Considering the issue of death penalty in rarest of rare cases, a division bench of the Kerala High Court on Friday initiated a debate on giving harsher life term to the convicts while sparing the rope.

The Kerala High Court on Friday took a call on the death vs life debate for extreme crimes and a division bench that considered the question stood more in favour of life but did not seek an abolition of death penalty altogether.

While considering the references of death penalty given by various trial courts to 10 convicts, a division bench comprising Justices R. Basant and K. Vinod Chandran opined that a harsher life term (without parole, commutation or remission) should be more of a norm.

Among the death references considered by the court was that of one-handed Govindachamy, the convict in Soumya murder case.

Justice R. Basant, who retired on Friday, opined that death sentence and harsh life imprisonment can be considered by both the high court and the sessions courts. He expressed that both courts have powers to impose a harsher punishment.

According to Justice Basant, a larger bench of five judges should consider the matter and formulate guidelines on this aspect. However, Justice Vinod Chandran had a different opinion and observed that delaying a decision would only prolong the agony and trauma of the convicts.

He said that by a specific order, the apex court had not conferred any such power on trial courts.
Relying on the Supreme Court verdict on the famous Swami Sradhananda case, Justice Vinod Chandran opined: “I agree with Justice Basant on the issue of High Court having power to extend life sentences beyond 14 years. But I have a difference of opinion on sessions court having powers to decide the question.”

On formulating the guidelines, Justice Basant observed that a five-judge bench should arrive at a consensus on awarding death sentences in each case. “Unless a five-judge bench unanimously comes to the conclusion that a death sentence is the only option considering the gravity of the crime, the convict should be given a life term,” he said.

Justice Basant also opined that courts should consider Kerala’s social situation while awarding death sentences. “Kerala should set a model for other states in avoiding death sentences to convicts by extending the life term awarded to the victims,” he observed.

The matter will now go to the Acting Chief Justice Manjula Chellur who will constitute a single bench to take a final call in the issue.

Who holds the supreme power?

While the division bench unanimously agreed for giving extended life terms instead of gallows for those on death row, the two judges differed on who should have the power to decide the question.

While Justice R. Basant suggested that both the high court and the sessions court can wield the power to decide the issue, Justice K. Vinod Chandran was of the view that the power should be exercised by the high court only.

Interestingly, members of the bar too stood divided on the issue. “I cannot accept the view (expressed by Justice K. Vinod Chandran) that sessions court should not consider the question of extending the life term. Sessions courts pass verdicts after conducting the trial so they have every right to consider the issue,” said Advocate Sivan Madathil

Even if the session’s court commits a mistake it can be challenged at the high court and Supreme Court, he said.

However, director general of Prosecution Mr Asaf Ali argued that only Supreme Court can arrive at a decision on whether to extend life terms.

Nizhalkuthu: tale of unjustness

The film, Nizhalkuthu (Shadow Kill), coproduced by Adoor Gopalakrishnan, is about the inherent unjustness of certain punishments.

The film is set in the 1940s in a village of Travancore, British India. Kaliyappan, the last hangman of Travancore dynasty, spends all the time drinking and seeking atonement.

The reason for this self-destruction has been the remorse born out of the feeling that the last man he hanged was an innocent. The late Oduvil Unnikrishnan portrayed Kaliyappan.

10 Who await

Govindachamy - Soumya rape and murder Kanakaraj - Puthoor Sheela murder case Antony alias Anthappan - Aluva murder killing 6 persons.

Unni - Kanichikulangara case Reji Kumar - murdering wife and four children in Pattambi
Lawrence - Idukki murder Ramachandran - Vandoor case for killing two women
Pradeep Borah - murdering a couple from Orrisa.

Jojo alias Jomon - murder of mother and grandfather in Idukki Shaju alias Unni - Kollam murder case
Ripper Chandran was the last person to be hanged in the state, in 1991.