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There is confusion over the courts’ differing views on death penalty. Mathematical consistency in sentencing is difficult because no two murders are identical. Allowance has also to be made for the judges’ background, beliefs, social philosophy and value system. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency
Beant Singh Bedi in THE TRIBUNE CHANDIGARH
Capital punishment is a highly controversial area of criminal jurisprudence. It has divided the world into two camps: Abolitionists and Retentionists. Both can claim among them eminent thinkers, criminologists, theologists, jurists, judges and law enforcement officials. The chief arguments of the Abolitionists are:
- Death penalty is irreversible. It can be — and has been — inflicted upon innocent people. But there is no convincing evidence that death penalty serves any penalogical purpose.
- Its deterrent effect remains unproven.
- Retribution in the sense of vengeance is outmoded as acceptable end of punishment.
- Imposition of death penalty nullifies the purpose of reformation and rehabilitation of the criminal, which is the primary purpose of punishment.
- Execution by whatever means is a cruel inhuman and degrading punishment.
The Retentionists argue that a murderer who takes the life of another forfeits his right to his own life. They emphasise the deterrent and retributive aspect of death sentence by arguing that the civilised society must express its revulsion against heinous crimes like murder. True, there have been instances of those persons who, after conviction and execution of murder, were discovered to be innocent. But this, according to the Retentionists, is not a reason for abolition of death penalty but an argument for reform of judicial system and sentencing procedure.
The deterrent value of death penalty has been judicially recognised in a number of cases. In Paras Ram (1973), where a superstitious father had sacrificed his four-year-old innocent son, the Supreme Court while upholding the death sentence inter alia observed that when the crime is of primitive horror and its manifestation is in the form of inhuman and criminal violence, deterrence through court sentence must perforce operate through culprit coming before the court. This view has been reiterated in a number of cases.
The Law Commission of India, it its 35th Report, has vouched for the deterrent effect of capital punishment. However, whether or not death penalty acts as a deterrent may not be statistically proved either way because statistics as to how many potentially murderers were deterred from committing murder but for existence of capital punishment for murder are difficult, if not altogether impossible, to conclude.
The Indian Penal Code (1860) prescribes death as an alternative punishment for the seven offences, murder (Section 302) being one of them. Section 302 says: “Whoever commits murder shall be punished with death or imprisonment for life and also be liable to fine.” The sentencing procedure is prescribed in Section 354 (3) of the Code of Criminal Procedure (1973) which reads “when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reason for the sentence awarded and in the case of sentence of death the special reasons for such sentence.”
The constitutional validity of these two provisions of law was challenged before the Supreme Court in Bachan Singh (1980) to be tested on the anvil of Articles 14, 19 and 21 of the Constitution. Avoiding the expression of opinion as to which of two antithetical views held by the Abolitionists and Retentinists is correct, the Supreme Court repelled the challenge by inter alia observing: It is sufficient to say that the very fact that the persons of reason, learning and wisdom are rationally and deeply divided in their opinion on this issue is a ground among the others for rejecting the petitioner’s arguments that retention of death penalty in the impugned provisions is totally devoid of reason and purpose.
A forceful plea was made before the Supreme Court for laying out standards or norms restricting the area of imposition of death penalty to a narrow category of murders. The plea was rejected by the court holding that first, there is little agreement among penologist and jurists on what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment. Secondly, the criminal cases do not fall into the same behavioral pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial discretion to take account of variation in culpability ceases to be judicial. And fourthly, standardisation of sentencing discretion is a policy matter which belongs to the sphere of legislation.
The court ruled that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction of the court in accordance with the sentencing policy writ large in Section 354 (3). It cautioned that judges should never be blood thirsty — hanging of the murderer has never been too good for them. Significantly, in Bachan Singh (1980), though the court had avoided standardising any categories of murder in which the death sentence should be awarded, in Machhi Singh (1983), the court did formulate certain categories of murder in which the death sentence was to be awarded.
The standardisation of the categories of murder in which death sentence must be awarded again came up for consideration in Swamy Shradananda (2008). The court noted with agony the deficiency of the criminal justice system and the lack of consistency in the sentencing process given by the Supreme Court. It noted that Bachan Singh laid down the principle of “rarest of rare cases”. Machhi Singh crystallised the principles into five definite categories of cases of murder and in doing so considerably enlarged the scope for death penalty. However, the court noted with dismay that the reality is that in later decisions neither the “rarest of the rare cases” principle nor Machhi Singh were followed universally or consistently.
The lack of consistency in sentencing process has even been judicially noticed. In Aloke Nath Dutta (2006), Judge Sinha gives some very good instances from a number of Supreme Court decisions in which on similar facts the court took contrary views on giving death penalty to the convict. This leaves the common man confused and bewildered. But mathematical consistency in sentencing is not possible to achieve because no two murders are identical. Allowance has also to be made for the background, beliefs, social philosophy and value system of the presiding judge. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency.
