Three judges of the Supreme Court, including the Chief Justice of India, have come to the conclusion that Sushil Sharma does not deserve the death penalty for murdering his wife, Naina Sahni, and trying to dispose of her body by burning it in a tandoor. It is no secret that India’s death penalty jurisprudence, at all levels of the judiciary, is in a shambles and the reasoning adopted in Sushil Sharma’s judgment raises very serious concerns about the justice that has been meted out to 22 individuals on the verge of execution after their mercy petitions were rejected by the President (four of them by Pratibha Patil and 18 by Pranab Mukherjee).
While a five-judge Constitution Bench of the Supreme Court is scheduled to hear the pleas of 18 of the 22 individuals only on the issue of delay caused by the State in deciding their mercy petition, the issue that I want to explore in the context of the Sushil Sharma case is the manner in which they were sentenced to death. In terms of the law, not all murders, terrorist acts, rapes and murders, acts of treason, etc attract the death penalty. The “rarest of the rare” doctrine was introduced in Bachan Singh to lend some coherence to instances in which the death penalty might be justified by balancing aggravating and mitigating circumstances. However, the “rarest of the rare” doctrine has evolved into one of the most misunderstood and misapplied doctrines not just in public discourse but even in judicial pronouncements from courts at all levels.
The “rarest of the rare” doctrine is often misunderstood as referring only to the heinousness of the crime. The focus is equally meant to be on the mitigating circumstances of the person including whether it has been decidedly shown that she is beyond reformation.
Reasons for commutation
The Court seems to have placed significant weight on the point that the State had not led any evidence to show that Sushil Sharma was beyond reformation. These are very important moves by the Court as it is a clear attempt to move away from multiple judgments in the past where the focus was only on the brutal nature of the crime. This is an important step in the inevitable course correction that the Supreme Court will have to undertake on the manner in which it examines aggravating and mitigating circumstances in death penalty cases.
By taking the position that the State, while demanding the death penalty, should demonstrate that the individual will revert to such crimes, the Court has brought the focus back on the mitigating circumstances and the appropriate burden on the State. It is this aspect of reformation that was articulated in Bachan Singh that has been ignored most often and the obligation is most certainly on the State to show the impossibility of reformation. It is of course not the position in Bachan Singh that any one factor can trump all others and Courts are meant to balance aggravating and mitigating circumstances. Reformation is an issue that is relevant to all prisoners who appear before the Court irrespective of the nature of the crime, age, sex and social background. If judges want to balance away the interests of reformation in favour of other factors, Courts must be left free to do so. However, there must be an obligation and culture of justification as far as reformation of the death row convict is concerned. As judges seal the fate of the convict, the least they must do is explain the evidence presented before them that led to the conclusion that the convict could not be reformed. If no such evidence is presented before the Court, there must be a presumption of reformation and judges must meet a high threshold of justification if they want to override that presumption. A disingenuous strategy adopted in many judgments confirming the death penalty has been to cite the brutality of the crime as indicative of the impossibility of reformation. To argue that an individual cannot be reformed because of the crime she has committed is a perverse articulation of what was intended in Bachan Singh.
Sushil Sharma has certainly benefited from the substantial weight assigned to reformation as envisaged in Bachan Singh. But the 22 individuals who stand on the verge of execution have not had the benefit of such enquiry into the possibility of their reformation. Apart from highlighting the brutality of the crime, in none of their cases did the State lead any evidence on reformation and unlike in Sushil Sharma’s case, neither did any judge ask the State why it had not presented any such evidence. We must have no illusion that we have brought these 22 individuals extremely close to their death without any court of law in this country having paid adequate attention to the possibility of their reformation.
Almost all of these 22 individuals have spent a very long time in prison and it reflects the lack of humanity in our legal system that we have no mechanism to evaluate the changes they have undergone. The most tragic aspect of death sentences in India is that we often have an image of the prisoner that is frozen in time. It is an image of her when she committed the crime and our moral judgment of the person at that point of time is all that seems to matter. There is no place in our public and legal imagination for the effects of long periods of incarceration. Some of them are the most trusted prisoners in the jails in which they are lodged, some others contribute to the administration of the jail by maintaining records and teaching other prisoners about work they could do in jail, some others have picked up skills and earned degrees while simultaneously having introspected about their time in jail. Of course it is not just about the good things. Incarceration and differing levels of alienation from their families have left many of them extremely mentally vulnerable, displaying signs of severe depression and psychosis. In that sense, these 22 individuals have suffered a double injustice. Neither was the possibility of their reformation explored at the time of sentencing them to death nor is the system interested in evaluating them as individuals as they are today.
It would be unconscionable to hang any of these 22 individuals without considering the issue of reformation meaningfully. Otherwise, it starts to look like there is one standard of justice for people like Sushil Sharma and quite another standard when it comes to Shivu, Jadeswamy, Maganlal, Jafar Ali, Gurmeet Singh, Suresh, Ramji, Perarivalan, Murugan, Santhan, Saibanna, Simon, Madaiah, Gynanaprakasan, Bilavendra, Dharampal, Sonia, Sanjeev, Praveen Kumar, Bhullar, Umesh and Sundar Singh.
(Anup Surendranath is the director of the Death Penalty Research Project at the National Law University, Delhi.)