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.)
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.”
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)
The public interest litigation seeking stay of the operation of judicial order for executing Balwant Singh Rajoana, a convict in assassination of ex-Punjab chief minister Beant Singh and 17 others, was dismissed by the Punjab and Haryana high court on Thursday on the ground that the petitioner had no ‘locus standi’(legal stand) to file the petition.
The division bench comprising justice Hemant Gupta and justice AN Jindal said that earlier Rajoana had already refused to put appearance before the high court in the murder reference and had also declined the assistance of a counsel to defend himself on government expenses. “He(Rajoana) has not even filed an appeal before the Hon’ble Supreme Court. This court has no such jurisdiction to stay an order passed by the Co-ordinate Bench(one of the courts in high court) by way of an interim order in a public interest litigation,” held the bench. A division bench of the high court on October 12, 2010 had confirmed Rajoana’s death sentence but converted another co-accused Jagtar Singh Hawara’s death sentence to life imprisonment.
The petition filed by an NGO, Lawyers for Human Rights International had requested that till such time the petition filed by the CBI challenging the earlier high court orders in the Supreme Court attains finality, the execution of Rajoana’s death sentence should be stayed, as there is a possibility of setting aside the high court’s order confirming Rajoana’s death sentence. The petititioner also submitted that a co-convict in the case, Lakhwinder Singh has also filed an appeal in the Apex Court.
However, citing an Apex Court’s judgment in a case of 1992 ‘Simranjeet Singh Mann vs Union of India’, the division bench said that the public interest litigation was dismissed in this case which was filed by a president of a political party challenging the conviction and sentence awarded to two convicts. The Apex Court judgment reads, “In the present case, no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. …”
The division bench also cited two more Apex Court’s judgments, i.e. in ‘Karamjeet Singh Vs. Union of India(1992)’ and ‘Ashok Kumar Pandey Vs. State of West Bengal(2004)’challenging death sentence of one Dhananjay Chatterjee, reiterating smilar view while dismissing PILs.
August 31, 1995 : Ex-Punjab chief minister Beant Singh and 17 others assassinated by a human bomb Dilawar Singh outside Punjab and Haryana Civil Secretariat.
July 31, 2007 : Trial court awards death sentence to Hawara and Rajoana. Gurmeet Singh, Lakhwinder Singh and Shamsher Singh awarded life imprisonment and Nasib Singh sent to 10 years imprisonment.
October 12, 2010 : High Court confirms Rajoana’s death sentence, converts Hawara’s death sentence to life imprisonment.
March 5, 2012 : Additional sessions judge, Chandigarh orders Rajoana’s execution on March 31 at 9 am.
March 22, 2012 : HC dismisses PIL seeking stay on orders of Rajoana’s execution.
TIMES OF INDIA
Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The remarks were made by Justice Ganguly yesterday at a two-day seminar on ‘Abolition of Death Penalty in India‘. The seminar was organized by the Jindal Global Law School at Sonepat in Haryana. The sitting judge of the apex court said sending a convict to the gallows, is legal but “barbaric, anti-life, undemocratic and irresponsible”.. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.
He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.
PAMELA PHILIPOSE IN THE HINDU
Capital punishment is retributive justice and abolishing it is a risk that modern states need to take, says Pamela Philipose.
Gabriel Garcia Marquez‘s classic, One Hundred Years of Solitude, begins with a line that could be read as a powerful argument against capital punishment: “Many years later, as he faced the firing squad, General Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.”
The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing. So it is entirely understandable why that angst-ridden question — Should India remove capital punishment from its statute books? — refuses to go away. Here we are, with our much-feted legacy of non-violence, with our burnished democratic Constitution and Credentials, still attached by the feet to the ever-shrinking corner of the globe which continues to defend the death penalty.
It has been an uneasy defence for sure. The umbrella formulation that the death penalty should only be accorded in the “rarest of rare cases”, put forward in 1980 by the Supreme Court in Bachan Singh v. State of Punjab, has remained an uncertain talisman with Indian courts interpreting it in an astoundingly variegated manner, but it has remained a talisman nevertheless. Indian Presidents, too, have routinely dragged their feet over rejecting mercy pleas. The country has also, incidentally, seen attempts to institutionally “reform” the administration of the death penalty. The ‘Model Prison Manual for the Superintendence & Management of Prisons In India’ (2003) recommends that all prisoners going to meet their fate at the gallows be made to wear “a cotton cap with flap” so that he/she will not be able to see the gallows — an highly ineffectual aid, surely, under such circumstances.
