1. 12/17/13
The Pioneer
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DECIDING CAPITAL PUNISHMENT NOW JUDGE’S DILEMMA
Monday, 1 6 December 201 3 | ARBAAZ HUSSAIN & SURBHI SHARMa | CUTTACK
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T he CBI Court judgement on the Aarushi-Hemraj murder case has once again raised the
debate of imposition of capital punishment in India. T he Supreme Court had previously
decided that capital punishment could only be given in the rarest of rare cases where the
collective conscience of the society is so shocked that death penalty deems to be the only
alternative.
It had further ruled that such a case had to pose as a menace and threat to the harmonious and peaceful
existence of the society. In this background, the CBI Judge Shyam Lal decided that the accused in the
Aarushi-Hemraj murder case were not a menace to the society and therefore death penalty could not be
imposed on them.
This decision however again brings into light the pertinent question of what qualifies as “a rarest of rare”
case. The 2008 landmark judgement of the Supreme Court in Swamy Shradhananda vs State of Karnataka
declared that capital punishment can only be imposed in circumstances where murder is committed in an
extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme
indignation of the community.
This was later to be supported by the 2012 judgement of State of UP vs Sanjay Kumar, wherein the court
clarified that that the nature and gravity of the crime and not the criminal are what are relevant for
consideration of appropriate punishment in a criminal trial. Even post such clear statements, some
ambiguity still persists regarding such cases by virtue of the subjectivity of every individual Judge.
The 2013 decision of Bhaikon alias Bakul Borah vs State of Assam, wherein the heinous crimes of
committing rape and murder were not considered fit for capital punishment, gives an evidentiary value to
the above statement.
To rid the nation of this dilemma, a bench comprising judges H L Dattu, SJ Mukhopadhaya and MY Eqbal,
while deciding a case, had cautioned courts that death penalty is the exception and has to be awarded with
utmost responsibility.
They went on to say that due regard should be given to the nature of offence so that the punishment given
is not disproportionately severe and manifestly inadequate.
Determining the nature of offence would lead the court to consider the facts and circumstances of each
case, which again directs towards the discretionary power of the Judge. This being a grey area of criminal
jurisprudence, the only legitimate answer that could be given is by amending Section 302 of Indian Penal
Code in a manner where a proper demarcation is done between the offences demanding life imprisonment
and those forming a part of the rarest of rare category. This process requires a very sustained and
comprehensive effort on part of the Legislature.
Frederick Schauer, a famous jurist, once said that when the law fails to give an answer, the Judge’s role of
interpretation comes into picture. But we ask today as to what could be the possible solution when the
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2. 12/17/13
The Pioneer
Judge’s themselves are in a state of dilemma.
This is where the Legislature needs to take the first step and aid the Judiciary by way of an amendment in
the law. Considering the society we live in today, it is high time such a step was taken so as to remove the
doubt that engulfs capital punishment.
(The writers are members of the Legislative Research and Policy Club, National Law University Odisha,
Cuttack)
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