Why capital punishment must go

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The verdict of death for the bestial gang rape in Delhi last December is based on Supreme Court judgments, which stipulate that capital punishment will be imposed in “the rarest of rare” cases, where the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty” because of the abhorrent nature of the crime, which would include “the manner of the commission of the murder,” for instance, “if it was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner,” or where the victim was “subjected to inhuman acts of torture or cruelty in order to bring about his or her death.”

Dangerous

There are several dangers in a process in which a life is taken because that is what the community wants, as in the Roman amphitheatre, where the mob decided if the defeated gladiator should die. Apart from turning the judiciary into a khap panchayat, how does this august fraternity commune with the community, or divine that its conscience wants blood? In the 21st century, flooded as it is with 24-hour television and social media on tap, outrage can be manufactured, reality distorted. Even when, as after the Delhi crime, the revulsion was real and widespread, how does the judiciary determine that those who were shocked would only recover with the deaths of those who had shocked them? Diplomats, who must assess the mood of the country they are posted in, take it as given that the media only partially reflects it, since the strident few drown out the diffident majority. An Embassy spreads its tentacles wide, speaking to and gauging the mood of people in different sectors, levels and locations, to understand what they really want. No judge can do this. What a judge takes as the collective conscience of the community can only be the slant carried by the media. To base decisions on life and death on this is injudicious.

Secondly, what is the community whose conscience the judge must tap into and channel into a pronouncement of death? For a sessions judge, it will presumably be that of the local community. If that judgment is overturned on appeal, it can either mean that the judge had misread that conscience, or that the High Court felt that the conscience of the larger community of the State did not want blood. If the Supreme Court reinstated the death sentence, this would presumably mean that the national conscience was at one with the local, but that of the State concerned was out of step with both. Which is the segment of the community to whose conscience judges must defer? Logically, it should be the one most affected, which would imply that no sentence of death from a sessions court should be overturned. How does a judge in the State or Central capital determine that the local community had not been galvanised into bloodlust?

But what would happen, for instance, in the cases that should shortly come to trial for the murders in the recent communal violence in U.P.? The most appalling cruelty is committed during communal riots. One of the criteria invoked in the Delhi judgment to justify the death sentence, the barbaric and revolting nature of the murder, would apply. In these cases, however there would be no collective conscience to consult, since the community is split in two. Each half would demand the death sentence for the murderers from the other community, but mourn its own murderers as martyrs if they were hanged. In these cases, therefore, where one of the criteria laid down by the Supreme Court conflicts with the other, which will prevail?

Nor should we forget that, while the use of torture to bring about death is rare in crimes committed by individuals, it is routinely practised by the army and the paramilitary in States wracked by political violence. Unaccounted numbers of Kashmiris disappeared into the maws of Papa-II, the infamous torture chamber run by the paramilitary in Srinagar. Those bodies that were recovered bore marks of the most terrible torture. Very large numbers disappeared forever. To say that the collective conscience of the Kashmiri Muslim community is merely shocked would be an insult. It has lived with rage, pain and a searing sense of injustice for two decades; its tormenters have escaped with impunity, because the collective conscience of the rest of the country has not even been stirred.

Across our subcontinent, in Manipur, similar cases abound, including that of Thangjam Manorama, taken from her home in Imphal late at night by a unit of the Assam Rifles, led by two Majors, tortured with a knife, forced into her genitals in the presence of her family, tortured even more brutally later, raped and shot. Her body was not received by dignitaries, it was found lying in a ditch. There have been many other killings like this, but this one, like the gang rape case in Delhi, set off a storm, leading to a “naked protest” by Manipuri women in front of the paramilitary camp. If any crime matched both the criteria invoked in the Delhi judgment, the bestiality of the murder and the collective indignation it produced, this one did. However, the officers and men responsible are immune because the army’s Court of Enquiry held they were all innocent.

Justice not blind

These communities, and the tribals in the naxal belt, will argue bitterly that justice is not blind; it sees who you are and where you come from and, in its scales, the collective conscience of the community only registers when it has political weight. If you are a Kashmiri or a Manipuri, your shock is gossamer.

