants trembling in balance could be depicted as what? Do not  ambiguous meaning of life imprisonment has a negative impact on the utility of the sentence? Does our system protect, coddle and pamper elements who commit heinous offence? Is the rarest of rare standards a correct standard? Is there an iota of proof of actual innocence? Is repentance a factor to commute the death sentence? Is socio economic factor a mitigating circumstance for commuting death sentence? Does commuting death sentence  not significantly set back the victim’s interests and disregard the victim’s dignity? Huh. Readers don’t damn me if the questions are  stupefying blow to the head and find these questions dithering since they are deceptively ambiguous, insensible, vague, conflated,  incomplete, overly broad, or rhetorical and that it cannot be reasonably answered in its current form. These questions are not legal but I make pretensions to showcase as a set of Socratic questions.  There are right answers even to most difficult and intricate questions notwithstanding the controversy over it,we can arrive at the right answers only if we know more of the facts.

It would be otiose to dwell into the  issue whether the accused were guilty, and whether  they had a fair chance to prove their innocence. I  am not a wizard to challenge the wisdom  of the apex court albeit questioning the sapience of public official or a judgment is a legitimate exercise and central to democracy.

Who and how a state is going to act for remission of sentence is a key political question in the election frenzy . What  began largely as politically motivated demonstrations against selected executions has evolved into something more complex and much more significant .Today's demonstrators are united, not by ideology, but by self-interested ethos that sees all executions as equally repugnant. Requital  demands that an offender receive the punishment he deserves. Bible also enjoins, “The murderer shall surely be put to death” recognizing that the death penalty can be warranted whatever  the motive. life is sacred, those who wrongfully take another human life must lose their own lives. This is a form of restitution; a matter of justice 

The doctrine of retributive justice is crudely manifested in the concept  of “an eye for an eye,”but father of our nation Mahatma Gandhi attributed that An eye for an eye leaves the whole world blind. If Gandhi is alive he would be on the defensive. I am sure-footed that  No reasonable person would suggest that criminal behavior should not be sanctioned and deterred. Declassified documents reveal that Winston Churchill, Britain's wartime Prime Minister, planned to execute Adolf Hitler in the electric chair if the Nazi leader fell into allied hands.

There are speculative empirical reasons that have a digressive relation to  retribution. Abolition of  capital punishment may prevent innocent people from being wrongfully put to death Every ones concern is about wrongful conviction of a person charged with a capital crime.The apprehension is  the execution of an innocent should not even be the rarest of the rare. The crucial function of the court is to prevent an unjust conviction..Old Testament Law reflected a great reluctance to impose the death penalty. For example, circumstantial evidence wasn't admitted. capital punishment could not be imposed when the offender did not act intentionally.

People believe that some crimes are so sepulchral that the offenders deserve  to die and that the execution of perpetrators is proportionate to the heinousness of their crimes. The  26/11 (Mumbai attack) and  high-profile attack on the Parliament of India -these incidents have reduced  our freedom, easy travelling, going anywhere we wished to go. Therefore it has evoked a natural demand both for retribution and for measures to keep us safe. Granting mercy is conceived as a compromise with justice  and as equivalent to arbitrariness.

Capital punishment deprives the wrongfully convicted of their possibility to prove their innocence. The dilemma is If the criminal justice system fails to fully appreciate the circumstances of the accused should the  apex court and the executive (Governor and president )be blind and turn a deaf ear. When an erroneous conviction is discovered and the mistake is proven beyond doubt execution should be stopped.

The fulcrum of the SC verdict is that undue, inordinate and unreasonable delay in the execution of a death sentence amounts to torture. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death.

Our justice  system encourages convicts who wishes to avoid execution to do so by prolonging the process. As long as the review process is pending the state's penal purposes are frustrated. In such circumstances, the review process  should  be as short as possible. What makes  execution of death sentence a problem for criminal justice is that any pending legal proceedings delays the imposition of the punishment. Even though the convict  remains in custody, the punishment provided for  the crime is not imposed as long as any part of the review of the case is not complete. So the “principle of finality "has to be  rooted. If a decision were not treated as final, many inconveniences would result: the dispute would continue to drag on; greater legal expense and delay would result and ultimately inconsistent decisions might follow. I hope our  apex Court, how-ever, will soon have the opportunity to lift the veil of con-fusion,

For too long, the victims of crime have been blanked out from our criminal justice system. The outcome of a case will greatly influence the victims family members and  their emotional well being. Perpetrators should be dealt with condign punishment .Only by putting murderers to death, society can ensure that convicted killers do not kill again. Rarely do we give victims the help they need or the attention they deserve.Obviously  the protection of victim is the primary purpose of our penal laws and  victim family's rights are to be balanced Thus, each new victim of crime personally represents an instance in which our system has failed to prevent crime. Lack of concern for victims compounds that failure, some of the high profile suspicious death have vanished from the headlines.

Courts can be somewhat protective  to victims by ensuring that they receive what is essentially “due process”—timely adjudication of the suspect and the opportunity to participate in proceedings confront the issue, deeming a just punishment” and by  making the victim to realize that  they  are not a mere spectator in the criminal justice process. Sentence against an evil deed if not executed speedily the hearts of heirs will  thrust them to do evil.

