JUDICIARY- A MURDERER! Suvidutt M. S.

(This article was originally published in a law magazine THE BONA FIDE brought out by Govt: Law College, Thrissur) LEGAL KNIFING OF LIFE There is cache in every human being, a cataloging of cosmic coruscation in one and all which makes us believe that there is more to life than living, judging and justicing. Life is so prized and precious that no one has the right to take out ones life, be it a judge, jury or a janitor. Death penalty is the ultimate fiendish, savage and shameful sentence given to humans deemed as criminals by the state. This draconian death punishment violates ones right to life and is irrevocable making even more terrific and tragic if it inflicts on the immaculate and innocent. History starry-eyed mirror the march of civilization from terrorism to humanism and the topography of death penalty delineate retreat from country after country. But our homeland which proffered Gautham Buddha who preached universal compassion to the world; Gandhi, the marvel of all times who fought for ahimsa and in a country where political parties and persons alike advocate that not even a termite should be subject to torture, death penalty has not been terminated. We conceit ourselves claiming that we were the first people in the planet to lead a civilized life but we have not given up the barbaric practice of hanging convicted murders, until they are dead. A murder is a murder by whatever name you call it. We are still living like brutish barbarians and have not developed humanitarian character. From this it is obvious that our pretensions of justice are just a colossal hypocrisy and our shibboleth of sympathy is just a phony and facade compelling me to write that we Indians are a throng of cheap boasters. The cult of abolitionist nations of death penalty is amplifying. The Amnesty International opposes the death penalty as a violation of human rights, holding that it

violates the right to life and is the ultimate cruel, callous and corrupting punishment. U.N. Commission of Human Rights expressed its conviction in way back in 1997 that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights. There are international abolitionist treaties which include the European Convention on Human Rights adopted by the council of Europe in 1982; the second Optional Protocol to the International Covenant on Civil and Political Rights adopted by the U.N. General Assembly in 1989; and the Protocol to the American Convention on Human Rights to Abolish Death Penalty, adopted by General Assembly of the Organization of the American States in 1990 which all aim at the abolition of the death penalty. The European Union which has abolished the death penalty has urged India to refrain from carrying out more executions. The strongest reason for the abolition of the death penalty is the fault of arbitrariness in sentencing judges. The decisions are discriminatory, subjective and arbitrary at all times. Our apex court has stated that it ought to be imposed in the rarest of rare cases which is a euphemism for judicial gamble. It postulates resistance to taking a life but persons like Nathuram Godse, Dhananjoy Chaterjee and Dara Singh will still hang in the hangmans rope in future due to the sanction and sentence through the laws instrumentality. How can law through its instrumentality take a persons life? Law by itself is no answer to justice as the sublime instances of Socrates, Jesus and martyrs galore in the long history prove how justice failed and blind law triumphed. The cultural pedigree of India, with Valmiki, the finest bard with a burglar pastand such examples of renovation from criminality to nobility are legion here and elsewhere. No one is a born criminal, the offender being often the victim of irrepressible stresses. The doer may be a jingoist, a revolutionary, a scrawny victim of a strong passion who, given enhanced milieu, may be a good denizen, a good administrator, a good spouse or even a great saint. He could be a transcendent spiritual star like shri Aurobindo, tried once for murder but by historys kismet exonerated. The personal saga of an actor in a shocking murder, if considered, may bring laceration. He might have been tormented youngster, a battered orphan, a jobless starveling, a badgered brother, a wounded son, a catastrophic person hardened by community cruelty or rancorous justice, even a Hamlet

