The legislature and judiciary should “seriously introspect” whether there should be capital punishment in our criminal justice system after 75 years of the Constitution and if it proved deterrent, said Supreme Court judge, Justice Abhay S Oka, here on Saturday.
His observation comes in the backdrop of a recent report of Project 39A, a criminal justice programme at the National Law University, Delhi which stated that the SC did not confirm a single death sentence in 2024 and 2023, while trial courts awarded 139 such verdicts.
Justice Oka also said there is a need to analyse how far our courts have protected the fundamental rights of fair trial and safeguards against arrest under the Constitution.
Justice Oka was delivering the third Ashok H Desai Memorial annual lecture on the topic “What ails our criminal justice system: Some thoughts”, organised by the Bombay Bar Association at Y B Chavan Auditorium. Desai was former Attorney General and Solicitor General of India.
Justice Oka, who became a Bombay HC judge in 2003 and is presently a member of the SC Collegium, said that “easy” measure of increasing strength of judges across courts was not being undertaken in a proper manner, but that alone would not solve the problem. Corresponding infrastructure for courts was also essential, he said.
Unlike Karnataka where he served as Chief Justice, he said the judiciary in Maharashtra struggles to get sufficient infrastructure for district and other trial courts, and several constructions for district courts took place only after orders of the Bombay High Court.
“Of course, to some extent I see there is a change for the good… It is a very sad story that we lack basic infrastructure. In Karnataka, the situation is exactly the reverse. Whatever the court wants, the government gives and, therefore, if you go to some of the courts in Karnataka, you will find far better judicial infrastructure,” he said.
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Justice Oka emphasised that the well-settled principle of “bail is the rule and jail is an exception” should be “strictly implemented”, even for cases under special laws such as PMLA and UAPA with some modification. He raised concerns over the pendency of over 5,000 bail applications in the Bombay HC, inadequate public prosecutors and 80 per cent of prisoners in jail across Maharashtra being undertrials.
He said that in many cases, trial courts impose death penalty and High Courts or the SC have to let off the accused not only on benefit of doubt but also due to lack of legal evidence.
“Even today, when a ‘rarest of rare case’ comes before me, it will be my duty to impose capital punishment. Not as a judge, but as a student of law, I feel that we (judiciary) and the legislature must seriously introspect on one thing, whether in our system, there should be capital punishment. The reason is that our justice system is not foolproof. There is always a margin for error,” the judge said.
“We must also examine whether capital punishments have proved to be a deterrent. And third and most important thing, after 75 years of existence of the Constitution, it is an issue for debate, whether the state can take away somebody’s life,” Justice Oka said.
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Moreover, he said that as per criminal procedures, it was not mandatory for police to arrest each and every accused even when punishment is of more than seven years’ jail term, and accused can be summoned whenever required. However, he added that the situation is “different at grassroot level due to lot of pressure on police machinery, by citizens, NGOs and media” and politicians making statements such as accused will not get bail.
“It is a sad reflection of retributive tendencies which are still present in our society. Common people presume that once a person is named as an accused, he or she has definitely committed the offence,” Justice Oka said.
He said every citizen has the right to criticise judgment in a constructive manner. “However, even some educated people in the media and on social media platforms lack elementary knowledge of criminal jurisprudence and do not understand the difference between grant of bail and acquittal. The judges cannot go by perceptions.”
Justice Oka said that as per his personal experience, he cannot deny that there is an “element of truth in a criticism that people are not getting bail in deserving cases”.
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The SC judge suggested that instead of approaching courts, there should be a grievance redressal framework for victims if he or she has any issue with the manner in which the probe is being carried out and criminal justice suffering from ‘ailments’ can be strengthened with the help of all stakeholders.