Internationally, India continues to remain in an ambiguous position. It is party to the International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment, but has desisted from ratifying the Second Optional Protocol to the Convention and last November it voted along with China and Saudi Arabia to oppose a UN resolution for a moratorium on the death penalty.
So while there may be some curling of toes over the prospect of denying criminals on death row their right to life, the Indian State has consistently balked at doing away with the hanging option. By and large, the argument put forward by the Law Commission of India in 1967 continues to hold sway. In its 35th Report, the Law Commission pronounced that “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”
The fact is that 139 countries in the world — and their number is rising not declining — despite serious security challenges have taken this “risk”, precisely because it is a risk that modern and modernising states should take, given that not doing so would compromise the very notion of an enlightened state. Remember that many of these countries have had long and grisly trysts with capital punishment. Pre-19th century England, for instance, had over 200 “crimes” that could invite a hanging sentence. The list included thievery (goods valued at five shillings and more), maiming horses, impersonation and ‘sodomy’.
One of the justifications for persisting with the death penalty is, of course, that inchoate, arbitrary, unquantifiable and often irrational concept known as “public opinion”. Indian courts, incidentally, have been sensitive to “public opinion”. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated: “Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime…”
But “society’s cry for justice” is an uncertain foundation for justice as Arthur Chaskalson, who served as Chief Justice of South Africa from 2001 to 2005, reiterated. He put it this way, “Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication…”
The founding fathers and mothers of post-Independence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not as if they did not envisage the possibility of the country exercising that option at some point. Amiyo Kumar Ghosh, a member in the Constitutent Assembly, while opposing an amendment that wanted a partial ban on capital punishment, went on to say, “I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…”
The questions we then need to ask is why, despite the long decades that have intervened since those words, India still cannot countenance such a possibility. Why does it continue to perceive the hangman’s noose as coterminous with the scales of justice? Why does it settle for peremptory and irrevocable responses to heinous crimes, when the world is engaging with ideas of restorative rather than retributive justice? Can’t post-independence India not hold itself to standards higher than those set by its one-time imperial rulers, standards that had been sharply critiqued by the freedom movement?
A passage from Bhagat Singh’s last petition to the Punjab governor should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.”
He and his comrades in arms, Rajguru and Sukhdev, were hanged on March 23, 1931.
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)
- Death penalty in the US: the facts (telegraph.co.uk)
- The Tide Shifts Against the Death Penalty (time.com)
- Supreme Court Justice Publicly Criticizes the Death Penalty (uspoverty.change.org)
- Dwindling Death Penalty: Victim of the Recession? (time.com)
- Court admits it erred, upholds commutation of death penalty (indialawyers.wordpress.com)
- Stevens’ Case Against the Death Penalty: Shirking the Blame (time.com)
- Federal judges overturn Ohio man’s death sentence (seattletimes.nwsource.com)
- Death penalty breaches constitution, Texas lawyers argue (telegraph.co.uk)
- Priyadarshini Mattoo’s father blames the CBI (ibnlive.in.com)
- Priyadarshini Mattoo Murder Accuse Death Penalty Cancelled – Awarded Life Imprisonment (panasianbiz.com)
- Dowry killings deserve death penalty: Supreme Court (indialawyers.wordpress.com)
- Is justice blind? (indialawyers.wordpress.com)
The execution of a woman by the State of Virginia shows that the U.S. too is as ruthless as some other countries in enforcing capital punishment.
The fundamental question is whether any life can be deemed of no value whatsoever, capable of being legitimately snuffed out.
– A reader’s comment in The Washington Post (September 27) on the execution of Teresa Lewis of Virginia
ONE is generally sceptical of governments, both on what they do and on what they omit to do. Take, for instance, the initial stand taken by the Indian government in the matter of foodgrains rotting in warehouses, a callousness to which the Supreme Court took umbrage in firm language, or the messing up of the preparations for the Commonwealth Games by a host of stakeholders, including the Delhi government.
This negative perception of state institutions extends sometimes to judicial orders also. But nothing beats the insanity of what happened in the United States a few weeks ago, when the Governor of Virginia and the U.S. Supreme Court refused to intervene to stay the execution, on September 23, of a 41-year-old woman accused of murdering her husband and stepson. It is painful that they shied away from taking a humane stand despite the authority and latitude they enjoy and the vociferous protests from death sentence-abolitionists. By all standards of civilisational progress, a death sentence is obnoxious in itself. It is even more so when the state takes the life of a woman.
