Vasudha Misra & Anuj Agrawal.That he comes to court well-prepared is of no doubt. Moments after the matter is called out, the questions start flying in short, intense bursts. Once in a while, he will refer to notes scribbled to the right of the case file, but this does not happen too often. With a pencil in one hand, he can become animated, leaning over his desk to emphasise a certain point. .On any given miscellaneous day, roughly seventy matters are disposed of in slightly over ninety minutes. It is fascinating to watch..In line to become the first Chief Justice of India from Assam in 2018, Ranjan Gogoi, is widely regarded as one of the sharpest minds on the Bench. A stickler to the rules, Gogoi J does not like ambiguity. .And now, he may be on the way to tackling one of the most debated aspects of criminal law – the death penalty. .The Supreme Court and the death penalty.To understand the significance of this debate, one need not look too far back. In April of 2013, Justice Madan Lokur penned a sixty-four page concurring opinion in Shankar Kisanrao Khade..After going through a number of apex court judgments on the death penalty, Lokur J. notes,.“These decisions clearly suggest that this Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the “unquestionably foreclosed” formula laid down in Bachan Singh.”.In fact, this absence of a “systemic manner” has been raised multiple times before, something that the Law Commission of India notes in the 262nd Report. Published in August 2015, the LCI, headed by Justice AP Shah, spoke of the disturbing inconsistency when it came to sentencing..“In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible.” .These findings though, were not unanimous; the report also contains a “dissent” by three of LCI members including the then Law Secretary, Sanjay Singh..Be that as it may, the fact of the matter is that the imposition of the death penalty certainly suffers from a lack of uniformity. Dr. Anup Surendranath, Director of the Centre on the Death Penalty in Delhi, adds,.“Apart from being a problem by itself, the inconsistency in death penalty sentencing in the Supreme Court also sends very confusing messages to the courts below. The use of the ‘rarest of rare’ doctrine by the courts below is rife with error and that is in no small part attributable to the errors, inconsistency and lack of clarity in the Supreme Court itself on the legal requirements of the test laid down in Bachan Singh..There exist so many decisions out there with myriad ways of determining ‘rarest of the rare’ and that ends up producing a situation that is ripe for judges all along the judicial ladder to cherry-pick precedent.”.It is a situation that would make a judge someone like Justice Gogoi deeply uncomfortable. Not least because he has not shied away from admitting the role of individual opinion when it comes to judgments..Sample this 2008 judgment, penned when he was in the Guwahati High Court, regarding contempt proceedings against a newspaper. .“Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions.”.The judge and the death penalty.Six years after that judgment, Justice Gogoi was a part of a Constitution Bench headed by then Chief Justice of India P Sathasivam. The Bench commuted the sentences of 15 death row inmates to life because the state had taken too long to dispose of their mercy petitions..The 154-page judgment in Shatrughan stated that “when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect”..More recently, a spate of recent judgments may provide some indication as to his thoughts on the death penalty. .On September 23 this year, a three judge bench in Dhal Singh [pdf] held that circumstantial evidence, based on which the trial court had convicted the man, “did not form a complete chain of evidence.” The appellant was subsequently acquitted, and the death penalty set aside via a majority decision. The same case saw a dissenting opinion preferred by Justice PC Pant who, while setting aside the death penalty, awarded life imprisonment instead. Justice Gogoi had concurred with UU Lalit J. .The very next day, the same Bench heard a petition filed by one Kamlesh who had been convicted for the rape and murder of a seven year old girl. The Bench committed the penalty of death to one of life imprisonment. The order [pdf] reads,.“Time and again this court has held that the imposition of the death penalty should be the only option available to the Court and the question of any another sentence must be unquestionably foreclosed so as to justify the extreme penalty.”.Two days later, Shyam Singh who was convicted by the High Court for killing his own parents, escaped the noose. Once again, the same Bench held that the reform of such a person was not a foregone conclusion, especially in view of his young age and conduct in custody. The death penalty was commuted to life imprisonment [pdf]..But it were Gogoi J’s observations during the BA Umesh trial that were the most illuminating..Those who were present during the arguments hearing would recall that Justice Gogoi seemed particularly moved by chain of the events that transpired at the house of the victim, Jayashree Subbaiah. On being confronted with Jayashree’s son, Umesh had chosen to spare the son’s life, instead introducing himself as ‘Uncle Venkatesh’. He explained to the boy that his mother was sick, and needed a doctor..“Is Uncle Venkatesh just a name?”, Justice Gogoi had asked during the hearing, almost as if thinking aloud, and went on to observe that even when it would have been easier to just snuff out the last piece of evidence against him, he did not harm the little boy. .The judge had also stated that with regard to the death penalty, 90% of the cases under consideration fall within law’s grey area, and consequently, it is necessary to distinguish between a crime that is ‘horrifying’, but not ‘rarest of the rare’..Nonetheless, the court eventually went on to dismiss the review petition. The judgment, penned by Justice Pant, held that Reddy’s antecedents were ample proof that no reform was possible..But there is more..Two days ago, senior counsel KTS Tulsi was a last minute replacement for AG Mukul Rohatgi in the review of the Soumya judgment. Representing the Kerala government, Tulsi admitted that he had only been handed the file that morning, and that he would require more time. Although initially reluctant to accede, Gogoi J said,.“We’re only allowing because a man’s life is at stake. We will have it on our conscience for the rest of our lives.”.When the senior counsel spoke of the need to prepare for “these kind of piercing questions”, he was immediately reminded by the Bench that,.“These are questions we ask ourselves before passing the judgment. We have to be 101% sure. If there’s even the slightest doubt, the accused should get the benefit of that doubt.”.The signs are clear enough; the question is not if but when.
