An element of subjectivity even in the dispensation of justice may be unavoidable for, after all, judges are human too. However, even after making due allowance for the human element subconsciously influencing outcomes in court cases, the justice system needs to be boiler-plated against even an iota of discretion creeping into matters of life and death. Most probably it is this subjective element in the award of death penalties by the courts that led the Supreme Court to set up a five-judge Constitution Bench to prescribe comprehensive and authoritative guidelines for courts before awarding capital punishment. That the three-member bench headed by Chief Justice UU Lalit did not even remotely touch upon the controversial issue of persisting with capital punishment in the 21st century — when most advanced societies have abolished it from their penal systems — underlines our current socio-economic status.
That said, the award of the death sentence even in the most heinous cases ought to be the exception rather than the norm. Indian courts have shown great sensitivity at the middle and higher levels of judiciary, invariably leaning towards commuting death sentence to life imprisonment. But as the apex court noted on Monday, certain steps need to be prescribed to ensure that all aspects relevant to the mitigation of the offence in question need to be necessarily taken on board before the award of capital punishment. It was pointed out that lower courts often award the death sentence on the same day as convicting an accused, thus not allowing him to present mitigating circumstances for his crime. The bench noted that clarity was required on the minimum time required between conviction and the award of death sentence, and the procedure duly spelled out for consideration of all mitigating circumstances against the death sentence.
Another point for the proposed five-member Constitution Bench to consider in such cases involving capital punishment is for the trial courts to insist on getting all relevant information from jail authorities, mental health experts, psychologists, etc, before awarding the death sentence. At the trial stage such mitigating circumstances rarely get a mention. It is only at the appeals stage after the conviction that the trial court has an opportunity to weigh all such circumstances before determining the quantum of punishment. The prosecution in any case is interested in securing the death sentence for the accused, adding these orders as feathers in their prosecutorial hat.
Another relevant aspect germane to the issue is the unconscionably long time gap between the award of death sentence and the disposal of the appeal against it. Convicts have been known to rot in jails on death row for years before the courts pronounce the final word in their cases. Whether a mechanism can be devised to grant death row cases priority even in the terribly clogged judicial system also needs to be considered.
At present all manner of cases, serious and unserious, are brought before the apex court under the general rubric of public-interest litigation (PIL). This novel judicial device, which first broadened the citizens’ rights and focused on some of the most egregious conduct of the executive, for instance, the case concerning the Bhagalpur blindings in the 1980s, has now been abused by vested interests to settle personal scores or further corporate interests. Besides, the courts too have fallen for empire-building, hearing cases which by no stretch of the imagination require judicial intervention — for instance, deciding on the height of a hydro-power dam. The courts lack domain expertise in a whole lot of issues which they routinely agree to consider as PIL. This should be discouraged. In short, detailed guidelines on what can and cannot be heard as PIL too are required to be spelt out.