Mention may also be made of the hiatus between the public expectations and the court verdicts. To cite two recent examples, Jessica Lall, a bartender in New Delhi’s Tamarind hotel, was fired point blank and killed on her refusal to serve liquor to the accused. Even in a more gruesome incident, Priyadarshani Matoo, a young LL.B student was stalked by the accused for about two years and ultimately was raped and murdered by him in cold blood. Naturally, these incidents jolted the conscience of civil society and incited public furore. The people demanded death for both the culprits who happened to be the spoiled brats intoxicated by the heady brew of power and pelf of their parents (to borrow from Priyadarshani Matoo, 2010).
In the Jessica Lall case, the accused was acquitted by the trial court while the Delhi High Court reversed acquittal and convicted the accused for murder and sentenced him to life imprisonment, which was upheld by the Supreme Court. In the Matoo case, a somewhat similar result followed. The trial court acquitted the accused. This judgement was reversed by the Delhi High Court, which convicted him for murder and rape and sentenced him to death. On appeal, the Supreme Court, while maintaining conviction, commuted death sentence to life imprisonment.
In the perception of civil society, these murders were very gruesome which tended to endanger the life and safety of law abiding citizens and so deserved death. These judgments, no doubt, disappointed the public expectations, but on the anvil of the rule of “rarest of rare cases” laid down in Bachan Singh and followed in almost all cases since then, the Supreme Court was justified in awarding life sentence as it did. Perhaps court perception sometimes does not match the expectations of civil society.
A study of case law since Bachan Singh (1980) shows that the court is perceptibly veering away from capital punishment to life imprisonment. In this context, a new development may be noted. It was observed in Jagmohan Singh (1973) that life imprisonment in effect meant only 12 years in prison. However, in Swamy Shradhananda (2008), it was noted by the court by referring to a catena of cases starting from Gopal Vinayak Godse (1961) to C.A. Pious (2007) that the punishment for life imprisonment implies a sentence of imprisonment of the convict for the rest of his life.
Following this line of authority, the Supreme Court in Swamy Shradananda case (2008) where the convict (a tantrik) had committed gruesome murder of his wife, taking into consideration some mitigating circumstances, commuted death sentence of the convict and substituted it with imprisonment for life and directed that he shall not be released from prison till the rest of his life. In the United States, this type of sentence is known as life imprisonment without parole (LWOP). Some penologists argue that LWOP is a far more severe punishment than death.
Interestingly, 311 prisoners serving life sentence in Italy petitioned their government in 2007 for the right to be executed. They cited LWOP as a living death where they die a little every day. It is easy to condemn capital punishment as barbaric, but is spending the rest of one’s life in prison so much less cruel to the prisoner or is it merely a way of salving society’s conscience and removing the unpleasantness for the staff and officials? Thus, the debate between the Abolitionists and Retentionists the world over continues.
The writer, a former Additional and Sessions Judge, Punjab, is currently Member, Governing Council, Indian Law Institute, New Delhi
Expedite mercy petitions
The Union Government’s process of taking action on the petitions of those on death row for Presidential clemency has been very slow. The President’s power of pardon under Article 72 of the Constitution is not individualistic but institutional. The President can take a decision on a mercy petition only on the advice of the Union Home Ministry on behalf of the Union Council of Ministers.
A Supreme Court Bench consisting of Justice Harjit Singh Bedi and Justice J.M. Panchal has ruled that if the executive authorities, as a “rigorous self-imposed rule”, are not inclined to take action on a mercy petition within three months from the date of its submission to the President, the condemned convict would be free to apply for commutation of his death sentence to life imprisonment. Otherwise, it will be violative of his right to life and personal liberty guaranteed under Article 21 of the Constitution.
In February 2010, there was some forward movement when Union Home Minister P. Chidambaram met President Pratibha Patil. It was decided that beginning with the oldest mercy petition, the Union Home Ministry would send a formal letter to Rashtrapati Bhavan asking for recall of the file. Once the mercy petition was re-examined in the Home Ministry, the case would be sent back to the Rashtrapati Bhavan either with a request for the death penalty to be commuted to life imprisonment or with a reiteration that the case was fit for death penalty.
Though Home Ministry officials say that the file movement has commenced, it is very slow and needs a gentle push. Apparently, the President is not inclined to reject mercy petitions in a hurry notwithstanding the Union Home Ministry’s pro-active role on the issue. The debate about the continuance of capital punishment continues. Research shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. Criminal policy must be evidence-led rather than based on intuition which is often found to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, one cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of death penalty.
Those who escaped gallows
- Jagtar Singh Hawara, assassin of former Punjab Chief Minister Beant Singh (Punjab and Haryana High Court, Oct 13, 2010). The court upheld the death penalty of Balwant Singh, another co-accused, who confessed his hand in the crime.
- Cab driver Shiv Kumar for rape and murder of BPO employee Pratibha Srikantamurthy (Bangalore Fast Track Court, Oct 8, 2010).
- Santosh Kumar Singh for rape and murder of Priyadarshini Mattoo in New Delhi (Supreme Court, Oct 6, 2010)
- Six convicts of the 2006 Dalit family murder case. They get life imprisonment for 25 years (Nagpur Bench of Bombay High Court, July 14, 2010).
- Contract killer Mani Gopal for murder of the witness, a eunuch, inside the Tis Hazari court premises in 2003 (Delhi High Court, Aug 31, 2009)