A Judgement

VERDICT ON THE CASE OF THE SPELUNCEAN EXPLORERS

Projwaladitya Gopalkrishna, J.

This unfortunate case is one of those great cases which have raised a lot of great debates regarding an interesting, yet fundamental question that has been asked since the beginning of human civilization, for which a single, clear and tautological answer has, so far, not been given. I have come to such a conclusion because of two reasons- firstly; the nature of the act committed by the defendants and secondly, because of the different verdicts passed by my brother judges and the reasons and principles they have cited for their decisions. Now, it is my turn, not only to decide the fate of the defendants but also to express my view not only on the case itself, but also on that hidden but fundamental question upon which my brother judges have been debating about - what is the nature and purpose of law?

Before I proceed, I would like to tell you that not only my verdict will be quite informal in structure, but that it would also be based two opposite viewpoints, which might be confusing, but in the end they will be reconciled by my judgement.

Now, as my brother judge Truepenny has already mentioned the summary of the case in his verdict therefore I do not believe that I should recite it again.

Now, I shall start with my personal view on this case. I personally believe that the defendants are not guilty for the act they have committed, for several reasons. Firstly, as a result of their isolation, the defendant and the victim (Mr. Whetmore) were beyond the jurisdiction of our positive laws, both physically and legally. They were in essence free from the laws of our society and they were in a state of nature. Therefore, these individuals in effect were members of their own society, which was free from the Commonwealth.
Secondly, they were in such a condition, where they did not have any food left and they (even the rescue team) did not know when they would be rescued, due to which they, in order to survive in this state of nature, they had to kill someone among themselves and consume his corpse. Otherwise, all of them would have died. Although I personally condemn cannibalism, yet, considering the circumstances, they had no other option. In order to ensure that nobody was either arbitrarily or maliciously selected, they (the defendants and the victim) came into a logical agreement, wherein one would lose his life on the basis of the throw of a dice. The dice went against the victim’s favour, due to which he had to be killed and eaten by his fellow explorers. Although he had dithered over whether he should gamble on his life or not, in the end it should be noted that the victim had voluntary given up his life for the survival of his fellow explorers on the basis of the contract form by the members of this “society” that was isolated in the cavern.
Therefore, from this point, it can be inferred that I believe that when a group of people are beyond the control of the laws of civilization, they are free to form themselves into a new society and create their own laws, so long as these laws are reasonable at that place and time and that they are created within the framework of certain natural principles that have existed before the arrival of mankind.

Now that I have expressed my personal view on this, I would like to speak as an agent of the law on this matter. As a judge, although I personally exonerate the defendants for murder, yet I should condemn them on the basis of the N.C.S.A. (N.S.) Sec. 12-A. As an agent of the law, I believe that I should implement the letter of the law(the positive law of our nation),regardless of the circumstances. Since they were in a cave that is within the boundaries of our Commonwealth, they were still governed by our laws and statutes. I believe that regardless of the location, the laws of our Commonwealth prevail in every part of the Commonwealth, including the deepest and most isolated of caverns.
Secondly, I condemn them, because if I pardoned them, then I’m going against the principles that I (as an agent of the law) believe in- that every one is equal in the eyes of law; that all laws are applicable to everyone for everyone; and that no murder, regardless of the circumstances, shall go unpunished. If I go against this principle, then I am setting a bad precedent that would allow such acts that will be committed in the future to be justified with my judgement serving as the precedent. I believe that this Section of the NCSA is created on a reasonable principle, i.e, to deter anyone from committing murder, regardless of the circumstances in which it is committed, and I believe that I would be going against this principle if I exonerate them.
Finally, the contract between the defendants and the victim was, as per our statutes, illegal (and it doesn’t require a deep knowledge about contract law to explain this) and regardless of the victim’s consent, they were not justified in killing him.
Therefore, as an agent of the law, I believe that the defendants have disobeyed the law and therefore, they are guilty under Section 12 of the NCSA.

Now I believe that my two viewpoints (one as a citizen, the other as an agent of the law) have been declared by me, are in conflict with each other, which is confusing. In order to resolve the confusion I would like to pass the following judgements, the first one considering the fate of the defendants and the second one considering the N.C.S.A. (N.S.) Sec-12.

(I) I declare that the defendants are guilty of murder as per Sec 12 of the N.C.S.A. (N.S.) but their sentence should be commuted to sentence of eight years imprisonment. They should also pay a compensation of 6,000 frelars each to Mr. Whitmore’s next of kin. I have come to this decision after taking the above two conclusions into consideration. The defendants had committed murder due to which they are guilty under our positive law, but considering the circumstances they were in (which I have pointed out in my personal viewpoint), their sentences have been commuted. This insures that the principles of positive and natural law have not been violated, despite the conflict between them.

Since I have commuted the sentence, I have therefore gone against the punishment proscribed in the statute- that the minimum sentence should be death. I would like to say that I have ensured that they have been declared guilty of murder but I have also ensured that they will not receive an unnecessarily harsh punishment because of the circumstances in which they committed it. It should be noted that some acts of murder are not committed with malicious motives and that they sometimes occur out of necessity, this case being one of them. Laws like NCSA are created in order to deter people from resorting to murder for any reason, whether rational or irrational. But the type of punishment for various murders depends on several factors, the major ones being the circumstances it was committed in, the reason for committing the act of the and the past history of the accused .It should be noted that the defendants have not committed any criminal acts before this; that they have committed this act in the circumstances that have been mentioned before, which were beyond their control; and the reason for doing act was for their survival. I haven’t found any malicious intention among the defendants and it should also be noted that they have already pleaded guilty, which merits a reduction in the punishment to be given. The legislators, while framing the NSCA did not taken these points into consideration, due to which I consider Sec.-12 to be flawed due to which I declare the following rectification of the Section –

(II) The minimum punishment for murder as stated in Sec.12 of the NCSA should be reduced to five years imprisonment.

On the question which was being debated – what is the nature of law and purpose of law- I can only say that my judgement itself ,is in a way, an answer. It has taken two opposite viewpoints into consideration and the judgement is in a way, a reconciliation of the conflict between these two viewpoints. In the first viewpoint, I have concurred with my brother judge Foster that the defendants, being independent of society at that place and time, had committed an act that was not guilty according to their law that was formed by an agreement among themselves and the victim (which he considered was reasonable), due to which they are not guilty under the statute. Here, it appears that I believe that law is a product of social contracts and also that law is to be formed within the framework of reasoning, which is a natural law principle.
However, in the second viewpoint, I concur with the positive law view point which has been argued by my brother judge Keen, where I believe that the letter of the law should be obeyed regardless of the circumstances.

In the end, I gave a balanced judgement where the defendants have been punished as per the statute concerned (which I believe is a reasonable piece of legislation) but their sentences were commuted because of the circumstances in which they committed ( that is the absence of essential food supplies, which was threatening the survival of those trapped in the cave) this act, which I feel does not merit a death sentence. It is also balanced, because I have reconciled the principles of natural law and social contract with those of positivist principles regarding law. My understanding of the law is, I assume, a synthesis of several theories. I believe that the law is meant to ensure stability, peace and security so that man can develop his full potential. Laws are also meant to deter criminal and anti-social activities in order provide this stability. I also believe that I have followed realist approach by having this judgement and my review of the NCSA to be based upon my moral and legal views and also by.

My judgement shows that there are several viewpoints regarding the nature of law and that a single, objective answer can never be found, though a general consensus about this exists.





Projwaladitya Gopalkrishna
I.D. No.- 1743
First Year B.A. LLB (Hons)
National Law School of India University.