CHENNAI: So, legally speaking, what lies between life and death? A lot of grey area, really. Indian criminal jurisprudence does not prescribe death as punishment for a particular offence, however heinous the crime may be. For instance, the maximum punishment provided for in our statute book is not death. Instead, it is "death sentence or life imprisonment."
After holding a person guilty of having committed a heinous offence, a judge has neither legislative policy nor legal principles nor judicial precedents for guidance to impose an appropriate punishment. While highlighting this lacuna, legendary jurist Justice P N Bhagwati says whether it would be a mere life imprisonment or death sentence is decided by the judge's "unguided discretion". In other words, what qualifies as "rarest of rare cases" warranting capital punishment is to be decided on a case to case basis by the judges concerned.
The enormity of this observation would hit us if we apply it on the Rajiv Gandhi assassination case.
For some reasons, the special TADA court here found all the 26 persons guilty of committing a rarest of rare offence and imposed death sentence on all in 1996. The appeals directly went to the Supreme Court. In 1998, the Supreme Court confirmed death only for four and the remaining convicts simply walked free. In 2000 the death sentence of one of these four, Nalini Sriharan, was commuted to life after a state cabinet recommendation.
From being a part of the 26-strong death convict group, now only three are staring down the barrel.
The Amnesty International, while advocating the total abolition of death sentence throughout the world, cites three reasons to do away with the punishment. Firstly, adopting a religious attitude, it says life is a gift of God/nature, and none except God/nature has any right to take it away.
Secondly, citing economic disparity, it says a litigant's inability to afford a good lawyer has direct nexus to the quantum of punishment. The Amnesty cites the fact that about 90 per cent of convicts in various prisons in the world are underprivileged who could not pay hefty fee to a good lawyer. Thirdly, the fallibility of human judgment is a reason enough not to kill a person even by lawful procedure.
There are, however, judicial officers who feel they have been truly judicious and balanced in choosing cases to award death sentence. "In my 28 year service, nine years of which as sessions judge having power to impose capital punishment, I have not exercised the option even once. Not that I am against death punishment. I have not yet come across that 'rarest of rare case'. We are responsible people. I will not hesitate to award death penalty if acase deserves," a sessions judge told The Times of India.
He says the death penalty should remain in the statute book, to be invoked in deserving cases. "Even if it is not used even once, it will instill a sense of fear in habitual offenders and act as deterrence," he says. Incidentally, the Vellore central prison, where the three condemned prisoners involved in the Rajiv Gandhi assassination case are lodged, has a total of six death row convicts and 290 life convicts. A tell-tale evidence that extreme judicial restraint is being exercised before noose is put around a person's neck.
Times of India
TNN | Aug 31, 2011, 08.10AM IST
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