Some fundamental statistics highlight how the execution of Teresa Lewis was unusual, if not unprecedented. Hers was the first execution of a woman in a century in Virginia, and the first for the whole country in five years. Also, of the nearly 1,200 persons awarded capital punishment in the country since 1976, when the U.S. Supreme Court restored the penalty, only 11 have been women. Against this backdrop, what has been reported from Virginia has rightly earned negative publicity for the whole U.S. criminal justice system. This should also invite world attention to the fact that when it comes to ruthlessness in enforcing capital punishment, the U.S. is in the same league as China, Iran, Saudi Arabia, Pakistan, Congo, Egypt and Iraq. Certainly, this is not the company the U.S. would like to keep.
The facts of the case are simple. Teresa Lewis was married for the second time to Julian (51), who had a 25-year-old stepson. It is not clear how well the marriage was working out. But it is believed that somewhere along the line, Teresa, who had a known learning disability, set her eyes on her husband’s estate and the insurance on his son’s life. In order to appropriate both, she entered into a criminal pact with two men of questionable background, Matthew Shallenberger and Rodney Fuller.
The exact terms of this partnership were in doubt, but the fact that Teresa had a liaison with Shallenberger added spice to the unholy alliance. On the night of October 30, 2002, Teresa left the door of her house unlocked to facilitate the entry of the two men and their shooting down of the father and son. During the police investigation, Teresa initially took the plea that the murders were the work of an intruder, but wilted subsequently under some tough questioning and admitted to her horrendous crime. This led to the arrest of her accomplices as well.
The trial was without a jury because under Virginia law when a defendant confesses to his or her crime, the judge can dispense with it. On Fuller’s confession and agreement to cooperate with the prosecution, he was awarded a life sentence. Taking the cue from this and considering the fact that the trial judge had never awarded a death sentence, Teresa also pleaded guilty, hoping to receive just a life imprisonment.
Much to her shock, however, the death penalty was imposed on her. Shallenberger, like Fuller, was also given only a life term. This caused many eyebrows to raise in the legal fraternity. It was a matter of surprise that while the actual perpetrators got only a life sentence, the person who only facilitated it was awarded capital punishment.
Justifying this differential, the trial judge said Teresa was the “head of the serpent”, and did not deserve any sympathy also because she did not do anything to assist her husband who was struggling for his life in her presence. He added that she was guilty of greed in ordering the “cold blooded, pitiless slaying of two men, horrible and inhumane”, something that “fits the definition of the outrageous or wantonly vile, horrible, act”.
The judge was also not impressed with the findings of a forensic psychiatrist who examined Teresa before she entered her guilty plea. The psychiatrist found her Full Scale IQ to be 72, which put her on the borderline. A score of 70 or less would have given her the benefit of mental incompetence to commit the said crime.
After the rejection of her mercy plea by the Virginia Governor, who went by the decision of the trial court and other reviewing courts in the State, Teresa’s lawyers went in appeal to the Supreme Court. In doing so, they cited the results of two separate IQ tests Teresa took after her sentencing by the trial court. These were conducted by her own expert and one working for the State. She obtained ratings of 73 and 70 respectively. A score below 70 would have enabled her to be regarded as mentally retarded. Also cited were Teresa’s contrition and her exemplary behaviour in prison.
The defence further referred to a letter Shallenberger wrote to a fellow prisoner, in which he referred to how susceptible Teresa was to his manipulation in conspiring to plan the murders. (The letter could not, however, be produced by the defence lawyers before the Supreme Court because Shallenberger committed suicide while in prison.) None of these arguments influenced the Supreme Court, which upheld the conviction and death sentence. Interestingly, of the three women judges in the court, two dissented and desired a halt to the execution.
The execution of Teresa Lewis has generated a huge controversy. One of the first to jump into the fray was Iranian President Mahmoud Ahmadinejad, who accused the U.S. of practising double standards. His reference was to the U.S. criticism, earlier this year, of the sentencing to death by stoning of Sakineh Mohammadi Ashtiani by an Iranian court, which, fortunately, is yet to be carried out.
Also joining the chorus of protest was the famous crime novelist John Grisham, according to whom the criminal law and procedure in Virginia reeked of inconsistencies that contributed to the unfairness to Teresa. Writing for The Washington Post (September 12) pleading for clemency for Teresa, he said:
“There have been other cases with similar facts – a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death.”
