39A Podcast [Episode 3]: In Conversation with Justice Kurian Joseph on the Death Penalty

39A Podcast [Episode 3]: In Conversation with Justice Kurian Joseph on the Death Penalty

AS: Welcome to another episode of the 39A
podcast. This is Anup Surendranath from Project 39A. We’re an extensive criminal justice program
based out of National Law University, Delhi. In this episode, we are in conversation with
Justice Kurian Joseph, former judge of the Supreme Court of India between March 2013
and November 2018. Justice Joseph was also a Judge in the High
Courts of Kerala and Himachal Pradesh between July 2000 and March 2013. In today’s conversation we will use the
last judgment that Justice Joseph delivered as a judge of the Supreme Court to reflect
on the administration of the death penalty in India. Justice Joseph, thank you very much for your
time and welcome to the 39A Podcast. [KJ]Thank you. AS: Justice Joseph, I want to start with
Chhannulal v State of Chhattisgarh, which was your last judgment in the Supreme Court
and you delivered a partial dissent calling for the reconsideration of the death penalty
in India. In that you were particularly concerned with
the arbitrariness in death penalty sentencing. What I wanted to ask was, are you of the view
that arbitrariness is inherent to death penalty sentencing, irrespective of what changes we
might make to the sentencing framework? AS: That is my view as well, but I can
trace this view from the judgments of the Supreme Court. After Bachan Singh if you see a series of
judgments dealing with aggravating and mitigating circumstances – the way the court has cautioned
the trial judges, and the High Court and Supreme Court itself, that we should be doubly sure
that we do not fall into this trap of being arbitrary in sentencing the person for death
penalty. I also had my independent thinking into it,
because there’s no consistency. It was depending on person to person, the
culture which the judge comes from, the place which a judge comes from, the exposure the
judge had to the academic part of sentencing, and his sensitivity on several aspects I have
seen. For example, take Justice Krishna Iyer; Justice
Krishna Iyer introduced poverty as one of the mitigating factors. I tried to introduce the youth of a person
as one of the mitigating factors. Jurisprudence has been growing more in favor
of the mitigating circumstances than the aggravating. AS: But do you think that this arbitrariness
and inconsistency is solvable or do you think that’s a problem that we cannot solve really
and it is inherent to this exercise? [KJ] After all a judge is a human being; you cannot deny that fact. Just as a victim is a human being, just as
the perpetrator is a human being, so is the judge, so is the prosecutor. So, there are some things inherent in all
human beings that you cannot provide absolute scientific data so as to perfectly fall
in to a particular position or an inference that it is absolute – that ‘there is no
other way, and this is the only way’. We call it, we have been trying
to take it as the ‘rarest of rare’. Even this ‘rarest of rare’ test again
has gone into finer positions now; That it, may not be any other punishment would not
be suitable also. So, there are several aspects which the court
has, in a way, a sensitive judiciary has been struggling to introduce the new jurisprudence
in favor of the life of the person, in favour of saving the
life of a person. AS: Another concern you raised in Chhannulal
about how the death penalty is administered and adjudicated was the role public opinion
in death penalty cases. Is the judicial invocation of notions like
the ‘collective conscience’ in death penalty judgments contrary to the very foundations
of the rule of law? The use of ‘collective conscience’ – does
it come very close to adjudication by what people want rather than what the law demands;
and that it’s in some sense deferring to demands of the people rather than the law? [KJ] What we see in today’s world is
not the well informed opinion formed by the public after having regarded the entire aspect
of the matter. Only then it is a conscious decision
– a conscious opinion. Today, I am referring to a situation where
what we see is not an informed formation of a conscious opinion by the public; what we
see today is a public opinion; it is not necessarily well-informed in the sense that people may not know about the defenses available to the accused people may not know the legal position, people may not know what
evidence the prosecution is in a position to adduce before the court,
people may not know that the court can only go by the evidence and come to a conclusion
that beyond reasonable doubt that this person and this person alone has committed an offence. So, these are not available to the public
when they form an opinion; whereas if they had been in a position to understand the legal
system and legal positions, then it would have been an informed opinion of the public. Only an informed opinion of the public can
be called public consciousness. But unfortunately, what the media today does
is not an informed opinion of the public but an ill-informed opinion of the public, because
they want ratings for their papers, they want ratings for their media, they want a rating
of their social media also, whatever it is. So, they always tap on the ill-informed position
of the public so that the public gathers opinion. That is not the public consciousness – that
is one thing. Secondly – see, a judge or a jury or a judicial
system cannot go on public opinion or even public consciousness. Public consciousness, however, informed may
it be; even then, what is evidentiary value before the court and how far that opinion
can be taken as an evidence – this way or that way – is yet to be seen by the court
in the adjudicatory system. So we have a well established system of law
