This
was the question posed by a two member Bench of the Supreme Court of India to
the judges of a trial court and a sessions court that pronounced and sustained
the sentence death to two convicts in a murder case. So, it is not a knee-jerk
liberal who is posing this question. This came as relief to me as I read Supreme Court pulls up trial judge for queer
death sentence, in The Hindu of
December 22, 2012.
It
is rather surprising that the Supreme Court had to caution (why not go beyond
mere cautioning?) “[T]rail courts not to be influenced by the views expressed
by judges or academicians on a private platform.” Read the list of things
criminal courts should not be influenced by: “opinions, predilection, fondness,
inclination, proclivity.” Does the reader understand that every single one of
them imbues the process of judgment with singular lack of objectivity? It is in
this environment suffused with arbitrariness some of our enlightened public cry
out for death penalty for this and that crime.
The
“trial court had opined” that imposing the death penalty will “help eliminate (my emphasis) the crime.” I
want to cite this when I nominate the judge involved for the Nobel Peace prize!
One of the apparent justifications for the death penalty cited in the trial
court judgment is that the criminals came from Rajasthan, a good 2,000 km away –
they came to “our state”, for committing robbery and murder! Obviously, along
the way they did not find anyone to rob or murder! Hence, they deserved death
penalty. Had they done the deeds in, say, Madhya Pradesh, they would have
gotten away with a slap on the wrist.
You
want more arbitrariness? The judgment by the trail court is purely judge-centric
and not crime-centric. That is, you live or die on the lottery of the choice of
the judge who hears your case. It also takes recourse to the barbaric
jurisprudence of the Arab countries – “’slashing’, beheading, taking organ for
organ” etc. Why no reference to, say, Norway’s liberal jurisprudence?
Arbitrariness.
One
last observation: one of the convicts died waiting for the High Court to
disposes of an appeal. The other, after a tortuous judicial journey, was let go
by the Supreme Court – from death to liberty. In the words of the Supreme Court
Bench, “[W]e set him at liberty forthwith.”
It
was Benjamin Franklin who said, “The only things certain in life are death
and taxes.” Now, given our judges
misunderstanding of death sentence, the aphorism may have to be changed to “death
and ‘Liberty’”.
I
would like the death penalty proponents amongst my friends to tell me whether
they will accept this modified saying
Raghuram
Ekambaram
