Author: Sriradha Rai Choudhuri

Hidayatullah National Law University, Raipur

ISSN: 2582-3655


The procedure of giving justice has objective codes to define it but justice itself is a really subjective element. Before giving the verdict, a lot of time goes into analyzing the facts, referring to the evidence and interrogating both sides of the case but still a lot of scopes for discretion remains. The popular and judicial responses may differ resulting in high chaos in society. Both sides may not be properly represented procedurally thus creating a preconception of injustice. Considering death penalty cases, the balance between aggravators and mitigators may differ, different juries may give different reasonings on the same issue, and there may be variance in what is to be considered as ‘rarest of the rare’. Eyewitness tools and lie detection strategies create more arbitrariness than removing them. The Detention of offenders is also based on subjective satisfaction. Sometimes the thought process of the lawyers or the place where the adjudication takes place also introduce the subjective factor into the judgement. The necessity and subjectivity of the death penalty on two opposite ends makes its question of constitutionality critical. This arbitrariness can sometimes lead to improper denial of justice which could be avoided. The balance between objectivity and subjectivity is necessary for true justice delivery.


Two parties in a courtroom. Both want justice but both cannot win. Both think that they may be right in some way but again both cannot succeed in their case. Even if there is a compromise the scales are always imbalanced. Isn’t the denial of justice to one the way to give justice to another? There is always a difference between what the legal fraternity and what a layperson would observe as justice. The layperson would give a ‘heuristic response’ by thinking of a direct punishment to the offender and the judge would generally give a ‘systematic response’ by taking into account all possible considerations and circumstances. This psychological mismatch ends up injustice becoming more and more subjective.[1]


Procedural justice also plays a very important factor. An individual’s perception of justice or injustice being done depends a lot on how well procedural justice is implemented. An individual even if rightfully punished may have a feeling of injustice if suppose his plaints were quite restricted during the adjudication or he felt that his/her lawyer did not object much. The level to which procedural justice may affect the individual will depend on his/her ‘affect intensity’ factor. The individuals having high affect intensity would generally remain emotionally reactive even if there is high procedural justice but for low affect intensity people, there would be a reduced feeling of injustice.[2] The subjective interpretation of justice is not at the general level but the specific level. At the general level, it is very comprehensive and states that justice is the giving back of what one owes to another. When the concept of justice enters the practical scenario, things change with several theories and different ideologies of individuals. Even great scholars have debated on this issue. When Aristotle understood justice as rationality, Kant described it as a basis for ethics.[3]


Even when the death penalty is considered, a lot depends on the aggravating and mitigating circumstances which are itself subjective in nature. As the death penalty needs to be given in the rarest of the rare cases, courts have emphasized the narrowing down of the aggravating factors and the widening of the mitigating factors. This may not totally wipe out the discretion applied by the courts but narrows down the individuals to be placed on death row.[4] The jury system applied in some countries can be taken to be the greatest subjective element of justice delivery. This has more importance when it is about the offender’s life. In certain countries, the jurors are selected by lots which render some of them if not all with a lack of expertise. They are taken to an unknown environment and asked to decide on a matter quite unusual from their daily lives. This may help in neutrality but what about the validity of the verdict. Jurors don’t even take proper notes and it is expected of them to have an exceptional memory.[5] It could be possible that bringing in another batch to sit as the jury could have changed the verdict. The aggravating and mitigating circumstances could have played differently in the mind of the latter jury.

Even in the Indian scenario, wherein one court with a different bench would oppose the death penalty unconditionally (while quoting the significance of ‘mercy’ from Shakespeare’s ‘The Merchant of Venice’)[6], some other court would also have pointed out how the death penalty is the only remedy in the ‘rarest of the rare cases and that there can be no other alternative to it.[7] The term ‘rarest of the rare’ is again so subjective in nature because it itself is based on the subjective elements of aggravating and mitigating conditions. Even sitting on the same bench, two judges can have differing opinions of whether the case falls under the ‘rarest of the rare category. The ‘rarest of the rare’ doctrine was introduced by the Supreme Court of India in the case of Bachan Singh v. State of Punjab[8], wherein the court had stated that the death penalty should be imposed in such cases that the society whose collective conscience has been extremely shocked would expect the judiciary to give the death sentence ‘even when personally the judges may be desirable to retain the death penalty.[9] It is this possibility of a mismatch between the opinion of the society and that of the judges that make the death penalty more questionable. The confusion is always about the priority of ‘heuristic response’ over ‘systematic response’ or the other way round.

