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Should a state have the legal power to take a person’s life? For several countries that have abolished the death penalty, the answer is a clear ‘no’. Even if retained on the statute book, it is a power that must be exercised with utmost restraint and thought. It’s not hard to see why. Regard for human life is, after all, central to justice and civilization. A death sentence under state sanction places society in a morally fraught position. In India, the judiciary has said the death penalty will be invoked only in the “rarest of rare" cases. On Monday, the Supreme Court took another step to ease the force of this provision. It drew into focus the need to give a person convicted of a capital offence a “meaningful opportunity" to argue for “mitigating circumstances". In many cases, the court noted, trial courts pronounce a sentence on the very day of conviction, thus allowing too little time for the accused to make a case for a lighter burden. In this respect, the odds are stacked against the accused. While the prosecution has the entire trial’s length to argue for maximum punishment, it is only after a verdict of guilt that the accused can plead for leniency. Such an opportunity, the court said, is a “valuable right" for the accused.

The apex court has referred the matter to a five-judge Constitution bench, asking it to set out norms for sentencing and examine the possibility of focusing on “mitigating circumstances" even at the time of framing charges. In doing so, the court is steering the discourse around capital punishment away from the ugly baying for blood that often surfaces around high-profile criminal cases. Instead, it appears keen to emphasize the fact that even a person held guilty of a grave violation has a minimum claim on life—and the right to defend it. The Supreme Court’s stance suggests that trial courts might consider not only a crime’s particular context, but other life factors—say, of birth, privilege, psychology and exposure to violence—that may be relevant before it sends a convict to death row. It can be argued that this directs attention beyond the facts of the case to the actual purpose of punishment. On retributive justice as a deterrent, the jury is still out. The evidence remains weak that sending criminals to death row deters others from walking the same path of crime. For example, in cases of sexual violence against women and children, while our laws have been hardened to permit harsher punishment (including the noose), these measures have done little to enhance the security of women.

Reformative ideals do not fare much better. Across the world, inequalities of race, caste and religion show up in statistics of criminal justice. It is the marginalized who swell prison rolls—sometimes without trial—and are more likely to attract fatal verdicts. On paper, justice might be blind to social tags and gaps, but the judicial process is carried out in a system loaded against the weak, by men and women constrained by prejudice and power. The Supreme Court’s deliberations will hopefully improve our guard rails and lessen the chances of bias and inequality warping legal outcomes. Finally, even if our top court hasn’t sought to take up the bigger issue, a debate stirred by its call for a better balanced approach to punishment could well lead us to rethink the wisdom of capital punishment. As trials are not foolproof, miscarriages of justice do occur. And an innocent put to death by a faulty trial is murder by the state. Must we risk such a dire result?

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