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Death to death sentence

Death to death sentence
Highlights

Death to Death Sentence, Hindi Movie “Dushman’’, Telugu Movie Khaidi Babai. Years ago, there was a Hindi movie “Dushman’’ wherein the hero, a lorry driver, kills a person accidentally. It is culpable homicide. The deceased was the breadwinner of a poor family.

Years ago, there was a Hindi movie “Dushman’’ wherein the hero, a lorry driver, kills a person accidentally. It is culpable homicide. The deceased was the breadwinner of a poor family. The judge, a practical man, realist who could weigh the pros and cons of his judgment, entails the criminal to take reins of the family. But how will the family take the killer as part of their family? The destroyer becomes the protagonist. It was an interesting melodrama with extremely dramatic, humanistic undertones and it made box office gel. It was subsequently made into a Telugu movie (Khaidi Babai) which was equally successful. There was a sequel to this. I worked at Sambalpur, All India Radio. R.S.Mahapatra, a first class judicial magistrate and a good friend of mine, came to me one day and said: “I had another hero in my court the other day, who took the lead from this offender in ‘Dushman’ (the popular matinee Idol Rajesh Khanna was in the main lead) and killed not one but three. I sentenced him to life.’’ Reformation for one ended as a bad example to the other.

Capital punishment has been a topic of debate in this country for long. The death sentence, though legal from the Indian penal system in a prescriptive sense, runs counter to the core objectives of the justice system and underlines the incoherence of Indian penology, according to some legal luminaries as also Human Rights activists.
In a recent judgment, a Supreme Court bench, modifying the Madhya Pradesh High Court’s verdict against Dwarikendra from death to life sentence, said: “Brutality of murder need not warrant for the age-old concept of an eye for an eye, but the courts should be more sensible in applying the finest strands of jurisprudence in not getting carried away by the emotional retributional attitude”. They asserted that “we cannot lose sight of the fact that brutality cannot be the only criterion to categorise the crime as the rarest of rare one’’.
Macaulay, who drafted the code more than a century back, was very cautious when he said that capital punishment ought to be sparingly inflicted. He provided a rationale for making this punishment applicable to the rarest of rare instances. And here is the slippery ground. How sparingly? Is it the individual discretion of the judge in a given case or from the point of view of society at large affected by the crime or enraged by it? Can a judge enlarge his vision in weighing the damage consequent to the crime and also accommodate the public perception into consideration? The history of jurisprudence has become much more subtle and ‘sparingly’ complicated.
A man’s mind is often fallible when it concerns the psyche of the community. Also, individual sensibility sinks and submerges the collective jingoism. This is more true when one judges a crime which results in a mass upsurge. But how does the collective psyche of a society come into consideration in a crime committed by one or a few individuals? Today’s media explosion brings any happening to the doorstep of the individual and his reaction ventilates the collective upsurge.
Take the recent Nirbhaya case. The public anger and outrage across the country was unprecedented and electrifying. Lakhs of people pre-judged the crime through media even before the verdict could be arrived at in the courtroom. The eventual judgment was nothing but a ratification of the popular view. Very often mass upheaval undercuts selective sensibility.
The wisdom and discretion of the court is prone to get muddled in the din created outside its four walls and the popular perception very often cuts through the individual and independent sensitivity of the judge, however objective he may be. The avalanche of a generalized emotion outweighs the nuance of the judicial sensitivity. This is a corruption, unavoidable in today’s media ‘shock’, to borrow an expression from Alvin Toffler. This is an inevitable compulsion and limitation. Is the court trying to be wary of the people outside, conscious of their reaction? Or get carried away by the upsurge? Was Macaulay keeping these restraints in his mind when he wanted employment of the utmost discretion? Did the bench in the recent judgment recycle the very apprehension?
Here is how a housewife from South reacted to the verdict on Nirbhaya case sentencing all the miscreants to death. “Ordinary people like us are not Mahatmas or saints….. all fathers and mothers and sisters of women(sic) are satisfied that justice has been done’’. Is this too simplistic a view that jurisprudence can be brought into?
This is how a Madras High court advocate reacted: “The death penalty is not only barbaric and immoral, but also contradicts the criminal justice system’s core objective of rehabilitating and reforming the offender. The guillotine shuts the opportunity once and for all. This penological schism is compounded more and more in today’s world where the crime has become a day-to-day occurrence and the criminal is getting more emboldened because of the lack of teeth or the will of the system in bringing him to book.”
It was Justice V.R.Krishna Iyer, a former judge of the Supreme Court, opposed to capital punishment who said: “Half the world has abolished it. Gandhi was against it. God has given life and He alone can take it away. …” A death sentence on the death sentence is the finest tribute to the culture of the Buddha and Gandhi.
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