There Is No Substantial Proof For Death Penalty As Deterrent To Crime : Justice Kurian Joseph [Project39A Podcast]

Project 39A, NLU Delhi  is inspired by Article 39-A of the Indian Constitution, a provision that furthers the intertwined values of equal justice and equal opportunity by removing economic and social barriers. These are constitutional values of immense importance given the manner in which multiple disparities intersect to exclude vast sections of our society from effectively accessing justice. Using empirical research to re-examine practices and policies in the criminal justice system, Project 39A aims to trigger new conversations on legal aid, torture, DNA forensics, mental health in prisons, and the death penalty.

The 39A podcast series is an attempt by Project 39A to take conversations on the criminal justice system to a broader audience, beyond those associated with the law. It is a recognition that criminal justice issues needs informed deliberation on a much wider scale and speaks to a broader vision of academic/ research endeavours innovating their communication strategies.

In this podcast Project 39A Director Dr. Anup Surendranath speaks to Justice Kurian Joseph.

The discussion started with Justice Kurian Joseph's partial dissent in Channu Lal Verma v. State of Chhattisgarh where he spoke of the reconsideration of the death penalty and the arbitrariness in the manner in which it is awarded.

"After Bachan Singh, judgment after judgment cautions the trial judges, the High Courts, and even the Supreme Court to be doubly sure in considering the mitigating and aggravating factors and to ensure that there is no arbitrariness. But there is no consistency- it varies from person-to-person, the culture, the place which the judge comes from, his sensitivity, the exposure the judge had into the academic part of the sentencing...like Justice Krishnaiyer introduced poverty as a mitigating circumstance. I introduced the youth of the accused...", the former apex court judge explained.

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"Just like the victim, the perpetrator or the prosecutor, even the judge is ultimately only human. There can be no absolute scientific data to fall into the perfect inference. We had started with 'rarest of the rare', which has now been fine-tuned more to cases where no other punishment is found to be suitable", he added.

"Towards the end of my career, I issued notice on a review. The appeals were heard and the accused were acquitted! And this after the death penalty had been awarded, and confirmed by the High Court and by the Supreme Court! But they got a chance to have their review heard in open court, and on admission, we found that substantial rights and defences were available to them! The system is vulnerable...", he expounded.

On public opinion and the trend of media trials

"There is no informed formation of conscious opinion by the public. What we see today is just public opinion. Only informed opinion of the public can be public consciousness. The people may not know the defences available to the accused, the legal position, the evidence the prosecution has adduced...The court, however, only goes by the evidence which proves beyond reasonable doubt that this person did this...what the media taps is ill-informed public opinions. It is concerned with the rating of its paper...But a judge, a jury or a judicial system cannot go by public consciousness, however, informed. They have to see what is its evidentiary nature and how far it can be taken into evidence...Look at the plight of the poor Sessions judge on the trial side. Even before he commences the trial, the public has already formed an opinion that the act was committed by a particular person or a group of persons, a picture is already drawn, the trial by the media is already over...even the police conduct a press conference as part of their investigation and sometimes throw innocent people before the public with their faces covered to show that they have been trapped and their identity has to be concealed...there is public agitation outside courts...media trial puts pressure on the judge who is also person belonging to the public...I have said before that if the judge doesn't impose the punishment as demanded by the public, the public will impose the punishment on the judge...", insighted Justice Joseph.

On death penalty as a deterrent to crime

"Ideally, it is right that if capital punishment deters even one person from committing a crime, we should keep the death penalty. But the crime record of our country shows that there is no substantial proof that deterrence has served its purpose. Crimes have been repeated. So It is unsafe to rely on the deterrence theory in favour of the death penalty...punishment alone will not stop the recurrence of the crime; Societal corrections are needed...When a person is executed, society forgets the event. Keeping a person behind bars for life instead sends a strong message that if you do this, that it where you will be. That serves a living deterrence"

On the public demand for "revenge" against death-row convicts, the judge commented, "retribution as a form of punishment does not go with the pure form of democracy- it is the old theory of an eye for an eye, a tooth for a tooth, a hand for a hand...the approach of the law is to reform the accused, not finish him. It is to see if he can be brought back in to society as a responsible citizen. Similarly, rather than the rights of the victim, the focus should be on their rehabilitation, the rehabilitation of their family members"

"It is the duty of the court to ask the prosecutor to establish if, even after seeing all the aggravating factors, is the accused beyond the possibility of reformation. 'Beyond reasonable doubt' is the standard of proof in civil cases, while in criminal, it is much, much, much higher. There has to be absolute proof that he is the person who did it and that there could have been no other person...Have you ever seen a case where the court carries out psychological evaluation of the accused with the aid of a competent team of doctors? To understand what led to the commission of the crime and whether there is a possibility of reformation? There is no point in repenting or writing long thesis after the execution has taken place. The irreversibility of the act has to be kept in mind", he advanced.

On the State's discretion of Remission

"Death penalty takes away a person from this world, while life imprisonment takes away his whole society, his family, his friends, his relatives. He is denuded of everything in life. The power of remission has to be exercised by the State after an evaluation. The court, when it awards the punishment, cannot say if the person has improved later, whether his mental and physical faculties, his concepts, his education have changed. The court cannot prejudge. The court cannot say there is no scope for reformation so let him be in prison. That is equally bad...So that is why as a guiding principle, a period of 40 weeks has been prescribed as a minimum in jail so that the power of remission is not exercised arbitrarily by the State...", Justice Joseph noted.