A negation of the individual and a collective moral decay

News: Recently, a designated fast track in Gujarat decided the fate of 78 accused in the 2008 blasts in Ahmedabad. 49 people were convicted. The Court Sentenced 38 of 49 people to death.

According to a report by Project 39A at the national law university (Delhi), a total of 488 prisoners in India were on death row. This is an increase of 21% from 2020. This judgment has added 10% more to this number.

It is a reflection of the increasing trend of retributive justice.

How does it reflect retributive justice?

Debates on the death sentence focus on its efficacy or constitutionality. But the issue that it provides the state with the monopoly of violence or retribution is ignored.

This monopoly is justified by arguments that this prevents crime or is a measure of long-due justice. But this punishment under the rarest of rare doctrine is a reflection of retributive justice.

Rarest of rare doctrine allows the use of public sentiment as a judicially reliable standard in giving death sentences.

As Justice Bhagwati had pointed out in Bachchan Singh versus State of Punjab(1980) that discretion under doctrine is a poor substitute for principles. When an institution can kill someone using any standard, it defeats the moral imperative to do no harm.

How lack of standards was displayed in the current verdict?

Following are the criticisms put forward by the authors in the article:

First, the court orally convicted several accused ‘en masse’, instead of declaring charges separately. Out of 78 accused, 49 were convicted, consequently, the role of each accused was not indicated.

Second, the defense was directed to commence sentencing argument without access to written judgments. Even it was unknown, which accused are awarded the death sentence. It crippled any possibility of making a proper mitigation argument.

Mitigation requires going into the humanity of the accused, which itself is subjective. It is therefore important that that penalty should be also seen from the angle of retributive Justice.

Source: This post is based on the article “A negation of the individual and a collective moral decay” published in The Hindu on 3rd March 2022.