By Shreya Mohapatra:
Famous 18th century poet and novelist Victor Hugo had once said, “What does the law say? Don’t kill. How does the law say it? By killing.”
The fact that even three centuries down the line this still holds relevance in 56 countries of the world is indeed surprising. The Noida serial murder in 2006 involved the horrific murders of 19 children and women belonging to poor families in Nithari, Uttar Pradesh. It not only shocked the collective conscience of the country but also sparked a debate on capital punishment in India. The debate was renewed after Yakub Memon’s execution last year.
Of late, a number of questions have been playing on the minds of citizens. What kind of crimes result in death penalty in India? What did the Supreme Court rule while upholding the constitutional validity of death penalty in India? What would constitute a ‘rarest of rare’ case and how effective and impartial is the ‘rarest of rare’ doctrine really? Most importantly, should capital punishment be completely abolished in the country or should we listen to the Law Commission Report which recommends death penalty to be retained only in cases of terror-related offences.
Through the course of this article, we shall first discuss the technical aspects of death penalty and then, move on to the much debated existence of capital punishment in Indian democracy. In the context of past executions and the 262nd Law Commission report.
Death penalty can be given only in the “rarest of rare” cases which include grave offences such as murder, rape with injuries that may cause death of the victim, waging war against the State and terror-related offences. There are similar provisions for capital punishment under the Arms Act, Narcotic Drugs and Psychotropic Substances Act, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act, the Navy Act and the now-repealed The Prevention of Terrorism Act and The Terrorist and Disruptive Activities Act for certain serious offences.
The principles that determine what would constitute a ‘rarest of rare’ case were laid down in the landmark Supreme Court judgement of Bachan Singh vs. State of Punjab (1980). Bachan Singh had formulated a list of broad guidelines and unequivocally stated that death penalty should be rendered only in those circumstances where the question of life imprisonment seems “unquestionably foreclosed.”
This implied that the court, based on its own discretion, would determine if the possibility of giving a punishment lesser than death penalty existed in a particular case. It was this power of discretion that widened the scope for bias and subjectivity. The doctrine was inserted so that the irreversible sentence of death could be awarded only in certain, specific cases and not arbitrarily guided by the whims and fancies of the court.
But shockingly, from 2000 to 2015, 1,617 people were sentenced to death by trial courts in India which often award capital punishment under pressure to “act tough.” In fact, about two decades ago, the police on numerous TV programmes referred to the low rate of conviction in TADA cases, ignorant of the fact that a majority of the accused languish as under trials for years. The problem lies in the appalling level of investigation of crimes and the corruption in the investigation process. Unfortunately, choosing public perception over criminal justice, the judiciary began dismantling the criminal law protection of the accused. The agenda of the judiciary was guided more by the portrayal of the system in the media than criminal jurisprudence.
Muslims, Dalits and Adivasis constitute 38.8% of the population but they make up an astounding 53% of the under trials in jails. Isn’t it ironic? In the USA, blacks who killed whites were thrice more likely to be given the death penalty as compared to whites who killed blacks. In India, too, 75% of the 373 death row convicts belong to backward classes and minorities, 75% are economically vulnerable and 93% of those sentenced for terror crimes are minorities and Dalits. This was found in a recent survey conducted by National Law University, Delhi and the Law Commission.
The Supreme Court in the Bachan Singh vs. State of Punjab case also stated the principle of aggravating and mitigating circumstances wherein a balance sheet would be prepared to primarily gauge if any punishment lesser than capital punishment could be awarded and if such circumstances existed in the crime which would leave the Court with no alternative but to impose death penalty even after weighing out all mitigating circumstances. In Raghubir Singh vs. State of Haryana (1973) which involved the murder of a woman by poisoning, Justice Krishna Iyer commuted the death sentence to life imprisonment by drawing up a balance sheet of aggravating and mitigating circumstances. The aggravating circumstances included a treacherous and planned murder while the mitigating circumstances included the fact that the appellant was 26 years old, married, had been pressurised by the deceased to marry her and was on death row for 24 months.
Despite the Supreme Court ruling that mitigating factors are crucial in deciding the quantum of punishment, it was later seen that death penalty was given usually based on the nature of the crime and the role of the offender in the crime. Mitigating factors such as the possibility of reformation in the future or the background of the offender were seldom considered.
The Constitutional validity of the death sentence was upheld by the Supreme Court of India in Jagmohan Singh vs. State of UP (1973), Rajendra Prasad vs. State of UP (1979) and finally in Bachan Singh vs. State of Punjab (1980). The Court held that Article 21 of the Indian Constitution guarantees freedom to life and liberty to all persons of which a person can be deprived only according to a procedure established by law. Thus, if capital punishment in a particular case was fair and valid, it could be awarded to a convict after the Court cited special reasons for the same.
There have also been several instances in the past when similar crimes have invited different punishments. In Major R.S. Budhwar v. Union of India, the Court pointed out that although two murders were committed by subordinate army personnel who acted on the orders of their superior officers, the accused surrendered within two days of the commission of the offence and also made confessions that helped bring the superior officers to book. However, in Shankar vs. State of Tamil Nadu, the confessions made by the accused although helped solve the crime, did not act as a mitigating factor in commuting death sentence.