– procedure law and substantive law – so that the facts, or the figures or the data
or the evidence is actually seen by the court and the judge finally takes a decision as
to what evidence can be relied on, what cannot be relied on, what is admissible, what is
inadmissible because we have the Evidence Act on the admissibility of evidence. We have procedural law – the criminal procedure. We have the panel law, the Indian Penal Code. These three things come into play before a
court, whereas these three things do not come into play before the public when they form
an opinion, be it a conscious decision also. So that is the difference. Even if academicians take a decision, form
an opinion also – that may not as such be binding or even shall not be of persuasive
value also on the court because court has to see what the people said but the court
has also to see what can be seen in the law before it, with respect to the particular
accused person and the crime which he has been accused of. So, it is very unsafe to go by public opinion. But having said that, I would add one thing
more. So look at the plight of a poor Sessions judge
on the trial side. On one side, the public has already formed
an opinion about the conclusive situation where a particular person has committed the
crime. So the trial is over. In the mind of the public, a picture has been
drawn already and established – they have established that the crime has been committed
and he is the person who committed the crime. There is another aspect of it also. Look at the situation of the trial judge. Before he goes to the trial, a trial has already
been conducted by the media and they have established that the crime has been committed
by a particular person or a group of persons, and they are being tried by the court. Second thing, even the police who are part
of the investigation – they also conduct a press conference as part of their investigation,
showing to the public that these are the accused who have committed the crime. And this poor victims can sometimes be seen,
covering their face – helplessly trying to show to the people that they are not the persons,
but they have been actually trapped or they are otherwise innocent. This is the only way they can show before
the public that they don’t want to show their identity. So, when the court is actually trying the
case there is a particular background among the society. And thirdly, even when the trial is going
on, there is a new trend of the public demanding the punishment – the ultimate punishment of
the accused – even before the trial has started – which you have seen in Delhi in a couple
of cases; there is public agitation outside the court while the trial was going on. So, this is the pressure in which a trial
judge conducts a trial. I used to say if the judge does not grant
the punishment the public is demanding, probably the public will impose the punishment on the
judge when he comes out. Such is the pressure. But when a judge assumes office taking a solemn
pledge that he will discharge his duties without fear or favor, affection or ill-will – so
he does not have to fear the public opinion, he does not have to favor the public opinion. He will have to take an unbiased decision. This is theory. But in practice, I have to say there is some
pressure being created by this sort of media trial in public, because a judge is also a
person belonging to the public. AS: You said that judges are also human
beings. Are you concerned that public consciousness
or public opinion seeps into all levels of the judiciary in the context of adjudicating
crime and it is not just the Sessions judge; are you concerned that it seeps in rather
uncomfortably at all levels? [KJ] Yes, when I said that judge is also
a human being – I said theoretically or ideally we can say that he should be above all this. But as a human being, some involuntary process
of his human nature will permit something to creep in, and the maturity of a judge,
or the capacity of a judge is to get above all those things and then show that he is
an independent judge, in an independent judiciary, doing an independent exercise. AS: But you’re saying it is a massive
struggle? [KJ] It is a matter of great struggle. AS: A very common argument, Justice Joseph,
we hear in support of the death penalty is that if we keep the death penalty, it might
even prevent one person from committing a crime, and if it prevents even that one person,
then it is worth it if it achieves even that amount of deterrence, it’s worth it. What do you think of that argument? [KJ] Yes, you can say ideally it is right. But if we analyze the crime record of our
own country – forget about other countries – I don’t think that we have any substantial
proof to hold that the deterrence has actually served its purpose. If that were the situation, with the capital
punishments we have executed, such crimes would not have been repeated, but such crimes
are simply being repeated. So deterrence has not gone into the mind of
the people in changing their attitude towards commission of the crime – the people, in the
sense, the accused or such people. So, to me, it is unsafe to rely on the deterrence
theory of punishment, at least, as far as capital punishment is concerned. AS: Does it show, Justice Joseph, that
we have a rather simplistic understanding of the relationship between crime and punishment
– that we seem to think that harsher and harsher punishments will stop crime. But isn’t the reality that crime is a much
more complex social phenomenon and that reduction in crime in society requires a very different
approach to it? [KJ] I hundred percent agree with you. This punishment alone will not solve the recurrence
of crime in society. It needs a lot of societal corrections – that’s
one thing. Secondly, to me, having executed a person,
society forgets the whole event. But whereas if a person is kept behind bars,
that will send a stronger message that if you indulge in this sort of a crime, you will
be like the one who is inside there, because after execution it’s over. But he is a living deterrence – the person
in jail; he is a living deterrence than a person who has been executed for his crime. AS: There have been many instances of brutal
sexual violence and acts of terrorism that have caused a lot of alarm in our society,
clearly. Many would argue that it is legitimate for
society, for us to collectively pursue some sort of revenge for those actions. So it is not about deterrence – let’s leave
the deterrence aside – this is about society wanting a certain kind of revenge. Isn’t there a democratic conundrum there
– that if society wants it, it should be able to pursue that, and who is anybody to stop
that? [KJ] Well, retribution as a punishment
does not go with the purest form of democratic principles. Retribution is old theory of eye for eye,
tooth for tooth, hand for hand; in some countries even such punishments are even now in practice. But that will not go with democracy. In democracy the approach on prevention of
crime, or control of crime is totally different – it is not retribution. So if somebody has taken my life, or my son’s
or my relative’s life, then the only way, appropriate punishment will be to take that
person’s life. That is not, unfortunately…unfortunately,
rather fortunately, that is not the way the crime and punishment have to be approached
because one will have to understand the circumstances which led to the commission of crime, one
will have to go to the nuances of the crime, one will have to go to the repercussions the
crime had on the society, one will have to see the background of the criminal and the
circumstances of aggravation or mitigation. All these are several aspects to be seen. If we concentrate only on the crime aspect
alone, then these considerations will not be there. So our democracy will be seen as the rule
of the law. So law enjoins a right on the criminal to
establish before court these several aspects which will give him a protection from being
awarded the worst punishment. AS: Very often, the victims’ rights are
presented against the rights of the accused – as though we can protect victims better,
if we keep reducing the rights of defendants. But don’t you think that somebody who suffers
a crime and somebody who also perpetrates a crime are both indicative of state and social
failure? [KJ] Certainly, I agree with you. I would like to approach the issue which you
posed with a different angle. As far as the victim is concerned, more than
the rights of the victim, the state should concentrate and the society should concentrate
on rehabilitation of the victim or rehabilitation of the members of the family of the victim. And the accused is concerned, law demands
that the system should actually think about reforming him. That is the approach. It’s not about finishing him. Because a person has committed a crime, that
does not mean that that’s the end of all – no. The law actually demands that the first attempt
should be to see whether he can be reformed and brought back to the society as a responsible
citizen who will not indulge in such crimes. AS: You spoke about the background of the
accused, the circumstances of the crime – what led to it. The law recognizes in Bachan Singh saying
the mitigating circumstances must be brought to the court. But given the reality that a vast majority
of death row prisoners are extremely poor, we see that such information is rarely brought
before the court, because they don’t have good representation. Is this mandate of the law rendered meaningless
because of this interaction between this poverty and very poor lawyering? [KJ] Forget about what the courts have said
in a series of judgments after Bachan Singh forty years ago – look at the comprehensive
study conducted by the Law Commission which presented its 262nd report where they have
referred to all these aspects. They have analyzed and reached a conclusion
that the people who have been awarded the death penalty actually belong to very poor
– financially, socially poor background. So, that is a reflection that they did not
get the required legal assistance to present mitigating factors before the court. So if you ask me, it is a fact – the systemic
failure in extending the best available legal assistance to those people. AS: You also said that one of the approaches
the law must take is to assume that every person is capable of reformation. In that sense, what you are advocating is
for a strong presumption of reformation and that would mean that there is a very high
burden on the state to show that somebody cannot be reformed if you want to take their
life. Do you see that happening in the cases at
all? In your experience, is there any meaningful
discussion of reformation at all in our jurisprudence? [KJ] I have hardly seen a judgment of any
court where the state has made an an effective effort to present before the court that the
accused is beyond any reformation. It is the duty of the court to see and ask
the prosecution to establish this despite all aggravating factors. Even the prosecution – the State fails to
present all the aspects of the case. It is actually a duty cast on the court to
ask the State, the prosecution to establish that despite all the aggravating factors,
is the accused beyond the possibility of reformation? That is the one major concern
that the court has to address. We say ‘prove beyond reasonable doubt’
in civil, and absolute proof for arriving at the conclusion that this is the person,
and he is the only person, and no other; so the standard of proof is much, much higher. But the degree of the requirement for awarding
capital punishment is much more, according to me, on the court. Have you ever seen a case where a court has
made an attempt for the psychological evaluation of a person? Because there are a lot of psychological factors
