108
200. Therefore, ‘individualised, principled sentencing’ – based on both the
crime and criminal, with consideration of whether reform or rehabilitation is
achievable (held to be ‘probable’ in Rajendra Pralhadrao Wasnik), and
consequently whether the option of life imprisonment is unquestionably
foreclosed – should be the only factor of ‘commonality’ that must be discernible
from decisions relating to capital offences. With the creation of a new
sentencing threshold in Swamy Shraddananda (2)107, and later affirmed by a
constitution bench in Union of India v. V Sriharan108, of life imprisonment
without statutory remission (i.e., Article 72 and 161 of the Constitution are still
applicable), yet another option exists, before imposition of death sentence.
However, serious concern has been raised against this concept, as it was upheld
by a narrow majority, and is left to be considered at an appropriate time.
Theories of punishment
201. The 262nd Report, speaks extensively to the penological justification of
the death penalty. It finds that there is inconclusive evidence that this form of
punishment has more of a deterrent effect, in comparison to life imprisonment.
Dismissing the retributive theory of punishment on the ground that it suffers
from lack of guidance on quantifying the punishment that would be appropriate
to impose, it categorically states that:
“Capital punishment fails to achieve any constitutionally valid penological
goals….In focusing on death penalty as the ultimate measure of justice to victims,
the restorative and rehabilitative aspects of justice are lost sight of. Reliance on
the death penalty diverts attention from other problems ailing the criminal justice
system such as poor investigation, crime prevention and rights of victims of
crime.”
202. While the 262nd Report recommends abolition of the death penalty on this
ground, in addition to sentencing having become judge-centric or arbitrary, it
has not prompted Parliamentary intervention. Whether the death penalty
deserves a relook (as recommended by J. Kurian Joseph (dissenting) in
107 Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767
108 (2016) 7 SCC 1
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