Anushka Gupta, National Law University Delhi
ABSTRACT
Capital Punishment is a polarizing matter in various fields of discourse – from academic papers to dinner table debates. The very gravity and finality of a term such as “Death Penalty” sparks divisiveness of a high intensity such that it is problematical to come to a rigidly “correct” conclusion about the same. The field of Jurisprudence is no exception to the norm of divisive discourse around the Death Penalty. This paper aims to highlight one such pattern of discourse arguing against Capital Punishment provided by Legal Realists and Critical Legal Studies scholars. The argument rests the validity and support for Capital Punishment on an ardently Formalist or Positivist understanding of Law which perceive the application of the Law to be consistent and unwavering. The same is in turn critiqued to be a legal fiction and not representative of the manner in which legal structures function in a sometimes arbitrary and unjust manner – rather than relying on watertight, objective rules.
Accordingly, this paper aims to place these schools of thought in the context of the Indian Death Penalty framework i.e. the Rarest of Rare doctrine as posited in Bacchan Singh v State of Punjab. The paper sets out to test the hypothesis presented by the anti-formalist critiques – and assess through case laws and scholarly research whether the functioning of the Rarest of Rare Doctrine is (a) based in a formalist understanding of law and (b) has resulted in inconsistent and unjust decision making as anticipated by anti-formalist critiques.
Keywords: Death Penalty, Formalism, Legal Positivism, Critical Legal Studies, Legal Realism, Punishment, Retributive Justice
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