in the commission of the crime. Has there been any attempt on the part of
the court in any of the cases you have seen where the court has asked the prosecution
to conduct a psychological evaluation of an accused; which led to the commission of the
crime; and which would also show whether the person is capable of reformation? Just as we have physical, organic, systemic
problems, so also there are mental factors going into the psychology of a person. A proper evaluation by a competent team of
doctors would alone be in a position to assist the court as to whether a person is capable
of being reformed despite the commission of the crime which has already
been established before the court. So, the court’s duty in that way – because
the court is actually awarding an irreversible punishment, there is no point in repenting
about it, there is no point in writing so many theses about it after the person has
been executed. This is the only irreversible punishment;
so keep that irreversibility in mind and see and see whether despite all that has happened, whether the person is capable of reformation. And that is a burden cast on the court; if
the court does not get assistance, then the court should elicit the assistance from the
appropriate sources so as to reach an absolute conclusion that there is no scope at all in
reforming the person and bringing him back to society. AS: Staying on the theme of reformation,
I wanted to discuss with you the judgment of the constitution bench in Sriharan which
basically said that the High Court and the Supreme Court have the power to ensure that
somebody can stay in prison for the rest of their natural life, and that the courts can
take away the remission power of the state. So basically, saying that the person will
stay in prison for the rest of their natural life Do you really see a moral difference between
the death penalty and that kind of life imprisonment given this context of reformation? [KJ] Well, a lot of studies need to be
done on that aspect. The death penalty takes the
person away from this world whereas lifetime imprisonment takes away the person from his whole society, his
family, his friends, his relatives. He is actually denuded of everything in life;
except that he has some sort of a vegetative life in the prison as a number, not as a human
person. Therefore, it is not the court to direct the
state not to use its power of remission, because remission power is to be seen and exercised
by the state, where they have a lot of evaluation done The court while ordering the punishment is
not in a position to say as to whether the person has improved later, his mental faculty,
his physical faculty, his concepts, his education; there are several aspects which go into the
exercise of remission. So, the court cannot prejudge; again, wrong
will be committed by court saying that there is no scope for reformation; let him be in
jail. No, that is equally bad. Therefore, in life punishment to be seen as
for life, the discretion should be left to the state to be exercised at the appropriate
time; but at the same it should not be arbitrary also; that is why in the guiding principle,
the Supreme Court said no such remission shall be the power of remission shall be exercised
before a person completes fourteen years. So, a minimum is actually ensured by the court
so that the liberty given to the state – the power should not be exercised arbitrarily. So, beyond that the jurisdiction – the jurisdiction
of the state to make an impartial, unbiased, neutral assessment as to whether the person
still needs to be continued in prison or he is far fitter than anybody else outside the
prison to be sent back and integrated to the mainstream – that should not be taken away. The court can say rigorous should be the method
of evaluation or assessment; that much caution the court can give – but not absolute taking
away – no, that’s wrong. Once a person is in jail, you must also see
what reformative assistance is given to the accused in jail. We condemn him and leave him there, but we hardly
take any follow up action to reform him in jail The purpose of putting him in jail is to explore
the possibility of reformation but he needs to be assisted. So, that also is the systemic failure – according
to me, this also should be seen. This particular aspect also needs to be seen
while you assess in the matter of remission while the State makes a decision for remission,
or not to give a remission. I wish the judges of the superior courts also
make periodic visits in jails across the country. They will know the differences in the jails,
they will see the approaches the wardens have on the prisoners, they will see the various
reformative measures taken in the jail, they will see how people would thirst and would
really want to come back into life, they will see the frustrated people, they may be in a position to see on their own the inhuman nature of treatment sometimes given to them
– there are so many things. So, once you actually have an experience by
visiting a jail and spending some quality time there – not to go and see, but be in
the jail for maybe a day, and spending time with the convicts there without disclosing
your identity because if the identity is known, then probably the prisoners may themselves
cook up stories sometimes; They may try to elicit compassion
– there are so many aspects. There is security also. So they should go incognito without disclosing
identity, go and spend some quality time, speaking to the prisoners, speaking to the
wardens, speaking to the NGOs working there – you will get a lot, lot,
lot to learn from them. I have had such experiences,
I have visited jails. I have learnt so many things from what is
actually the ground reality in a jail. AS: Justice Joseph, you were a judge for
18 years in the appellate courts. Reflecting on that experience, how vulnerable