One of the crimes that the Supreme Court has laid down as likely to shock the collective conscience of the community is a “murder committed in the course of betrayal of the motherland.” It appears murders committed in its ostensible defence do not shock. Patriotism is the last refuge of the serial torturer. If he walks free, though, why should others hang?

There is a further danger. Because public opinion is manipulated with modern technology, the outrage which the judiciary will interpret as an indignation that must be assuaged with blood can only be provoked by the technically adept, or those with the money to influence the media. The men sentenced to death in Delhi, and those hanged over the last year, were mostly from the poorest and most vulnerable sections of society. Neither they nor their families had the financial or technical means to harness the media or the social media in their defence. There is, therefore, an inevitable class bias built into a process where a judge pronounces the verdict of death on the basis of a public outpouring of rage, which the accused have no means of contesting.

The brutality that brings their crimes into the ambit of the rarest of rare is bred into their lives. They have gone to bed hungry as children, suffered illnesses without medicine, defecated in the open, been savaged on the whims of adults, treated like dirt. Compassion has never touched them. Life has beaten sensitivity out of them. Men forced to live like brutes will kill like brutes. When these men, society’s victims, find a victim, they take a lifetime’s frustrations out on him or her. Their murders and rapes are unlikely to be refined. Their brutality might appal a court and nauseate the middle class, by whose standards they are judged, but it is a product of what the community has made of them. This is what should shock the collective conscience of the community.

Lastly, and most troublingly, if a man is to be hanged because the judge feels that the collective conscience is so shocked that it will expect him to inflict the death penalty, can a trial be fair, with the accused presumed to be innocent until he is proven guilty? If, before the trial starts, society has already made up its mind, in the judge’s view, that it will only be satisfied with the death penalty, it has also determined who the guilty are. It is hard to believe that a judge can hear a case entirely on merits, and take popular sentiment into account only at the verdict. On the contrary, if it is now the law that a judge must impose the death penalty in cases where he has concluded that the community demands it, he would be shirking his duty if he were to absolve the men on trial, denying the community, whose servant he is, the satisfaction of a human sacrifice.

When the Supreme Court decreed that the death penalty should be imposed only in the rarest of rare cases, it tried, humanely and honourably, to prevent a rash of judicial killings, but the criteria it has laid down inherently lead to decisions that are, in every sense, fatally subjective. The road to the gallows might be paved with its good intentions, but on matters of life and death, the law cannot be so cruelly flawed.

Tarquin, Auden famously wrote, was ravished by his post-coital sadness. Is the “community” in India ever choked by a post-garroting remorse? Conscience is the uncomfortable reminder that we have done something wrong.

In a nation that aspires to be a modern democracy and claims to be a modern incarnation of the most ancient living civilisation, the death penalty is a barbaric anomaly. It is time the collective conscience of the community repudiated it.

(Satyabrata Pal is a Member of the National Human Rights Commission. These views are personal)

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Measure for unconstitutional measure

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K PARASARAN IN THE HINDU

The ordinance seeking to amend the Representation of the People Act interferes with the exercise of judicial power

Bill LXII of 2013, namely, The Representation of the People (Second Amendment and Validation) Bill, 2013 is pending before Parliament. I examine here whether the Bill, when passed as an Act or its provisions promulgated as an Ordinance, will be unconstitutional or not.

Declared principle

The constitutional principle applicable in a situation analogous to this has already been declared five decades ago in the then sensational case of K.M. Nanavati vs State of Bombay (AIR 1961 SC 112). Mr. Nanavati was convicted for an offence under Section 302 of the Indian Penal Code. He held a very high position in the Navy and his services were considered necessary during the pendency of his appeal. In the bona fide exercise of power under Article 161 of the Constitution of India, the Governor of Bombay chose “[…] to suspend the sentence passed by the High Court […] until the appeal intended to be filed by him in the Supreme Court against the conviction and sentence is disposed of […]”

Mr. Nanavati preferred a Special Leave Petition before the Supreme Court. The Supreme Court ruled by a majority of four to one that both Article 142 and Article 161 being provisions in the Constitution should be harmoniously interpreted.

