namaskar and welcome to sunset television i'm vishal tahia and you're watching our show

perspective where we bring you detailed analysis of key national and international issues today
we're going to talk about the death penalty debate the supreme court has ruled that all courts must
consider pre and post-crime conduct of a convict to ascertain mitigating uh grounds to avoid
imposition of the capital punishment now the apex codes a friday verdict puts onus on the judiciary
to look for a convict's reformative qualities this further limits the possibility of imposition of death
penalty which in 1980s got restricted to only rarest of rare cases the law commission of india in 2015
had also recommended that the death penalty be abolished for all crimes other than terrorism-
related offences and waging war against the country over the past several years concerns have been
raised that the death penalty has been awarded mainly considering only the crime factor while
overlooking the accused in today's episode of perspective we will analyze and understand all aspects
of this issue and for more on this we joined by distinguished panel of experts let me first introduce
them to you beginning with we have with us in the studio senior advocate sanjay chadha who is
joining us welcome mr chada thank you now we're also joined by mr suresh chandra former law
secretary with the government of india and uh mr ashok bagariya the legal editor of tv9 is also with
us welcome both of you gentlemen as well let me just begin with you uh advocacy let's start by
understanding the context of the supreme court's latest ruling on this issue as well let's try and
understand what supreme court has said and why it has said so well uh the most important thing as
you said in 80s we had got the the the gist of those judgments was that in only in rarest of the rare
cases rarest of the rare circumstances when such an heinous crime is happened then only we should
you know look for a penalty like death penalty so it's remote it's very rare that it will be given now i
would say another caveat is added with this judgment which you just mentioned wherein uh the
supreme court has very specifically said that the during the trial because you know as well we all are
aware that trial takes a quite lengthy time and not only that after that you go for an appeal if there is
a case where death penalty is there so on an average it takes seven to ten years time why i'm saying
seven to eight ten years you know i can give an example of nirvs which took seven years despite
being lensed by all media houses and everybody every day it was covered in almost all the
newspapers so here what important thing which you know the take away as i can say from the
supreme court is that the conduct during those seven eight years which uh the person who is going
to be convicted has shown what kind of activities he has done should also be taken into
consideration that's what is the just and a very important factor i think this further restricts the the
awarding of death penalty but we we have to always keep in mind that death penalty as as per the
rule would be given to only and only in in the cases where it is rarest of the rare case in extreme
circumstances death penalty should be aborted okay let me let me bring in ashok ashoka you know
the the supreme court has been uh working on it for years uh in terms of you know forming the
guidelines for the mitigating circumstances as we have seen now if you have to look at this journey
from 1980s onwards when this this entire uh scenario visit with the death penalty was restricted to
rarest of rare cases to 2022 now if you could take us through uh you know what all has transpired in
terms of the the high points of of this journey on the issue of death penalty and where do we stand
now well in the last four decades or so as far as application of death penalty is concerned it's been
very erratic in the sense the trial courts have been very erratic and rewarding death penalties to
convicts because what we have seen is that most of the cases in which death penalties are awarded
by the trial courts are either set aside not confirmed by the high courts or when they come to the
supreme court uh in the final if they are set aside and the defendant is reduced to either a lifetime
for 20 years or 10 years so what has really happened in the last few years is that there has been a
concern which has been expressed in the legal circles that the trial folks have been very very
liberated in awarding definitely and actually giving push to the idea of retributive justice so what the
supreme court has over the years felt is that although we have uh a base uh which has been laid
down in the purchasing case that death penalty should be uh given in very exceptional
circumstances life sentence is a rule and death penalty is an exception they also laid down the rest of
the rare tests and what has really happened is that the misapplication of the rarest and the rare days
test so in the bachelor case what the fourth supreme court said was that when you are when you
when any particular thought is uh handing out the death penalty sentence it has to balance the
mitigating and aggravating circumstances and once they are balanced out you have to see which of
the scale is heavier and on that basis you have to avoid the technique but often what's happening is
that we have seen that uh there have been many instances that the trial boards have heard
arguments on sentencing and within hours of the conclusion of the arguments uh they pronounce
their verdict and there is no proper way of the aggravating and litigating circumstances so what has
really happened in the last 40 years is the misapplication or the abuse of the supreme court
guidelines which have been laid down in case now what the supreme court wants is to set the record
straight and say that look this all of this has to stop and what is really important vishal i want to say
is that on as on 31st december 2021 there have been there are around 488 people who are on the
test in the year 2021 itself there were 144 instances in which death penalty was given out by the trial
person so what we are witnessing uh this has become more of a threat that the trial courts have uh
actually hurried through or rather not properly applied the law which is place and this is resulting in
the number of potros in our presence piling up the number of uh uh convicts who are on deco is
fighting companies okay okay uh mr chandra you know let's also understand this from the the
perspective of executive and the legislative as well because making the law is in the domain of the