Vasudha Misra & Anuj Agrawal.That he comes to court well-prepared is of no doubt. Moments after the matter is called out, the questions start flying in short, intense bursts. Once in a while, he will refer to notes scribbled to the right of the case file, but this does not happen too often. With a pencil in one hand, he can become animated, leaning over his desk to emphasise a certain point. .On any given miscellaneous day, roughly seventy matters are disposed of in slightly over ninety minutes. It is fascinating to watch..In line to become the first Chief Justice of India from Assam in 2018, Ranjan Gogoi, is widely regarded as one of the sharpest minds on the Bench. A stickler to the rules, Gogoi J does not like ambiguity. .And now, he may be on the way to tackling one of the most debated aspects of criminal law – the death penalty. .The Supreme Court and the death penalty.To understand the significance of this debate, one need not look too far back. In April of 2013, Justice Madan Lokur penned a sixty-four page concurring opinion in Shankar Kisanrao Khade..After going through a number of apex court judgments on the death penalty, Lokur J. notes,.“These decisions clearly suggest that this Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the “unquestionably foreclosed” formula laid down in Bachan Singh.”.In fact, this absence of a “systemic manner” has been raised multiple times before, something that the Law Commission of India notes in the 262nd Report. Published in August 2015, the LCI, headed by Justice AP Shah, spoke of the disturbing inconsistency when it came to sentencing..“In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible.” .These findings though, were not unanimous; the report also contains a “dissent” by three of LCI members including the then Law Secretary, Sanjay Singh..Be that as it may, the fact of the matter is that the imposition of the death penalty certainly suffers from a lack of uniformity. Dr. Anup Surendranath, Director of the Centre on the Death Penalty in Delhi, adds,.“Apart from being a problem by itself, the inconsistency in death penalty sentencing in the Supreme Court also sends very confusing messages to the courts below. The use of the ‘rarest of rare’ doctrine by the courts below is rife with error and that is in no small part attributable to the errors, inconsistency and lack of clarity in the Supreme Court itself on the legal requirements of the test laid down in Bachan Singh..There exist so many decisions out there with myriad ways of determining ‘rarest of the rare’ and that ends up producing a situation that is ripe for judges all along the judicial ladder to cherry-pick precedent.”.It is a situation that would make a judge someone like Justice Gogoi deeply uncomfortable. Not least because he has not shied away from admitting the role of individual opinion when it comes to judgments..Sample this 2008 judgment, penned when he was in the Guwahati High Court, regarding contempt proceedings against a newspaper. .“Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions.”.The judge and the death penalty.Six years after that judgment, Justice Gogoi was a part of a Constitution Bench headed by then Chief Justice of India P Sathasivam. The Bench commuted the sentences of 15 death row inmates to life because the state had taken too long to dispose of their mercy petitions..The 154-page judgment in Shatrughan stated that “when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect”..More recently, a spate of recent judgments may provide some indication as to his thoughts on the death penalty. .On September 23 this year, a three judge bench in Dhal Singh [pdf] held that circumstantial evidence, based on which the trial court had convicted the man, “did not form a complete chain of evidence.” The appellant was subsequently acquitted, and the death penalty set aside via a majority decision. The same case saw a dissenting opinion preferred by Justice PC Pant who, while setting aside the death penalty, awarded life imprisonment instead. Justice Gogoi had concurred with UU Lalit J. .The very next day, the same Bench heard a petition filed by one Kamlesh who had been convicted for the rape and murder of a seven year old girl. The Bench committed the penalty of death to one of life imprisonment. The order [pdf] reads,.“Time and again this court has held that the imposition of the death penalty should be the only option available to the Court and the question of any another sentence must be unquestionably foreclosed so as to justify the extreme penalty.”.Two days later, Shyam Singh who was convicted by the High Court for killing his own parents, escaped the noose. Once again, the same Bench held that the reform of such a person was not a foregone conclusion, especially in view of his young age and conduct in custody. The death penalty was commuted to life imprisonment [pdf]..But it were Gogoi J’s observations during the BA Umesh trial that were the most illuminating..Those who were present during the arguments hearing would recall that Justice Gogoi seemed particularly moved by chain of the events that transpired at the house of the victim, Jayashree Subbaiah. On being confronted with Jayashree’s son, Umesh had chosen to spare the son’s life, instead introducing himself as ‘Uncle Venkatesh’. He explained to the boy that his mother was sick, and needed a doctor..“Is Uncle Venkatesh just a name?”, Justice Gogoi had asked during the hearing, almost as if thinking aloud, and went on to observe that even when it would have been easier to just snuff out the last piece of evidence against him, he did not harm the little boy. .The judge had also stated that with regard to the death penalty, 90% of the cases under consideration fall within law’s grey area, and consequently, it is necessary to distinguish between a crime that is ‘horrifying’, but not ‘rarest of the rare’..Nonetheless, the court eventually went on to dismiss the review petition. The judgment, penned by Justice Pant, held that Reddy’s antecedents were ample proof that no reform was possible..But there is more..Two days ago, senior counsel KTS Tulsi was a last minute replacement for AG Mukul Rohatgi in the review of the Soumya judgment. Representing the Kerala government, Tulsi admitted that he had only been handed the file that morning, and that he would require more time. Although initially reluctant to accede, Gogoi J said,.“We’re only allowing because a man’s life is at stake. We will have it on our conscience for the rest of our lives.”.When the senior counsel spoke of the need to prepare for “these kind of piercing questions”, he was immediately reminded by the Bench that,.“These are questions we ask ourselves before passing the judgment. We have to be 101% sure. If there’s even the slightest doubt, the accused should get the benefit of that doubt.”.The signs are clear enough; the question is not if but when.