or Parasurama. He might have been an angelic lad but thrown into Mafia Company or inducted into dopes and drugs by parental neglect or morally-mentally retarded or disordered. We must always have the brooding thought that there is a divinity in every man and that all can redeem from their sins if given chance catalyzed by the Jesus, Gautham and Gandhi compassionate philosophy. Every saint has a past and every sinner a future strikes a note of reformative potential even in the most ghastly crime. This axiom is a vote against death and hope in life. In succinct, knifing the life legally is knifing the life immorally. WHY NAY TO DEATH PENALTY Everything has reasons; the crying cadence of no to the evil eyed death penalty has too considerable and credible reasons. The succeeding paragraphs testify why there must be a shouting protest against capital punishment and why we need to death sentence on death sentence. The purpose of punishment is to douse criminal penchant, not the person who commits the crime. The jurisprudence and philosophy of penology says that soul of sentencing strategy in any civilized criminal justice system is to recuperate the soul of the sentencee and make him a useful member of society by the traditional trinity of theories namely retributive, deterrent and rehabilitative and sometimes a blended brew of all the three. If the capital punishment is abolished, they argue, people will not be safe and the graph of the murder will soar high but this is not a sound argument. At one time the pick pockets were also hanged in England and when the death sentence for pick pocketing was sought to be abolished same argument was advanced that no pocket will be safe. It is also pointed out that when a pickpocket was being hanged and the people had gathered to witnesses his execution, some pockets were being picked. Myriad men and women have been executed for the purpose of preventing crime, especially the crime of murder. Yet, study after study in diverse countries by sociologist and criminologist has failed to find convincing scientific evidence that the death penalty has any unique capacity to deter others from committing particular crimes.

J Bhagwati said :- " I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and 21 of the constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence". Behind and beyond the callousness of the degrading death punishment, its the overt and covert cruelty of torture which is more sad and somber. Like torture, an execution is an extreme physical and mental assault on a person already rendered helpless by government authorities. The cruelty of the death penalty is manifest not only in the execution but in the time spent under sentence of death, during which the prisoner is constantly contemplating his or her own death at the hands of the state. This cruelty cannot be vindicated, no matter how cruel the crime of which the prisoner has been convicted. If it is impermissible to cause grievous physical and mental harm to a prisoner by subjecting him or her to electric shocks and mock executions, how can it be permissible for public officials to attack not only the body or the mind, but the prisoner's very life? The cruelty of the death penalty extends beyond the prisoner to the prisoner's family, to the prison guards and to the officials who have to carry out an execution. Information from various parts of the world shows that the role of an executioner can be deeply disturbing, even traumatic. Judges, prosecutors and other officials may also experience difficult moral dilemmas if the roles they are required to play in administering the death penalty conflict with their own ethical views. This is what the authors of the Indian Penal Code had to say about death as a punishment: We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the state has been committed. Cr.P.C. states that death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of Sec 354(3) of Cr.P.C. it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singhs Case and observed- A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is

unquestionably foreclosed. To decide whether a case falls under the category of rarest of rare case or not was completely left upon the courts discretion. However the manner of exercising the discretion has undergone various changes with the changing time and evolution of new principles through various cases. In the case of Mohemed Chaman, on the question of extent of judicial discretion, the court observed: Such standardization is well nigh impossible. Firstly degree of culpability cannot be measured in any case. Secondly criminal cases cannot be categorized, there being infinite, unpredictable and unforeseeable variations. Thirdly in such categorization, the sentencing procedure will cease to be judicial. And fourthly, such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions. Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be said that such wide discretion has resulted into enormously varying judgments, which does not portray a good picture of the justice delivery system. Historically speaking, capital sentence perhaps has a class bias and colour bar, even as criminal law barks at both but bites the proletariat to defend the proprietariat, a reason which, incidentally, explains why corporate criminals including top executives who, by subtle processes, account for slow or sudden killing of large numbers by adulteration, smuggling, cornering, pollution and other invisible operations, are not on the wanted list and their offending operations which directly derive profit from mafia and white-collar crimes are not visited with death penalty, while relatively lesser delinquencies have, in statutory and forensic rhetoric, deserved the extreme penalty. In todays India, penal law is just in the paper parchment with sunlit semantic and experience shows that death sentence is given to the accused from societys deprived and destitute segment. It seems the death sentence is the privilege of the poor. One does not come across any case of the death penalty being inflicted on those who are better off and who can afford to engage skilled lawyers. Often the accused is defended by a novice who holds a legal aid brief. What Justice Douglas said in the US has application with even greater force in India. He said, It is the poor, the sick, the ignorant, the powerless and hated who are executed.