Delay between the convict being sentenced to death and being put to death is in theory designed for the condemned to appeal their sentence and to file a spate of review petitions.. The condemned are subject to years of confinement on ‘death row’ – isolated in a high security prison, meditating on their impending fate. This  dehumanizing experience of solitary confinement prior to execution has been defined by criminologists and condemned as a ‘living death’ .Indian Jails are no more as Guantanamo Bay and Abu Ghraib detention centers .Judicial intervention over the past decade  has had an enormously positive impact on the operation and environmental condition of prison .I do believe it is safe to say that reform efforts by the courts and government have altered in very substantial ways ,the psychological and physical status quo  of prison conditions are meliorated  and are far better  than Lord Macaulay’s prison system .prisoners are not without fundamental rights and they recognize and demand their entitlement to humane treatment and decent surroundings .They are no longer any-one's slaves. I strongly  posit  that continued reform  made the prisons  lawful, safe haven,  industrious, and aspiring. Many convicts have obtained masters and professional degree. Above all prison officials are held accountable for meeting the needs of prisoners and rehabilitating them. Prisoners scaling the walls or tunneling to freedom is no longer a news. Let me play the devil’s Advocate Have we realized  what life aboard a submarine is all about, The book written by  Danny Danziger portrays the life of the submariners and recounts the sublime moments of self sacrifice for the nation.- Living conditions on board a submarine is  extreme , The crews are trapped in a confined space for a six-month stretch. worst still, they live with the daily threat of attack, or blast . It is a metallic rabbit warren down inside, one has to crouch as they walk through the curved hatches, men have to spend long claustrophobic hours underwater breathing stale air, take a bath only once in about four days. They are  exposed to radiation, the only luxury being carom , chess or watching DVD movies, they have no contact with the outside world.. They sleep  in cramped three-tier bunks, and at times in ‘hot bunk’ on turn basis for watch duty where they should keep a watchful eye even in the blistering hot temperature. Nothing could be more abominable than to live in such temperamental atmosphere. If  Article 21 guarantee the right to life to include treating all individuals with dignity why  the state failed  to ensure minimal protection and dignity to our martyrs of INS Sindhurakshak and sindhuratna. Implied in this is the doctrine that sacrifice takes primacy over safety. Are we not attributing a different value to the right to life .On the contrary  convicts do enjoy life better than citizens on the outdoors. He has abundance of light, air, and warmth; he has good and whole-some food; he has seasonable and comfortable clothing; he has the best of medical care he has books to read, and ink and paper to communicate with his friends and relatives. There is no gain saying the fact that newly gained freedom is sybaritic life in prison.

Courts and state has a moral obligation to protect the safety and welfare of its citizens. Law has empowered the state a certain amount of authority to make life and death decisions. When a police officer is provided a weapon so that at time of exigency the weapon could be used to take the life of another person. If adversaries of  death penalty wish to remain consistent, then our armed forces should be disarmed.

The outcome of homicide cases greatly influence the victims family members and  their emotional well being. The epitome of law should be affrighting.  Only by putting manslayers to death, society can ensure that convicted killers do not kill again. Our constitution on equality ensures that everyone is treated equally. Aiming only on  barbate for execution allowing the clean shaven to escape the noose  is unjust. Death penalty should not be an abuse of  racial, economic and geographical biases.

It is unjust when a perpetrator deliberately and wrongly inflicts greater losses on others than he or she has to bear. If punishment  imposed  on criminals are less than those the criminals imposed on the innocent victims, law favors criminals, allowing them to get away with bearing fewer costs than their victims had to bear. Disproportionate sentence is unfair and will breed resentment and brutality. Where the law is reasonably seen as unjust respect for the rule of law is destroyed then honest citizens will become crooks and dacoits. My opinion is inflicting death on those{save those offences that come under the definition of self defense, negligence, sudden provocation}who  inflict death on others, ensures justice for victims.

The story of David and goliath in the bible is to be remembered as a metaphor. We should apply this story to the problem of crime and its consequences. Goliath stands for enormity of the crime and its resulting injuries within a society. David for individual victim  and community affected by the crime. Saul (the king of Israel)  for the Governmental gate keepers responsible for determining how to respond to crime. The phrase restorative justice lies in the inclusion of victims, community members affected by crime.

I make no bones about the commuting of death sentence.The story of Ashwathama needs to be cited .Ashwathama son of Dronacharya used his bramastra missile and directed it towards uttara to kill her unborn child. Lord Krishna countered the attack and saved the unborn child and anathematized Ashwatama that he would live forever with sores and ulcers. No punishment could be harsher and grisly than the one that was meted out to Aswasthama. A death sentence may on occasion provide relief for a public conscience wounded by inexplicable brutality. The right sentence would be what  Krishna gave to Ashwathama cursed to immortality and extreme suffering but divine laws conflict with human laws and therefore incompatible.

Let me go for the axe. Too light a punishment is perceived as a lack of respect for the feelings and rights of the victim. Too severe a punishment create a feeling that the justice system is committing a worse crime, reversing the offender as a victim. The rarest of rare case is a beautiful axiom but should not be stretched to include sinister definitions. Mercy for the guilty should not take precedence over the rights of victims. Commutation and remission of sentence should not be a natural and logical extension of law it should be the discretion of rational guild by balancing competing interest which should be outside the realms of politics and should be dealt fairly with reasonable consistency. It should strike a good balance between individual and societal interests. If a offenders family members are allowed to be heard, then so should family members of the deceased victim. The state should reckon public opinion on remission and commutation of sentence which is one way to dissipate the secrecy. Protecting the victim’s dignity would guard our collective interest in preserving humanity. My last question to those who advocate the abolition of death penalty. If your loved one has been brutally  murdered do you think it is possible to mend from gloominess? What good word would you give to others in your situation? Your conscience should be the ultimate weapon to fight against death penalty.

K.SURESH BABU

ADVOCATE,

9,RAJA COLONY,SECOND MAIN ROAD,

COLLECTORS OFFICE ROAD,

TRICHY