The Apex Court recently in the case of Shatrughan Chauhan & Others issued guidelines on commutation of death penalty to life imprisonment in cases of prolonged delay, insanity while serving the sentence, solitary confinement, judgment declared by the higher court to be erroneous, procedural lapses etc. Thus inordinate delay in granting clemency would be a valid consideration for commutation of death sentence to life imprisonment. The court did not tread upon the unchartered scope of presidential power and instead requested the Ministry to formulate guidelines to provide a time line for disposing of the mercy petition by the president or the governor. The court in the Rajiv Gandhi assassination case commuted the death sentence of three convicts and the state government has now ordered their release. All seems well in the judicial parlance. The long strung demand for redressing the problem of inordinate delays in deciding clemency petitions and the excruciating delays impending execution seemed to be getting redressed.
The 35th Law Commission report on Death Penalty stipulated that,
“Having regard, however, 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, to 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.” Majoritarian judicial wisdom in India advocates a retentionist’s argument towards death penalty. In India the imparting of death penalty is associated deeply with the idea of doing justice.
As of 2012, there are 97 abolitionist, 8 abolitionists for ordinary crimes (death penalty only under military law), and 35 abolitionists in practice (death penalty exists in law but not awarded as matter of practice) along with 58 retentionist countries. Countries like China execute people even for economic crimes. Across certain jurisdictions, drug related crimes or adultery can be offered with death penalty. A general echo in the international sphere on death penalty is that it needs to be abolished. And yet covenants like International Covenant on Civil and Political Rights or the Moratorium imposed by United Nations on Death Penalty provides for a ‘serious threshold’ criterion for imposition of death penalty for certain offences.
Thus prima facie there does not seem anything wrong with the idea of imposition of death penalty. Heinous, inhumane crimes and its victims deserve justice and the criminal rightfully so pays for it with his life. And yet this punishment mechanism is riddled with so many glaring discrepancies, judicial predilection, discretion, biases and torturous delays which defeat the very argument and purpose of the punishment or justice. A punishment that cannot be perceived as fair or quick in its implementation will never truly deter a criminal. Even in terms of the victim or his family, the retributive justice comes too late to really make a difference. In the end the criminals themselves become victims in the hands of this mechanism and a string of human right activist’s line up advocating their cause, seeking mercy for them. All this happens in the background of the cold reality that the original victim is long forgotten and what should have been subtle tale of justice being meted out redressing heinous crimes becomes a flashy mayhem advocating the rights of the victims of the punishments who were criminals in the first place.
This argument may seem far too callous and cold for those who argue the cause of abolishing death penalty and champion the case of rule of law and right to life as stipulated under article 21. And even rightly so!
Death penalty in India is awarded for a plethora crimes namely murder, gang robbery and murder, abetting suicide of minor or insane person, waging of war against nation, abetting mutiny by members of the armed forces or for the new entrant i.e. rape resulting in persistent vegetative. Macaulay through IPC crystallized this modicum of punishment in the Indian Laws. Also several other laws like Narcotics Drugs and Psychotropic Substance Act, 1985, Explosive Substance Act, 1908, Scheduled Castes, Scheduled Tribe (Prevention of Atrocities Act), Army Act, Navy Act etc also provide for death penalty.
Death Penalty is awarded by judges based on their own better judgment. A life is at stake subject to human error and discrepancies. The clemency in cases of such a punishment being awarded is granted by the President or Governor with no prescribed time line and the prisoners waiting on death row can be hanging in line for the noose sometimes even for as long as 12 long years.
The doctrine of ‘rarest of rare’, in awarding death penalty was carved out by the Supreme Court in the case of Bachan Singh v State of Punjab when the other option is reasonable foreclosed. What this impliedly meant was that death penalty had to be tendered in those circumstances when the crime was heinous and barbaric. That is what rarest of rare was supposed to mean. And yet there have been cases when the death penalty has been awarded on the basis of explicit reasons like gravity of the crime or barbaric nature apart from using the reason of rarest of rare.
The case of Machchi Singh further outlined the aggravating and mitigating circumstances to be considered while imparting such a punishment. And yet menace of judicial discretion and arbitrariness could not be weeded out. In the case of Rajaram Yadav v State of Bihar, the court commuted the death penalty in case of killings by Yadavs against a rival community. In Alok Nath Dutt v State of West Bengal, the reason for commuting was that murder was committed out of greed. In the case of Swamy Shraddhananda v State of Karnataka, the husband had killed his pregnant wife so that he could marry again for more dowry. The death penalty was commuted. In the case of State of Punjab v Harghet Singh, the reason for commuting the crime was given was that crime was committed out of lust and not enmity. The killings in Brajendra Singh v State of U.P according to the judges fell short of the rarest of rare case because it was done out of frustration. These random decisions suffer from an underlying disturbing pattern. They represent the ‘Chalta Hai’ attitude of the Indian Society. Community Clashes, violence in riots, submissions to the vices of greed and lust or the cruelty that proceeds dowry, all these represent and reflect the closeted acceptance by our society to such crimes. What makes it even more nauseating, absurd and disturbing is that these societal sanctions feature in the ambit of ‘judicial discretion’ which operates in the exercise of death penalty.
The court in Mohd Chamman finally pointed out that it was impossible to carve out a uniform set of guidelines which could be followed by judges and thus it would inevitably be subjective and judge centric. Thus when the question of commuting the death sentence came, it would all depend upon whether the bench was largely abolitionist or retentionist in nature. The problem does not end with subjectivity in the decisions. The Apex court so far has not been definitive in its stance of awarding death penalty on whether it is based on the crime or the criminal.
In the case of Ravji v. State of Rajasthan, it has been held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society’s cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance”. It was in the landmark judgment, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, Justice S.B.Sinha pointed out that Ravji’s case and the six subsequent cases in which Ravji was followed were decided per incuriam, as the law laid down therein is contrary to the law laid by the Constitution Bench of the Supreme Court in Bachan Singh. In Bachan Singh , Court held that before giving death sentence Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but must also give due consideration to the circumstances of the criminal. Now recently the court has taken up to hear the case of Ankush Maruti Shinde and Others v State of Maharashtra to rectify the reliance on Rajvi Case.
Sometimes the courts feel, it is reasonable to kill a man to justify the collective conscience of the society. And this variable of collective conscience keeps changing from time to time. The court may feel reasonable enough to award a man with the highest punishment: death penalty based on circumstantial evidence alone to justify the collective conscience of the society as it happened in the case of Afzal Guru.
Was the court infallible in delivering that death sentence?
Well, we still do not know who those five perpetrators who attacked the parliament were. On why surrendered militant was treated by the Court with increased suspicion. It questions the objectivity of the courts in awarding punishments. On how a suspect’s confession which had glaring contradictions and allegations of third degree torture by the STF Cell, could lead him to his noose. We do not know as to why no one objected to the gross discrepancies in the evidences like the sim and the laptop which connected Afzal to the crime. The sim he was alleged to be using was not operational during the time frame suggested by the police. The laptop evidence was tampered with. The president in complete secrecy rejected his mercy petition and his family was not even informed of the execution of his death sentence as is a mandate in the Model prison manual. The nation whose conscience was collectively justified by executing Afzal, witnesses the possibility that the Rajiv Gandhi assasins might walk free considering their death sentence has already been commuted to life imprisonment. There is no set standard for awarding this punishment. And probably there never can be because judicial predilections and subjectivity is impossible to nullify from the judicial system. In the normal course of judicial parlance this would not make a huge difference but in case of awarding death penalty, even a slight error or subjectivity can have far reaching consequences. When an error is committed while deciding cases of death penalty, the judgment can be declared per in curium i.e. bad in law and done away with it but the life lost cannot be brought back.
As if judicial subjectivity was not enough, there are those incidents of long and painful delays or procedural lapses in executing the death penalty so awarded. The court in the case of Sher Singh v State of Punjab provided that ‘condemned prisoner also has a right to fair procedure. In the case of Triveniben v State of Gujarat, the court held that delay could be considered as a ground for commuting death penalty but it would also depend upon the nature of the crime committed. Thus terror related crimes seemed to be categorized on a different footing all together. The court in T V Vatheeswaran v State of Tamil Nadu held that prolonged delays have had a dehumanizing effect. Sentence of death is one thing and that followed by lengthy imprisonment in prison prior to execution is another. Now the court seems to have revisited its stance on delay and delay could now on be a ground for commuting death sentence, without any exceptions like those of terror related crimes.
Even when it comes to granting of clemency, some presidents have been known for insipidly rejecting mercy petitions hugely influenced with political considerations and underpinnings. The clemency petitions are stalled for years with justice being delayed and denied.
The courts have acknowledged that the power to grant pardon is not an act of the President’s or governor sitting in Appeal to the court’s decision. It’s an act of grace. And it’s a part of the constitutional wisdom of the nation. The power to grant clemency does not have a proscribed time line and has a very limited scope of judicial review. The court determined in the case of Narayan Dutt v State of Punjab that clemency could be reviewed if based on extraneous considerations or without application of mind etc. Union Government has also formulated guidelines to be taken into consideration by the president/governor while granting clemency. These guidelines include factors like personality of the accused or the fact that his punishment was enhanced by the higher courts or was based on unreliable evidence or difference of opinion. The court now has added another test to this scope of judicial review, the test of Article 21. The court has gone ahead to argue death with life. Thus the act of clemency has to be based in aid of justice and not in defiance of it. Unexplained, inordinate or unreasonable delays would warrant the commutation to life imprisonment.
The rationale for awarding death penalty is that some crimes are too heinous and barbaric and thus the criminals have to be adequately deterred in order to preserve the society. And yet if one analyzes slowly this flawed reasoning, one would realize that deterrence is not just the function of severity of the punishment, it is also the possibility of it being imparted. With death penalty there is no perceived standard or set rule. Even when it is awarded, the execution comes after several years. Hence a criminal may not be deterred by such a punishment when he knows that he may not be awarded this punishment given the judicial subjectivity, the long delays which may increase the chances of the penalty being commuted. Also a trial cannot be conducted and executed merely to give moral instructions to the society.
Scholars like Jeremy Bentham propagated that punishment should comply with the hedonistic scale of happiness such that it results in greatest happiness of all. A form of existent punishment which is perceived by the society as unjust and which may or may not happen after years of judicial delay cannot in any way increase the happiness quotient of the society. This punishment does not contribute in any way in increasing the net social outcome of the society.
This present form of delivering death penalty does not serve the cause of any single mortal. The abolitionist’s would win the argument against it by plainly outlining the one too many flaws in the mode of execution of death penalty. But even for those in favor of retention, retribution or deterrence both of these concepts too deserve impartial and definitive standards. The society cannot be tempered into hanging a man to justify they collective conscience of the society on one hand and on the other hand welcome the reprieve of the assassins of the former Prime Minster of India. One cannot simply watch the moral debacle of clemency being denied to man who is seriously ill and whose chances of recovery are minimalistic. This delayed and crooked justice would not bring peace even to the victim’s family or the society as a whole which seems to be flushed with multifarious ideas of justice.
Saumya Dev is Student Reporter at Live Law. She is also a 4th year student of Gujarat National Law University. The views expressed by author are of her own.