parliament and the law is already there it exists it's about the interpretations and of course the way
judiciary is now putting in place mitigating circumstances as well and that four decade long journey
which uh ashok just described about and and you know several checks and balances being put in
place how how has the government and the executive looked at it all through these years and where
does it stand now see this debate whether the uh capital punishment should be there or it should be
abolished has been uh for a very long time and the supreme court after a number of cases uh as our
plague have already uh mentioned right from bad chances and all those cases wherein the death
penalty has been awarded the supreme court had very categorically and clearly uh brought out the
principle of rarest of the real cases and this is the latest judgment to my mind is also to arrive at the
rear of the rarest category but on the government and also the international pressure was always
there that it should be abolished whenever we used to go for any you know bilateral agreement or
multilateral agreement on the international platform then there used to be you know pressure or
there used to be they were not agreeing uh some of our provisions because we had the provision for
capital punishment but why capital punishment we have to go into this aspect because there are
three theories uh one is the preventive retributive theory and the reformative uh retributate
nowadays have come down they are not just uh to punish somebody because he has done this more
trust is nowadays is on the preventive as well as these are the theories which are more acceptable
that is the reformative and of course uh there are certain circumstances as in the uh judgment i was
i i could not go through completely but i was going through uh the uu lalith uh justice view lalit who
has been you know expert on the criminal justice he had been very uh beautifully uh by while
balancing had brought out those mitigating factors and the guidelines for the judiciary and as well as
what should be the relevant material relevant information which should be taken into consideration
okay so i think this is a this is something you know thesis anti-thesis and synthesis so long as the law
is there so long as the law is not struck down or law i mean is not a mandate i will say whatever you
say either the uh rarest of the rare cases or the categories like terrorist elements or some certain
other persons who are wasting war against the government or maybe certain other um very serious
offenses against the uh humanity or the large number of persons like which which has been
mentioned okay so i am of the view that the government always goes by you know by uh by the uh
uh by the uh public opinion as well as the uh the uh requirement of the national and international uh
you know opinion okay and i have seen while you know we were we were undertaking this law
commissions report at that time also it was it was discussed and at various forums and finally it was
it was you know decided that we should we should not abolish it because the balancing is being
done by the by the supreme court okay or find the judiciary okay and and the government when
they are prosecuting and seeking capital punishment at that time they are they are trying to bring it
in the rarest of the real cases okay for the sake of independence of judiciary and uh for the sake of
uh this that the justice administration of justice will be done in a reasonable manner okay this is this
has been kept i don't know maybe in future time when we we become either more civilized or we
can succumb to the international pressure the parliament may uh decide that okay okay now now
that mitigating circumstances have been put in place that also brings in focus one more aspect here
and uh sanji i'd like to bring you in here is that this also uh if you look at supreme court's earlier you
know stand on on this particular issue it clearly said that the courts should respond to society's cry
for uh you know justice being delivered in heinous crimes with with commensurate punishment
exactly that is very very important what you know at the time when you are giving proper
importance to mitigating circumstances as stated by justice lalith who himself has suraj she has also
mentioned that is a was a dynamic lawyer of as far as the criminal law is concerned and now he's
delivering very wonderful judgments so this very correctly you have stated that yes that aspect is to
be taken into consideration but what about the victim's side what happened to those persons who
have suffered whether you know by the act of the this is what where you have to do weigh both the
things and then decide what is to be the next course of action what will happen to the pain agony
the the the disturbance which not only the victim the entire family the entire kunba of that
particular family will be facing when they see that this heinous crime has happened and which
properly falls in uh you know i'm talking i'm just saying uh basis on you just look into the effects of
the circumstances that is very very important okay and that's how the rarest of the rare cases first
you have to see that okay okay but but mitigating circumstances is is one aspect which we are
debating here something which you know the supreme court has clearly laid down the guidelines for
ashoka you know if we look at that aspect as uh sanjay ji is is referring to and and what i was
pointing out in terms of what supreme court had earlier said the question here is that the mitigating
circumstances also talk about pre and post uh you know uh conduct of of the of the convict after the
crime has been committed now one opposing view is that why consider the the post conduct uh you
know post uh the conduct post the commitment of crime well vishal uh i agree with what's being
said but you have to understand that the courts can't become bloodthirsty and start handing out
definitely in every case uh where ethernet is respected so what the supreme court has done very
objectively it's laid out a test it said the test is rarest the second thing they have said that life
sentence is the rule and that is an exception so keeping these two principles in mind you have to
wait things projectively now as far as mitigating why now the question arises is that what about the
rights of the victim now you see as far as the criminal jurisprudence is concerned globally it has
evolved the concept of criminal jurisprudence and punishment has evolved from the retributive uh
punishment to debtor and punishment to reformative punishments uh in fact yesterday it said in the
yasin money case what we saw was that the nia which was proving a terrifying case needed support