I cannot agree more with Grisham that Teresa deserved to live, although that could be inside prison. I am more concerned about the very barbarity of capital punishment and totally in sync with what The Times, London, said (September 25) on Teresa’s execution: “…it is never justifiable to execute a citizen with the authority of the State. There is inadequate evidence that capital punishment acts as a deterrent. It is an irreversible act that ignores the risk of a miscarriage of justice. No room is allowed for repentance or correction. And by sanctioning such an act, society diminishes itself.”
The Times’ arguments are the same advanced ad nauseam all over the world by persons who want to make a difference to the world they live in. This is why I would again ask the readers, as I have done a number of times before and in various forums, to ponder the inequity of capital punishment and build strong public opinion that will eventually persuade policymakers to remove the penalty from the statute books.
Fortunately, the courts in India are extremely judicious and selective in the matter, and there are just a few executions every year. But this is no reason why we should persist with this cruelty that does not square with what the Father of the Nation stood for: compassion and charity. Bereft of these components, a criminal justice system is both lame and blind.
- “Monday News: The Upcoming Execution of Teresa Lewis” and related posts (riverdaughter.wordpress.com)
- Supreme Court won’t stop execution of Virginia woman (cnn.com)
- Grandmother Awaits Execution In The US (news.sky.com)
- Virginia Woman Faces Execution amid Calls for Leniency (time.com)
- Virginia woman to be executed in 2002 deaths (cnn.com)
- Teresa Lewis given lethal injection despite protests over low IQ (guardian.co.uk)
- Virginia set to execute first woman in nearly a century (guardian.co.uk)
- US executes grandmother by lethal injection (telegraph.co.uk)
- Is Teresa Lewis’s Execution A Gender Issue? [Crime And Punishment] (jezebel.com)
- In Virginia, a Woman on the Verge of Execution (time.com)
Chairman of the National Human Rights Commission (NHRC) and former Chief Justice of India K. G. Balakrishnan’s recent defence of the death penalty is bewildering. His “deterrent effect” argument is starkly at odds with the near universal understanding that the fundamental right to life implies, among others, the abolition of the death sentence. In the 1951 A. K. Gopalan case, the Supreme Court of India effectively allowed unlimited restrictions on the right to life and liberty, so long procedures prescribed by law were followed. In the Maneka Gandhi case some three decades later, however, the court limited the scope to those procedures that were “right, just and fair,” not “arbitrary, fanciful and oppressive.” Significantly, in a 1985 ruling where execution by public hanging was declared unconstitutional, the court made the stinging observation that “a barbaric crime does not have to be met with a barbaric penalty.” This is the sequence of illustrious verdicts that culminated in the apex court’s landmark judgment limiting the award of the death penalty to the “rarest of rare cases.” To be sure, the letter and spirit of that ruling has largely informed judicial opinion and public debate on capital punishment ever since. The Supreme Court has displayed sagacity and restraint in its appellate jurisdiction, even if the lower courts have tended to hand down the death penalty more readily. Recall the initial verdict and the subsequent pronouncements in the Rajiv Gandhi assassination case.
It should be fairly obvious to Justice Balakrishnan, more than to others, that his sanguine view on the legal safeguards for the death penalty is not borne out by facts on the ground. The accused in serious offences are often unable to get proper representation during trials; investigative agencies often resort to torture to extract confessions; and the complex web of corruption coupled with the suppression of evidence does not offer the assurance that no innocent person would be convicted. And, appealing to the higher judiciary is beyond the pale of the ordinary citizenry because of the huge cost. The cost-benefit analysis in terms of the “deterrent value” of capital sentence in the reduction of heinous crimes repudiates the very notion of punishment as a reformative process. The country’s premier body vested with the protection of human rights is expected to take a humane and sympathetic view to soften the law’s hard edges, and the right course for it would be to steer the public debate towards abolition.
Setbacks for opponents of capital punishment, but they are making more progress than meets the eye
Mar 25th 2010 | From The Economist print edition
BELIEVERS in “progress”, or at least those of a mutton-chopped, European variety, hold to a kind of ascent of man. First comes spreading prosperity. Then representative government replaces tyranny. Finally, notions of human rights, social justice and the fallibility of the state extend even to death row, and the judicial terror of capital punishment is ditched. Last year was the first in Europe’s recorded history in which not one person was executed.