In the US, many have felt that the verdict of the death penalty is actually the subjective approach of the prosecutors. Whether an offender would get a death penalty or not would depend on who was in the opposition, who was the judge and in which judicial district the case was being heard. Certain judicial districts were known to return death penalty sentences while others gave more of it. Even the probability of black offenders who had white victims being sentenced to death was quite high.[10] In the book, ‘12 Angry Men’ the massive relation between the subjectivity of justice delivery and that of the death penalty was beautifully outlined. The film showed how the sure decision of the death penalty of the jury from a majority of 11 to 1 changed to a minority of 0 to 12 when a few more evidence and facts were considered. The reasonings that changed the sentence could come to light only for a single person in the jury and their change of mind pointed out the subjectivity issue. Had it been a jury of 11 with the exclusion of that one person the offender would have surely received the death sentence.[11]


Eyewitness testimonies in death penalty cases is also based on mental subjectivity. In many rape cases, the victims themselves fail to correctly identify the rapist leading to improper guilty verdicts getting decided. The most famous case in the US in this regard was the Ronald Cotton case[12] where innocent Cotton was sentenced to life imprisonment based on a false eyewitness testimony which the victim genuinely believed to be true. Psychologists have pointed out that the eyewitness testimonies used are based on memory which is quite malleable and subject to future suggestions. Very few actually retain the memory at the time of the original event. Most memories get shaped after the actual event occurred.[13] The famous Carlos DeLuna case[14] is the best example to show how discrepancies in identifying the offender by the police and the mental block created of the impossibility of falsity of their decision can send an innocent man to die. Justice in such cases becomes more subjective and arbitrary when the system gives too much importance to the crime than to the offender.[15]

The inconsistency in death penalty judgements shown by the courts was questioned later by the courts themselves. The Supreme Court had changed its approach to the Bachan Singh case in the Ravji Ram Chandra verdict[16]. In the Ravji verdict, the court had stated that to give the death penalty one should only look at the gravity of the crime committed and not the nature of the person who is said to have committed the crime. This is in turn produced a negative impact by disturbing the balance between aggravating and mitigating factors and totally ignoring the mitigators. The judgement finally gave the death sentence which could have been reduced to life imprisonment had the approach not been changed. Later in 2009 in the Santosh Bariyar judgement[17], the Supreme Court clarified its misuse of the ‘rarest of the rare’ doctrine which again brought back the courts on the correct path. After this many other death sentence verdicts were commuted to life imprisonment.[18]

The application of polygraph techniques also brings in a lot of arbitrariness in the ultimate sentence. Although such information cannot be directly used as evidence, it can be highly utilized in obtaining secondary evidence. There are several different techniques involved- like the Control Questions Technique and the Guilty Knowledge Technique which not only conduct the process differently but also produces differences in empirical results. The results may also get contaminated by the fact that the one who is conducting the process also analyses the polygraph. This may cause additional subjective elements present in the analyzer’s mind to disturb the objectiveness of the polygraph. Moreover, the scoring methodology of such complex mind issues may actually result in the wrong pronouncement of guilty verdicts.[19]


The question of whether the death penalty is constitutional or unconstitutional is decided on the grounds of Article 21[20] of the Indian Constitution.[21] It must be noted that Article 21 is itself so subjective that it makes the analysis of this question more arbitrary. The ‘procedure established by law’ needs to be fair, just and unreasonable but the fairness of a procedure is a matter of discretion altogether. The intersection of Articles 14, 19 and 21[22] is a step forward towards a system of due process of law as followed by the US[23] but the concept of ‘subjective satisfaction’ still overpowers the determination of fairness. In Deena v. UOI[24], wherein the death penalty by hanging was contended to be unconstitutional as it was not ‘dignified’ as per Article 21, the court held it to be constitutional as it fell under the ‘just, fair and reasonable’ process with the reasoning that there was no other method which was less painful. The two factors that may seem to challenge this judgement are:

1. This ‘just and reasonable’ element is really vague, broad and discretionary thus allowing for wide interpretations of the same.

2. The reason that there is the no less painful way does not seem to validate ‘hanging’ in a proper way. It is the same as an offender validating ‘murder’ by stating that it was far less painful than ‘murder after rape’.

Sometimes before the death penalty, a person may undergo preventive detention. This element of ‘preventive detention is highly subjective and sometimes puts the person arrested in a compromising situation. In a recent case before the Jammu and Kashmir High Court, Riyaz Ahmed Bhat v. the State of Jammu and Kashmir[25], the court held that the subjective satisfaction of the detaining authority is not to be assessed objectively by the court. Moreover, such detentions are not based on committed offences but on an apprehension of offences that can be committed in the future.[26] Such apprehension-based elements in the justice system can sometimes make it quite arbitrary and lead to the punishment of an innocent person.


