NEW DELHI: The Supreme Court has in the past admitted that its own death penalty jurisprudence is arbitrary. The present law, laid down in 1980 in the Bacchan Singh Vs State of Punjab, which established the 'rarest of the rare' doctrine is subjective and opinions on this issue differ, Law Commission chairman and former chief justice of Delhi High Court Justice A P Shah has said.

Justice Shah made these observations at a recently concluded deliberations on death penalty where he was joined by many other former judges of high courts, most of whom sought abolition of the capital punishment which they believed was "immoral (to take life), does not deter (crimes), and is irreversible."

"In the Bacchan Singh case itself, the SC admitted that death penalty is awarded arbitrarily," Justice Shah said and gave the example of Harbans Singh Vs State of UP case of 1982 where three persons were awarded the death penalty and their appeals went before three different benches of the Supreme Court. "Each bench pronounced a dramatically different sentence. This case highlights the state of contradiction and confusion that surrounds the death penalty jurisprudence in India," Shah observed.

The former Delhi High Court chief justice calls this a "legal lottery" as there is little to differentiate those cases in which death penalty is given and those in which life imprisonment is awarded, except may be composition of the bench. "The personal predilection of judges impact whether death penalty or no death penalty is imposed in any given case," he pointed out.

Justice Shah called for a review of the "inhuman act" when international criminal law has abolished death penalty even for the most heinous crimes including genocide, crimes against humanity and war crimes.

Former judge of the Bombay High Court Justice Hosbet Suresh, who had never given a death sentence, concurs with Justice Shah. "Various observations come from SC from time to time, but all of them have led to arbitrariness," Justice Suresh said and favoured dropping of 'special reasons' from the statute books to award a death sentence. Rejecting the option of 'rarest of the rare' crime for death penalty, he said, "We should choose life imprisonment instead." His observations were part of the law panel's consultation on death penalty.

Justice Prabha Sridevan, former judge of the Madras High Court, recounts one of her experiences at the consultation. "One of the first cases I heard as a judge was a case of rape and murder of a young girl by three men. It was a sensational trial. Women's groups sat through proceedings and the trial court had awarded the death penalty," she said.

When the case came to the high court, she commuted the sentence to life imprisonment. Thereafter she received anonymous letters, criticising her judgment. However, recently she discovered that the first accused in the case was now a gold medallist. "He undertook his studies while serving his term in prison," she said, emphasizing that the "duty of the state is to protect life and allow it to reach its fullest potential." Justice Sridevan applauded the Naroda Pattaya judgment where the judge didn't award the death penalty where it could've been easily categorised as the 'rarest of the rare'.

Justice Bilal Nazki, chairman of the Human Rights Commission of Bihar and former chief justice of Orissa High Court, too finds death penalty arbitrary. "There is no doubt that death penalty is arbitrarily applied, but what are the reasons," he asks, and tries to blame the "baggage" his brother judges carry when they are elevated to the bench.

He said there is no adequate background checks with respect to the "baggage" that a person may be carrying when appointed as a judge. Justice Nazki narrated an interesting account. "Chambers and court halls are allotted to judges according to seniority. In Allahabad HC, after an SC judge retired, his chamber and hall was allotted to a judge of a higher caste. Then puja was done before the new judge entered his chamber. This is the baggage we carry," he said.