do you think the Indian criminal justice system is to wrongful convictions? [KJ] It is a fact that it is vulnerable. You might have read in the recent past – towards
the end of my career, I’d issued notice in a review petition, and there was a substantive
Special Leave Petition also filed along with the open hearing of the Review Petition also. I was a part of the bench – in fact I was
heading the bench – and the appeals were heard, and they were all acquitted. They were all sentenced to death, confirmed
by the High Court, confirmed by the Supreme Court Luckily they got the chance of filing a review;
and an opportunity to have the review heard in open court. Therefore, at the time of hearing this review
for admission, we found that there are substantial rights and defenses available to the person
who has not even filed a Special Leave Petition – who had reconciled to his fate – or probably
he may not have had the further capacity to take things forward in the Supreme Court,
because he might have fought his legal rights maybe around twenty years; he might have been
exhausted; his family might have exhausted; he might have given up; that it was his fate. Ultimately, if you don’t have the wherewithal,
you will leave up some time, even knowing fully well that you are innocent. So we gave this liberty. So that shows that the system is vulnerable
– no doubt about it. AS: Do you think wide prevalence of custodial
violence, custodial torture, prosecutorial misconduct – all of this makes it a very dangerous
criminal justice system in which to have the death penalty, especially given the irreversibility
of the punishment? [KJ] I am of the view that this is high
time the country should think as to whether it should be retained in the statute book. You have seen in certain criminal, penal statutes
coming in that even the confession itself is stated as the custodial confession. The custodial confession is treated as admissible
evidence – so where does it go? The way the Indian prosecution system, the
custodial interrogation – several stories we have heard; we read in the papers also
– the way the police interrogates a person; and if in that process a person, left without
anything else makes a statement; or he is made to give a statement – if such a statement
given in custodial interrogation is made admissible, and the court is statutorily bound to rely
on it, it is quite unsafe. According to me it is high time that we as
a civilized society, as many countries have done across the world, that we should, it
is time for us to rethink about the retention such a punishment in the statute book; and
we should think of appropriate other punishments than this. AS: Justice Joseph, your partial dissent
in Chhannulal is in many ways a call to a more progressive constitutional future – perhaps
an opinion that is way ahead of its time; but now it has been forty years since the
constitutionality of the death penalty was upheld in Bachan Singh. But sitting here today, how do you assess
the constitutional future of the death penalty? [KJ] Well, Chhannulal is my judgment,
and the dissent was my brothers’ (judges). That is a different aspect. But I am saying that I felt that it is 40
years now – 40 years after the Bachan Singh, which upheld the validity of the death penalty. And if you see down the line, 99% of the judgments
rendered by the Supreme Court have in fact watered down the imposition of the death penalty. Only very, very limited scope left with the
court in awarding the death penalty. While assessing the mitigating factors, the
court has gone to the extent of saying that only if the court is convinced that this person,
the accused, is beyond reformation, then alone this can be awarded. And how do you arrive at such a conclusion? A judge who is a legally trained person – unless
he is assisted appropriately by the required corners – psychological, social, and so many
other factors, that there is absolutely no scope that there is a scope for reformation
itself – is to be seen in the Indian context because he has been swinging between death
and life for twenty years. And if you assess the conduct of any death
row convict in jails who have spent about ten or fifteen years, how reformed they have
become in the process, knowing fully well that they are going to be executed; so they
never went as a lawless person. They have been mild, sober, they pursued their
education, they showed signs of improvement, they wanted to come back to life, they wanted
to be civilized persons – all these are signs of reformation. Couple of instances I have heard – tired of
being in jail, people said better to execute and finish it. That is a different thing altogether. That absolute frustration in having spent
about ten to twenty years in jail does not mean that he is not capable of reformation. He only said better living like this between
life and death and a life of no meaning, better I leave the world. That is the cry of absolute frustration, and
that cry according to me is the cry for help – to come back to life and be in society. As in every suicide we say, ‘every suicide
is a cry for help’ – likewise this sort of a frustrated cry of a person, “better
you finish me’” is a cry actually for help – to come back to the mainstream of life. AS: Justice Joseph thank you so much for a very reflective and honest conversation with us today that has traversed the philosophical difficulties with the death penalty the difficulties of using it in a system like ours, and highlighting some of the deep problems with with the criminal justice system in India We really appreciate this conversation.

1 thought on “39A Podcast [Episode 3]: In Conversation with Justice Kurian Joseph on the Death Penalty

  1. Amazing video.. Really knowledgeable.. I appreciate the efforts of NLU Delhi for making such a video which provides information regarding the topic of huge debate and discussion..

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