It needs to be realized that subjectivity and the use of discretion play a very important role in justice delivery. Although total objectivity without any subjective element would also render the entire process quite robotic but care should be taken not to let discretionary factors totally overpower the objective fact. Psychological behaviour, fixed mindsets and popular response can sometimes lead to actual denial of justice hidden behind the curtains of proper justice delivery. Once a case is closed and shut, no one has the time or energy to look through the case again which he/she believes to have been properly given. It is only after some years when some researcher suddenly finds interest in a particular case, that certain inaccuracies get noticed. Only a person and not a robot can indeed apply good conscience while rendering decisions but it is also true that such conscience is not fixed to the case but the person and is susceptible to change. It is to see that the change is minimal which would help to create precedents in which both the victim as well as the offender will get some stability.

[1] Diane Sivasubramaniam, The Justice Motive: Psychological Research on Perceptions of Justice in Criminal Law, STORE ( May 17, 2021, 4:52 PM),                                                                  

[2] Ramona- Gabriela Paraschiv, The Importance of Procedural Justice in Shaping Individuals’ Perceptions of The Legal System 4(2) Geopolitics, History And Industrial Relations 162, 164-165 (2012).

[3] Klara Helene Stumpf et al., A Conceptual Structure of Justice – Providing a Tool to Analyse Conceptions of Justice 19(5) ETHICAL THEORY AND MORAL PRACTICE 1187, 1189-1190 (2016).

[4] Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today’s Arbitrary and Mandatory Capital Punishment Scheme 6(2) WM. & MARY BILL RTS. J. 345, 355-358 (1998).

[5] Charles A. Thatcher, The Failure of the Jury System 153(417) NAR 246, 246-249 (1891).

[6] State of Orissa v. Kiran Kumar Bedi, (2006) I OLR 262.

[7] Ramnaresh And Ors. v. State of Chhattisgarh, (2012) 4 SCC 257.

[8] Bachan Singh v. State of Punjab (1980) 2 SCC 684.

[9] Kiran Ranganath Kale, Doctrine of “Rarest Of Rare” and Indian Legal System, THE LAW BRIGADE (May 25, 2021, 10:43 AM),

[10] Lincoln Caplan, The Random Horror of the Death Penalty, NEW YORK TIMES (June 4, 2021, 11:54 AM),

[11] Lee Pfeiffer, 12 Angry Men- film by Lumet [1957], BRITTANICA (June 5, 2021, 9:36 PM),

[12] State v. Cotton, 329 N.C. 764, (1990).

[13] Stephen L. Chew, Myth: Eyewitness Testimony is the Best Kind of Evidence, ASSOCIATION FOR PSYCHOLOGICAL SCIENCE (June 6, 2021, 1:19 PM),

[14] DeLuna v. State, 711 S.W. 2d 44, (1986).

[15] Ed Pilkington, The wrong Carlos: How Texas sent an innocent man to his death, THE GUARDIAN (June 7, 2021, 6:34 PM),

[16] Ravji Ram Chandra v. the State of Rajasthan, 1996 SCC (2) 175.

[17] Santosh Kumar Bariyar v. the State of Maharashtra, 2009 SCC (6) 498.

[18] Manoj Mitta, 9 death penalties wrongly imposed: Ex-judges to President, THE TIMES OF INDIA (June 7, 2021, 7:09 PM),

[19] Gershon Ben-Shakhar et al., Trial by Polygraph: Scientific and Juridical Issues in Lie Detection, 4 BEHAV. SCI. & L. 459, 466-468 (1986).

[20] INDIA CONST. art. 21.

[21] Kritarth Pandey, Indian Judiciary on Death Penalty, SSRN (June 8, 2021, 3:07 PM), file:///C:/Users/user/Downloads/SSRN-id2399332.pdf.  

[22] INDIA CONST. art. 14, 19, 21 ; Maneka Gandhi v. UOI, AIR 1978 SC 597.

[23] A.H. Hawaldar, Evolution of Due Process in India, MANUPATRA (June 12, 2021, 12:47 PM),

[24] Deena v. UOI, (1983) 4 SCC 645.

[25] Riyaz Ahmed Bhat v. State of Jammu and Kashmir, 2020 SCC OnLine J&K 507.

[26] State of Maharashtra v. Bhaurao Punjabrao, 2008 (3) SCC 613.

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