“[…] the order of the Governor granting suspension of the sentence could only operate until the matter became sub-judice in this Court on the filing of the petition for special leave to appeal. After the filing of such a petition, this court was seized of the case, which would be dealt with in accordance with law. It would be for this court […] to pass such orders, as it thinks fit, as to whether the petitioner should be granted bail or surrender to his sentence or to pass such other or further orders as this Court might deem fit in all the circumstances of the case.”

Therefore, the exercise of the ordinance-making power by the President under Article 123 of the Constitution of India in the present case will be unconstitutional. The proposed amendment to Section 8(4) of the Representation of People Act, 1951, by way of Clause 2 of the Bill, provides that the disqualification of an MP/MLA shall not take effect “if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court.”

The proposed amendment to the proviso to Section 8(4) reads:

“Provided that after the date of conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of the Parliament or the Legislature of a State, as the case may be.”

No doubt the proviso will operate only when an appeal or application for revision is filed in respect of such conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court. Subject to what conditions the stay will operate is a matter for the court to decide and the executive/legislature has no jurisdiction in the matter. It is exclusively for the court to decide and by way of a legislative device, the order of the court cannot be modified, varied, or altered as to what restriction will operate on the right of the member consequent on the order of court staying the conviction and/or the sentence. Moreover, in the event of a stay granted by the court without any conditions, it will operate unconditionally.

The aforesaid provision interferes with the power of the court to pass appropriate orders pending the appeal. Though there is no similar provision like Article 142 in respect of the High Courts, the position in law will be the same even in cases of appeals to the High Courts, as such exercise of power by the legislature would interfere with the judicial powers of the High Courts. Even a constitutional amendment will offend the basic feature of the Constitution viz., interfering with the exercise of judicial power.

Suspension of sentence

The exercise of judicial power in suspending a sentence/quashing by appellate courts is provided under Section 389 and 482 of the Criminal Procedure Code respectively. Therefore, an executive order or an ordinance or even an enactment to such effect will amount to interfering with the exercise of judicial power and, hence, will be unconstitutional.

In Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 1590), under the then existing practice, a single Judge of the Hon’ble Supreme Court exercised powers during vacation of the court. Hon’ble Mr. Justice V.R. Krishna Iyer passed interim orders pending Mrs. Indira Gandhi’s appeal against the order setting aside her election. The learned judge beautifully crafted the interim order to point out that she had two capacities, one as the Prime Minister and another as a Member of Parliament. He ruled that —

“(iii) The appellant-petitioner [as] Lok Sabha member, will be entitled to sign the Register kept in the House for that purpose and attend the Sessions of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha.

(iv) Independently of the restrictions under para III on her Membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise take part in the proceedings of either House of Parliament or a joint sitting of the House (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88, etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order.”

It may be noted that the court did not permit her as a Member of Parliament to even participate in the proceedings. As a member, she could only sign the register kept in the House and attend the session. The Bill and the Ordinance, however, provide for disqualified members to also take part in proceedings pending the appeal.

In a particular situation where peculiar facts demand that in the interest of the nation, if the court is of the opinion that a disqualified member should be permitted to vote on a particular motion in the House, it may permit him/her to vote. This power of the court is also interfered with by the proposed amendment. There may be special circumstances like the nature of the offences or the peculiar facts of the case or the nature of the subject matter which may have to be voted in Parliament where the court may permit voting, akin to how a convicted person undergoing imprisonment may occasionally be released on parole for any good, compelling reasons.

That the court passes similar orders pending appeal in election matters is not a good reason to support the Ordinance/Act as that is the exercise of judicial power pending appeal which cannot be done by exercise of executive/legislative power.

The Bill, if enacted as law, and/or the Ordinance will also be violative of Article 14 of the Constitution as being arbitrary, discriminatory and irrational.

(The author is currently a Member of Parliament, Rajya Sabha, and former Attorney General of India)