The possibility of an innocent person being hanged is not merely theoretical. In the Rajiv Gandhi case, none of the 26 accused were found to be guilty of any of the offences that they were charged with under TADA. Only seven were accused of offences under Section 302 out of which four were sentenced to death. Moreover, TADA allowed confessions made to a police officer to be admissible in evidence. Owing to the strict bail provisions, the remaining accused who ideally should have been imprisoned for not more than 2 years spent over 8 years in jail. Judge K.T. Thomas sought a review of the judgment he had pronounced in 1999 stating that the prisoners had already served 22 years in prison and a death penalty would amount to double punishment.
Ex-Chief Justice of India Y.V. Chandrachud created ripples in the judicial system when he claimed that Kehar Singh’s (accused of inciting assassins of Indira Gandhi) hanging was a mistake.
An argument always made in favour of death penalty is that it serves as a deterrent. However, contrary to common perception, it is not so. Death penalty takes away the chance to reform the prisoner. In fact, after the death penalty was introduced in the 1950s, the number of murders also increased, thus, trumping the argument mentioned above.
A report by the National Law University, Delhi of 400 convicts revealed some astounding facts. A majority of death-row were first time offenders, direct evidence was missing in most cases; confessions made to a police officer many of which were extracted through torture were admissible in Courts as evidence, death row convicts receive poor legal assistance and a majority spend 10-20 years before their mercy petitions are rejected.
The NLU’s project team that conducted the survey observed that not even a single death row convict claimed to be heard. Meetings with defence lawyers are often for very short durations. The accused can barely afford to pay Rs. 100-200 per appearance. The lawyers, as a result, lose interest in building a strong case for the accused.
In the Nithari case, too, similar errors were noted. The apex Court refused to consider the fact that Surinder Koli was convicted on the basis of his own confession made to a Magistrate which he claimed was extracted through torture. Moreover, the confessions were recorded in English, a language he did not understand. Vrinda Grover, a senior lawyer in the Supreme Court stated in an interview that Justice Katju in 2011 had dismissed the appeal of Surinder Koli accusing him of being a serial killer despite the fact that no trial court had concluded that he had killed all the people.
Eminent jurist V.R. Krishna Iyer, in 1978, aptly remarked in an address to the International Conference Against Death Sentence in Stockholm: “The death penalty laws’ wrathful majesty in blood-shot equality deals the fatal blow on the poor not the rich, the pariah not the Brahmin, the black not the white, the underdog not the top dog, the dissenter not the conformist.” “The law,” he added, “barks at all but bites only the poor, the powerless, the illiterate, and the ignorant.”
Errors and inconsistencies can be noted in many past executions, too, one of the most noted ones being that of Afzal Guru and Yakub Memon.
Afzal Guru was hanged in secret without being granted an opportunity to meet his family. The Supreme Court, taking note of this, ruled that a formal communication must be made to the convict, the family and the local legal aid centre 14 days prior to execution.
Yakub Memon’s execution added renewed force to the death penalty debate. Yakub Memon had offered proof of Pakistan’s involvement in the 1993 bombings, something that India would have probably struggled to obtain. What is surprising is how this was not considered a mitigating factor. While the prosecution claims that he was arrested in Old Delhi, Memon claimed throughout that he was picked up at Kathmandu. Indeed, what the truth is would perhaps never be known. However, Memon’s case certainly highlighted the inconsistencies of the judicial process. Justice Joseph had pointed out a serious procedural violation as all judges who had heard Memon’s review petition, including him, were not included in the curative process.
Yes, Memon was guilty and cannot be absolved of crime but some questions must be pondered over. The President dismissed Memon’s clemency petition but was B Raman’s disclosure of the fact that Memon was schizophrenic given consideration by the President? Memon had spent 22 years in jail without a single parole. Were there any signs of reformation? If yes, was the Court right in sending a man to the gallows solely for the purpose of retribution? Why was Memon refused the chance to challenge the rejection of his mercy petition in Court? Was he allowed to read the judgments of July 29 and July 30? Why was Memon denied the right to file a review against the July 29 and July 30 judgments under Article 137? When the verdict was a final ‘no’, shouldn’t Memon have been given two more weeks to “reconcile with his fate“?
In other words, was Memon worth hanging?
In 1967, the 35th Law Commission had adopted a retentionist stand. However, the 262nd Law Commission Report reversed its stand pushing for an abolition of capital punishment except in cases of terrorism and ‘waging war’ which is a welcome move, although, the reason provided for excluding terror seems flimsy. The criminal justice system is currently fraught with custodial torture, corruption and ineffective legal representation, clearly recognised by the Law Commission.
As the clamour for capital punishment grows, India must take a progressive stand. The purpose of judicial legislation cannot be retribution but only reformation. Irrespective of the heinousness of the crime, the rights of an accused cannot be trampled upon. The criminal justice system does not rest on the principle of vengeance and retribution. If this were the case, the guardian of people’s rights would have only been an engine of oppression and suppression. The uncertainty associated with the fate of death row convicts is punishment in itself.
The popular mood of the country will probably never allow the government to take an abolitionist stand, at least not in the near future. But it is the job of the state to recognise that even after 69 years of independence, the police, judiciary and media, too, still seem to be dominated by people from privileged quarters.
It has been rightly said, “The Courts say ‘hang him’ but is the death sentence only for the marginalised?”