Sukumar Muralidharan, Sept 7, 2011
The death penalty has forced its way into the political agenda after a number of mercy petitions were turned down by the President. Among the many now facing the imminence of death by hanging are those convicted in the Rajiv Gandhi assassination of 1991, a 1993 bomb attack on a Youth Congress leader which killed numerous innocent bystanders, and the armed assault on Parliament in 2001.
As with all issues today, there is a serious danger that the debate over the death penalty will be hijacked by loud and uninformed commentary on the TV news channels. Illustratively, in the course of a widely-viewed English news channel’s studio-based discussion on September 3, a member of the audience expressed his dismay that criminals guilty of the most heinous acts were enjoying the hospitality of the Indian state for indefinite lengths of time. A panelist on the programme, the Kashmiri academic Syed Abdur Rahman Geelani, speaking from the experience of a year spent on death row in the Parliament attack case, interjected to protest that an Indian prison – especially the parts reserved for death convicts – is a veritable hell on earth, which often has its inmates wishing fervently for death as a final release.
This was the cue for the programme anchor to introduce, without a hint of irony, the theme of “deliverance by death”. Considering the sheer inhumanity of prison conditions, especially on death row, would not a swift execution be the more compassionate option?
At no point in the debate did key points about the death penalty come up for discussion: its finality and irreversibility, the fallibility of the judicial system that administers it, and its inefficacy as a deterrent against violent crime. Geelani was allowed on a few occasions to argue that Mohammad Afzal Guru, the sole convict in the Parliament attack case, had not been afforded a fair trial and that in fact, the Delhi High Court had held the prosecution guilty of fabricating evidence against him. But these were narrow questions easily suppressed by two compelling arguments deployed by the other side: the Indian Constitution and the criminal law written under it mandated the death penalty in certain cases; and the ends of justice for those who suffered terrible atrocities, would only be met by putting the perpetrators to death.
The question of retribution has a moral dimension. The Supreme Court verdict in the Bachan Singh case of 1980 is still cited as the authoritative ruling on the constitutional validity of the death penalty. In his minority judgment, which dissented on virtually all the central questions, P.N. Bhagwati, later to be the Chief Justice of India, observed that retribution has no moral basis in law. Modern penal theory, he said, discounts it as a motive for determining the nature and quantum of punishment in particular cases.
The only two rationales that survive then are prevention and reform, both of which are objectives better served by lesser sentences.
The other issue needs careful attention: is the Indian Constitution fixed and immutable or is it a live, evolving body of doctrine that reflects the changing needs and aspirations of the Indian people? The Constitution defends the right to life and liberty and lays down the norm that no individual can be deprived of either, except under the process of the law. How sound then is the process of the law as applicable in India or for the matter, anywhere?
In a recent Amnesty International report on the theme of the death penalty, eloquently titledLethal Lottery, the legal scholar and human rights campaigner Bikramjeet Batra has laid out much of the grounds on which reasonable conclusions could be arrived at.(1)
V.R. Krishna Aiyar, as a judge of the Supreme Court, had posed the fundamental moral dilemma as far back as 1977: “It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it”. In an earlier pronouncement, he had deplored the fact that it was left to “ad hoc forensic impressionism to decide for life or for death”.
In his dissent in the Bachan Singh case, Justice Bhagwati revisited this theme of ad hoc determinations being the norm. The Criminal Procedure Code, as revised in 1973, had recognised the death penalty as an exceptional form of punishment, requiring that convincing reasons be specified every time it was imposed. Yet, as Justice Bhagwati observed: “The views of judges as to what may be regarded as special reasons are bound to differ … depending upon .. value system and social philosophy, with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.
Despite the judicial orthodoxy handed down by the Supreme Court majority in the Bachan Singh matter, the norm that capital punishment should be imposed only in the “rarest of rare” cases, has been variously interpreted.
The last person to be executed under Indian law was Dhananjay Chatterjee, who spent thirteen years on death row before being sent to the gallows in August 2004. As noted in Lethal Lottery, three days after his execution, an almost identical case of rape and murder involving a minor was heard on appeal by the Supreme Court. The crime committed by the accused, Rahul, alias Raosahab, was on the face of things, even more heinous than Chatterjee’s. Yet the Supreme Court which had termed Chatterjee a menace to be eliminated for the good of society, held otherwise for Rahul, commuting his death sentence to one of life imprisonment.
In December 2006, a bench of Justices S.B. Sinha and Dalveer Bhandari, in hearing an appeal against a capital conviction, observed that “different criteria have been adopted by different benches of this Court, although the offences are similar in nature”. Almost admitting to its helplessness and frustration, the Court declared while commuting the sentence to one of life imprisonment: “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do?”
The Supreme Court has meanwhile added other grounds on which the death penalty would be warranted, such as a collective shock to the national conscience. Despite the infirm evidence and his very remote culpability in the crime, if any, Mohammad Afzal Guru was sentenced to death under this rather vague and flexible criterion.
Human thinking evolves and the law has necessarily to reflect these changes. Y.V. Chandrachud, who was Chief Justice of India and part of the Supreme Court majority which upheld the death penalty in the Bachan Singh case, came to the realisation after retirement, that the “death penalty has served no purpose” and that “neither logic nor experience would justify its continuance on the statute book”. Yet, the debate on the death penalty has since failed to engage the attention of India’s best legal minds in the manner that judges of the eminence of Krishna Aiyar, Bhagwati, O. Chinnappa Reddy and D.A. Desai, grappled with its legal and ethical dimensions all through the 1970s.
Article 5 of the Universal Declaration of Human Rights lays down a clear norm: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As a signatory to the declaration, the Indian State must now frontally address how far it is in compliance with this clause. The reality simply is that there is no humane and compassionate means of administering the death penalty. Keeping a person in a state of limbo between life and death for years together is no option. Neither is it an option that the Indian State should, to meet the demands of a “collective conscience” that is shocked by certain crimes, short-circuit the process of law and expedite the execution of the death penalty.
Basic morality indicates that the choice in any such situation should be for life rather than death.
PRINCIPAL REFERENCE: Amnesty International India and Peoples’ Union for Civil Liberties (Tamil Nadu and Puducherry), Lethal Lottery: A Study of Supreme Court Judgments on the Death Penalty in India, 1950-2006, May 2008, available at: http://www.amnesty.org/en/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf