‘Every saint has a past and every sinner a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal behaviour of many innocent convicts. Law must rise with life and jurisprudence responds to humanism.’
Krishna Iyer, J.
Ever since there has been crime, there is punishment. It follows that crime is as old as human kind and justice is as old as civilized society. In primitive societies, when a wrong was done against an individual he had to resort to self-help and retaliate with vengeance. This was jungle law which means “an eye for an eye and a tooth for a tooth.”
Punishment has been a subject of debate among judges, philosophers, academicians, jurists and advocates for centuries. The recent gangrape of a 23-year old victim in Delhi and the widespread protests that followed garnered much attention over the issue of Death Penalty. One of the most contentious legal issues to have arisen in question is in relation to repeated call for the provision of death penalty in anti-rape laws. After the execution of Ajmal Kasab and just before the execution of Afzal Guru, respectively the third and fourth executions in India since 1995, this incident fuelled the debate concerning the sustainability of death penalty in a democratic state, especially in an era of flooding human rights.
Author is of the view that the objective of punishment should be to bring about moral reform of the offender. Even if offender commits a crime, he does not cease to be a human being. It is to be taken into account that he may have committed a crime under circumstances which might never occur again. A possible objection is that it extends far beyond the field of capital punishment to many other areas of social life where it may yield results. For example, if capital punishment is immoral when societal injustices cause murder, the same could be said of the entire criminal justice system. It can plausibly be argued that the crime in general or at least certain types of crime are by-products of social injustice.
Death Penalty in India and rarest of rare Doctrine
In India, culpable homicide amounting to murder is at present a crime for which death penalty may be invoked. Though civilized and restricted in its application, death penalty is very much alive in India. The capital punishment in India is limited by ‘rarest of rare’ doctrine, where the application of the death penalty is restricted to cases wherein ‘the alternative option is unquestionably foreclosed.’ The rationale behind the decision is ‘a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.’
A leading supreme court’s judgement which has given birth to the “rarest of the rare” doctrine as a major criterion for imposing capital punishment in India is Bachan Singh v. State of Punjab. With innumerable interpretations and deliberations on various jurisprudential aspects in the recent past, the provision of capital punishment could be invoked only when “alternative punishment of life imprisonment is unquestionably foreclosed.” Although the sole reason behind the incorporation of this doctrine which designated death penalty as a punishment for such cases is deterrence of recurrence of such extreme crimes, there have been no statistical records which show improvements in the rate of such heinous crimes committed. One cannot appreciate how the concept ‘the most serious offences’ was chosen without recalling the situation as regards the extent of abolition of capital punishment at the time the decision was given. What took the time was the thornier question of whether the judges should include under ‘the right to life’ the complete abolition of capital punishment.
Dhannajay Chaterjee’s execution till date ignites fire as far as the correctness of the judgement is concerned. The major drawback of death penalty is the irrevocability of the decision once rendered incorrect. The ramifications caused by it are evident from the case of Santosh Kumar Satishbhushan Bariyar v. state of Maharashtra in 2009 where Supreme court has most invariably opined that in order to conceive the appropriateness of applying capital punishment the terms of (relative) lenient or severe punishment should not be over looked but should strictly adhered to. Moreover, the social stigma that is attached with the accused who is granted the death penalty does not leave the world with his last breath but it still haunts the poor family of the accused long after he has gone. Vindication of the image of the near ones in the family of the accused is impossible as a result the society never accepts them and they have to carry on with their cursed lives. Even if the experts are capable of assessing accurately the possibility of reformation, it does not guarantee the wiping out of arbitrariness in sentencing, because in the past there have been cases where the court has disregarded expert opinion and given judgments based on its whims and fancies. This is because it once again boils down to the personal predilection of the judges who constitute the bench. This might again lead to the ‘judge-centric sentencing’ approach, which this Court so vehemently condemns.
This judgment in Bariyar can be considered as yet another significant step which takes us closer to the abolition of death penalty. This judgment is a welcome step, which significantly tries to restrict the sentencing power of the courts, thereby attempting to bend the arc further towards abolition of death penalty. It does not lay down something very innovative, but interprets Bachan Singh in a distinct manner- different from the way in which it has been interpreted by the courts so far. The case of Bariyar is an important step towards the concept of abolition of death penalty, or at least the minimal use of the same. It divides the test of the ‘rarest of rare’ category into two parts, indicating that the prosecution has to first prove that the case belongs to the ‘rarest of rare’ category, after which they will also have to provide clear evidence as to why the accused is not fit for any kind of reformatory and rehabilitation scheme, thereby showing that the alternative option is foreclosed. In other words, the prosecution must show that rehabilitation is impossible.
The ultimate victims of the death sentence are not the actual perpetrators of the crime but are the ones who are economically socially backward, minorities and the weak. The Rajiv Gandhi assassination case would concretise this view point as after the pronouncement of the death sentence of Perarivalam who played as the battery for suicide bomber was assaulted and ill treated so as to make him confess his own crime. The poor languished souls usually fall prey to such inhuman and utterly ruthless acts of the police and accept the crime which they have never committed. Not to forget the arbitrary political gurus who have made the practice of “scape goating” highly prevalent where the lives of innocent people are sacrificed in order to safe guard the interests of majority. These politically and socially sickening policies have made the punishment of death penalty their breeding ground.
The “death sentencing” policy that is followed by our nation is fatally flawed. This policy is nothing but a defence kit for the murders committed on behalf of the ruling party in India who plays a pivotal and the only role in encouraging the heinous and arbitrary death encounters and extra judicial killings executed by the police. In reaching judgements about what would be an acceptable use of the death penalty reference would need to be made not only to changes in the practices of nations as they affected the norms that defined acceptable forms and levels of state punishments, but also to the development of the concept of human rights itself. Just as an almost universally agreed norm has developed that juveniles should be exempted from capital punishment other norms are in process of being established-for example that where death penalty is enforced it should never be mandatory, allowing discretion for the circumstances of the case to be considered.
India needs to stand and walk on the “two legs” of growth and equity and abolish capital punishment. Our nation’s death penalty policy enactors undoubtedly need a political will more than they need anything else. The strongest argument that holds water against granting of capital punishment is the irreparable consequence of an error in the process of granting justice. The Indian legal system works on the presumption of innocence in such a scenario even the thought of executing an innocent person by mistake may override any consideration in favour of such a punishment. While only four Asian states (Nepal, Bhutan, Cambodia and Philippines) have so far completely abolished the death penalty, five (Brunei, Laos, Maldives, Myanmar and Sri Lanka) are now abolitionist de facto. Where abolition has not been achieved there has been a movement to restrict the number of crimes for which the penalty is death, to make it discretionary than mandatory, and generally to restrict the number of people actually executed.
Death penalty, perfectly legal as it may be under India’s laws, even if only in a prescriptive sense, runs counter to the core objectives of the criminal justice system. Equally, its application in the “rarest of rare cases”- as mandated by the Supreme Court-speaks to a larger, underlying incoherence in India’s penology. Hang the murderers and the rapists and we will deter all future crime, seems to be the attitude. “If the offenders are awarded death sentence, it would become a model for the country” such desperate demands for guillotine shifts the focus from the far more important considerations: the maintenance of law and order through better policing, efficient prosecutorial conduct and most important of all the need to reform the nation’s prisoners. It has been a daily affair in the legal scenario where the innocent people are hanged just to give a smooth course to the overeager prosecution who fabricates charges against these poor victims to buttress their case.
“Nearly 138 countries have now abolished or stopped the practice of awarding the death penalty. In 2007, the United Nations General Assembly adopted a resolution calling upon the government still practising capital punishment to institute a moratorium.” It is high time for our nation to join the group and put an end to death penalty. Today, we however observe a worldwide trend towards the abolition of the death penalty: 73 have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty and 109 have voted in favour of the third United Nations Resolution adopted on December 21 2010, calling on states to establish a moratorium on executions with a view to abolishing the death penalty. At this point it would be an open question whether capital punishment is needed to deter murder.
The retention of death penalty, even when we stand in the 21st century, is contrary to the trend in the rest of the world. There has been a growing realization among the international community regarding the abolition of death penalty. These sentiments were echoed by United Nations (hereinafter UN) Secretary-General Ban Ki-Moon in 2007 when he stated, “I recognize the growing trend in international law and in national practice towards a phasing out of the death penalty.”
The upshot of the arguments posed in this article is that it is still undecided whether death penalty given for the crimes works as a deterrence for serious crimes or not. One who is against it would undoubtedly believe that it serves absolutely no purpose for the hardened criminals who are remotely afraid of being caught. Death Penalty is nothing but a judicially and politically influenced assassination committed for the purpose everything other than the betterment of the society. Death penalty crushes the only indisputable human solidarity- our solidarity against death. We Indians need to show more solidarity towards life by completing wiping of the capital punishment.