On the face of it Asia stacks up not at all well against this achievement. The region accounts for just over half the world’s population. Prosperity has spread, and representative government. But in its application of the death penalty, Asia leads the world. Some 95% of Asians live in jurisdictions that carry out capital punishment, and Asia accounts for over three-quarters of executions worldwide.
South Korea has not carried out a death sentence in 13 years. Yet in late February the Constitutional Court ruled that the death penalty as prescribed in the criminal code did not violate the constitution. This alarms the country’s legal scholars. The 110-odd crimes qualifying for the death penalty include corporate offences and “criminal ideological violations”—a throwback to South Korea’s dictatorial days.
And this month in Taiwan the justice minister, Wang Ching-feng, suddenly resigned. A Buddhist, she fiercely protected the lives of 44 death-row convicts. The president, Ma Ying-jeou, a former Harvard law student, was also thought to oppose capital punishment. But his party, the Kuomintang, is sagging in popularity before year-end elections. Miss Wang’ s stance cost her her job. On March 22nd a new justice minister was sworn in, hinting that the official killing would begin again.
Yet dig a little deeper, and the picture looks different, even hopeful. In December the UN General Assembly votes on calling for a global moratorium on capital punishment. Abolitionists lobbying Asian governments will find a better reception than you might think. Naturally, Asian statistics are skewed by China, alone accounting for over nine-tenths of all Asian executions. But even Chinese executions have seen a precipitous fall. A best guess is that 5,000 were executed in 2008, giving a rate per head of population dozens of times higher than the United States. Yet this represents a drop of two-thirds from a decade earlier.
China’s penchant for execution is explained by a dictatorship which has a low regard for citizens’ rights and uses violence as an instrument of state power. But an official policy of “kill less, kill carefully” is taking root. All capital cases now have to be reviewed by the Supreme Court, which is said to approve only a tenth of cases, a remarkable change, if true. So even in China development seems to have bred a less punitive state. Perhaps a human-rights dialogue between China and the EU, long derided by liberal critics, is actually doing some good.
Another populous country, India, is also “retentionist”, but from 1999 to 2008 it executed just one man. For Asia as a whole, according to David Johnson and Franklin Zimring writing in the online Asia-Pacific Journal, 16 out of 29 jurisdictions have abolished the death penalty, either definitively or in fact, whereas 13 retain it. In January Mongolia, with a history of murky executions, was the latest to declare a moratorium. The death penalty, said President Tsakhia Elbegdorj, was an act of state violence that ran the risk of irrevocable error, and neither deterred criminals nor restored justice to victims’ families.
Even in South Korea and Taiwan, there is probably no profound change of course. Both democracies emerged from mid-century authoritarian rule marked by an orgy of judicial and extra-judicial killings. These are now in the past: one democratic president of South Korea, the late Kim Dae-jung, was himself sentenced to death in 1980, before reprieve. NGOs now lobby for convicts’ rights, and lawyers argue that the issue is not between death-row convicts and the rest of the citizenry but of overweening state power over all.
Like nearly all countries considering abolition, in Taiwan people are overwhelmingly against it, but abolitionists, including Mr Ma’s former Harvard professors, hoped the president would lead from the front. Both countries are concerned about their international reputation, including among Europeans. And each is in soft-power competition for legitimacy with a bloody, authoritarian rival. Before too long, both may fall into the abolitionist camp.
Rich, plural and cruel
Outliers remain. Until recently, rich, sophisticated, peaceable Singapore killed as high a proportion of its population as does China. And in Japan executions have risen sharply in recent years. Quite apart from known miscarriages of justice, the country’s penal habits are chilling. Its death-row inmates, in solitary confinement, are allowed few visits from family or lawyers. They must sit all day on their bed, with rules dictating even their postures, and may not look their guards in the eye. After waiting usually years, they are hung, always during a parliamentary recess, with only a couple of hours’ notice, with the family informed only when it is told to pick up the body. With high rates of mental illness from the stress, this is bureaucratic killing at its cruellest.
How to explain these exceptions to the model of “progress”? Perhaps, Mr Johnson and Mr Zimring argue, by realising that both countries, although structurally pluralistic democracies, have long been in practice under one-party rule. But recently executions in Singapore have fallen by nine-tenths. In Japan the fall from power last year of the Liberal Democratic Party may signal change. The new justice minister, for one, is an abolitionist and has signed no death warrants. Asia has yet to prove those old European dreamers wrong.