A question Albert Camus asked faces the judiciary even today

New Indian Express

2 days ago

The death penalty hides behind a veneer of righteousness, suggesting that justice is somehow always clear and definitive in a society that is without blame or blemish. As to the necessity to establish a precedent, the secret manner in which the state conducts executions at night undermines its assertion that these acts may function to dissuade the populace from similar criminal behaviour. However, courts in most countries harbour scepticism about such philosophising, as they realise that if criminal law is the middle child of jurisprudence, then the law governing punishments is its illegitimate offspring.
India's approach has, for long, been defined by the 'rarest of rare' doctrine, which refers to the premise that the death penalty should be reserved for the most egregious and heinous crimes where no other punishment would suffice. While the famous Bachan Singh (1980) case introduced this doctrine, it has had antecedents. Justice V R Krishna Iyer aptly observed in the Rajendra Prasad (1979) case that the use of the punishment is on the belief that 'social defence against murderers is best insured in the short run by caging them, but in the long run, the real run, by transformation through re-orientation of the inner man by many methods including neuro-techniques of which we have a rich legacy… It is cheaper to hang than to heal. But Indian life—any human life—is too dear to be swung dead save in extreme circumstances'.
Courts have used the doctrine in situations usually marked by extreme depravity and barbaric manner in which the crimes are perpetrated, coupled with the accused's absence of remorse. In Aloke Nath Dutta (2006), the Supreme Court acknowledged that 'what would constitute a rarest of rare case' was to be determined on the basis of the facts of each case, even though 'different criterions have been adopted by different benches of this court, although the offences are similar in nature'.
The Supreme Court has affirmed death sentences on a number of occasions partly on the basis of lack of remorse, while simultaneously emphasising on the significance of reformation and rehabilitation of offenders as primary goals of the criminal justice system. In Mohd Arif (2014), while admitting a lack of cogency when it came to sentencing guidelines, the court quoted Immanuel Kant to acknowledge that the punishment was in itself the end: 'judicial punishment can never serve merely as a means to further another good, whether for the offender himself or for the society, but must always be inflicted on him for the sole reason that he has committed a crime'.
However, as Kant asserts in The Metaphysics of Morals, such a situation subjects the principle of justice to a calculation of interest and, consequently, to the assessment of a price. Ideally, justice should not be regarded as a price to be paid but as invaluable, existing beyond any form of calculation. It must be seen as being beyond even the value of life itself. Justice, after all, transcends sentimentalities—and, for that matter, existence.
Maybe we are not there yet. As the recent 'artistic death' sentences lashed out by our courts would prove, we are very irascible about our sentimentalities and liberal with labelling. Or as Camus puts it, 'in our society, any man who doesn't cry at his mother's funeral is liable to be condemned to death'.
(Views are personal)
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Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court