[Music] however the court rightly applied the principles which were laid down and uh matusing's
case and it balance the mitigating and aggravating circumstances but now most importantly what
you have to see is that why is mitigating circumstances more important and before i answer the
question why we need to look what are the mitigating circumstances so what is his family
background what was his uh early family background what is his educational status what are the
chances that he can be reformed so you see these are the mitigating circumstances now coming to
the question why mitigating circumstances need to be taken into account is that the courts the
whole uh students is shifted as i pointed out earlier from the point of retributive justice reformative
and veterans justice now the whole idea of keeping this in mind or keeping the person in jail is to
make sure that this person who's become a menace to the society does not come back into the
society and repeat uh the same offense for which he's been charged so what the courts are trying to
do is trying to see that we are not bloodthirsty we do not uh we do not respond to the idea of death
penalty to be given in every case for us for the courts as far as the courts are concerned life
sentences are ruled and death penalty is an exception and we apply that exception as long as the
case is made out if the crime is such uh offered such a diabolical nature that death penalty is made
out in fact what we have seen that in the 26 11 case the whole question of mitigating uh aggravating
circumstances were argued for uh also and at that point in time the supreme court violence
statement said that it will be right but what the supreme court is now saying that you have to be
more rational more subjective in your application of mine okay okay more rational more objective
there as well now let me bring in mr suresh right here again mr mrs chandra you know striking that
balance with the uh with the objective of being rational but also ensuring that a balance is struck
between uh ensuring that the mitigating circumstances are taken into consideration with the convict
and also taking into consideration the the heinous nature of the crime and the impact on the victim
victims family and the society at large mr frankly speaking if you see this judgment it will have a
persuasive forces over the judges but practically if you see the lower judiciary invariably uh they are
giving a maximum punishment maximum punishment is later on being uh you know either
decreased or upheld by the high court and ultimately in all the cases the capital punishment cases it
comes to the supreme court and in all these cases uh when we say balancing and mitigating and all
you will see you will see the principles of natural principles of reasonableness apply and what are the
principles of reasonableness are they all uh all those uh circumstances all those material if placed
upon before a person of ordinary prudence the same decision will be taken by but we have seen all
these having you know principles being there we have seen most of the time the judges judges
orientation background and sometimes that affects so i am of the view the balancing was there
earlier also balancing is will remain in future also but the fact is the responsibility of the judges is
there to implement the institute in true spirit and with that interpretation which has been given by
the supreme court and i am of the i am again of the view that the balancing will have to be done um
i mean the the past and the and the uh i mean public opinion also uh uh has an impact uh so i will
again say uh with concluding this is this is something like thesis antithesis and synthesis okay like
that the the you know the law also moves and uh the the principles of reasonableness also will will
improve indeed indeed okay okay let's let's take a concluding comment from uh sanji here sanjayji in
terms of you know understanding the context we have understood as to which with what context
the supreme court has finally come out with these guidelines but as ashok was pointing out that of
course you know we will have to also take into consideration the way the jurisprudence or the
principles of jurisprudence are moved from you know retributive to reformative as well and this also
is is more or less to keep in check the trial codes in a sense that you know they don't uh go on
handing out death penalties as a rule but as an exception very very correct now i would like to say
one one one thing here which is very important it just stuck to my mind that when you know in any
criminal case when whether it is a matter of bail in the at the inception you look into the
antecedents of the person you look into the family background as ashok ji has just said all those
things are very very relevant in almost all the criminal uh cases now what was happening up till date
up till date in the rarest of the rare cases which are very heinous crime has happened these points
were not looked into as suraj very rightly said that they that the lower court judges are you know
adopted they have adopted a kind of prototype and a kind of similar way they are just printing their
judgments that's what is one one one one thing which must have been there in the mind of the
court so court has very categorically said that these important point of criminal jurisprudence are
important here in these heinous uh offenses also where you are following we we are aware that you
are following the rarest of the rare uh principle and as a matter of fact it is the death is always in
debt penalty is always an exceptional thing when which you should uh award one and of course
please use these please look into these circumstances also which are there existing which most of
the time rather i would say majority of the cases we miss and they they don't go into the these
circumstances and these circumstances are also relevant with this kind of judgments i think what
you said that the theory and we are on the progressive uh set of uh okay uh i think theory we are
adopting okay okay so so this is seemingly the way forward moving here thank you so much uh mr
sanji chada ashok bagariya as well as the sir chandra for sharing your views and insight with us and
our viewers as our experts were pointing out and explaining to us not only the judgment its context
but also what it signifies and in terms of the overall debate on death penalty where do we stand
we'll keep a close watch on all the developments on this aspect and many others as well and keep
on bringing you detailed analysis till then keep watching sunset television thank you