Besides the inherent arbitrariness of the death penalty, Indian conditions for investigation of crimes and trial court procedures in homicide cases do not inspire confidence. Methods of investigation remain crude, archaic and unscientific. Conviction is largely based on oral evidence of witnesses. Witnesses are often motivated by caste, communal and factional factors. It is not uncommon for the police to fabricate a case for caste or communal reasons or for the enemies of the accused to fabricate a case against him. Prosecutors are not trained to shun irrelevant considerations. Such factors may create an apparent cast-iron prosecution case but the reality may be different an innocent man may have been victim of a flawed or false prosecution. Also, any judgment of the court, howsoever well arrived at, cannot be totally infallible. Judges are human beings and can go astray. Some times death penalty is pronounced by a thin majority of one, other judges dissenting. Thus a human life can be snuffed out even erroneously. In the matter of capital sentence, the gravest factor is that the error is irreversible, since the sentencee is dispatched to that undiscovered country from whose bourne no traveler returns. SENTENCING WITH JUDICIAL WISDOM The penal system and the sentencing process must become versatile gadget of reform of the individual and social defence. For this judicial training is imperative. Judicial conferences and sentencing workshops and institutional training for trail judges are directly necessary. Law schools giving special law courses in sentencing and correctional processes, exposure of judges to advanced psychological and neurological and other medical theories and practices relevant to justicing, and creation of Sentencing Boards with medical and other components are some of experiments which hold out promise for the future. Judges must have sentencing options if they are to be functionally successful. Courts must have the power to order compensation and damages in appropriate cases, direct psychiatric or other treatment and investigation where necessary prescribing probation or conditional suspension of imprisonment coupled with the duty to report at

meditation centers, healing clinics, training schools or community service stations( for alcoholic and drug addicts and drivers with substandard skills, for instances). In the case of juvenile offenders, special assistance from medical personnel becomes valuable. Borstal Schools, Attendance Centers, domiciliary visits, non-institutional treatment and the like hold out remedial prospects. Rescue Homes for women and other classified treatment possibilities, depending on their background and social environs, need bolder experiments so that the findings may be of benefits to the judiciary. Judges may insist, in their sentence directions, on prison education and special training of the prisoner as a member of the community. This latter is vital to any process of rehabilitation. Indeed, psychiatric treatment of prisoners may be individual therapy or group therapy, even sending them to special institutions, or back to the family with work obligations. Correction without conviction, probation and parole, obliteration of conviction upon release from prison are on the cards. The old theology in regard to penalties is wholly out-moded. To put all the sentencing eggs in the imprisonment basket is stupidity boundless. The very compulsion of advanced knowledge and higher awareness of correctional potential makes for the need of Law and Medicine to work together, blend their skills and make the art and science of sentencing a social defence project. Judicare and Medicare must go together. Judicare without Medicare is inadequate. Judicure without Medicure leaves the wound half-healed and therefore the Judicure and Medicure must work in symbiosis. Crime is a disease and most criminals are a kind of psychic patients. Criminals are curable humans and are not irredeemably brutish. A king cobra which, by chronic habit, knows only to sting to death could be defanged and then what is the need of killing the cobra? Destruction of individuals can never be a virtuous act therefore the evil-doers cannot be done to death or decided to be a candidate of hangmans rope rather there must be attempts to convert lock-up behind stone walls and iron bars into hospitals for healing the criminality. Medical humanism and clinical pragmatism, not traditional legal torture as magic healer, plus the non-negotiable character of the archetypal constitutional guarantees of human rights of sentencees is the New Testament of Penology essential to be written, redefined and reconsidered. 7

END WORD A better world is one without legal knifing to life, given promising social changes. All the same, to sublimate savagery in personality or society is an elongated experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a job. Judicial activism can only be a signpost, a weathervane, no more. The penal direction in this jurisprudential journey points to life in prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangmans rope. The direction must be correct, and then only the odyssey in the quest of nebulous truth in the abolition of lex talionis could be a success. The right to life must win and for that the most momentous task to play is for the judiciary with judges and justices sitting on the top of ivory tower pronouncing judgment and delivering justice in injustice way. Remember that we call killing intentionally as a murder and if so a judge pronouncing a verdict of death sentence could be called a murderer. It is corroborated to say that as long as the seeming pure and paramount as it is judiciary gives capital punishment, it is a blood thirsty murderer which offers humans as oblation to propitiate the Goddess of justice. There needs neither a lurid brush to draw in the backdrop nor acidic ink in the pen to write about the hanging of a human being still in every somber dawn by the legal process. One does not be a painter or a poet to get the picture of dying reality in an artistic or a poetic way. Truth speaks it by itself. Death too speaks for itself. But there must be someone to speak about the death and the victim of the legal death. Be a lawman or a layman, be an Indian or a person just visiting India, the flag of humane justice shall be hung half-mast by anyone, such is the symbolic reverence the land of Gandhi should pay to human life haltered up by the lethal law.