The danger in precedents

February 26, 2014 01:33 IST 

Opinion: The Hindu 

It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty The recent judgments of the Supreme Court have shifted the focus back to capital punishment in India. The jurisprudence of death penalty is as inconsistent as it is confounding in most cases. The recent cases have, however, tried to usher in greater clarity in dealing with the death penalty law and its execution. The decision of the Tamil Nadu government to set free the assassins of former Prime Minister Rajiv Gandhi has added another dimension to the debate. In the light of these developments, it is important to take stock of the evolution of capital punishment in India while evaluating the probable ramifications of the Tamil Nadu government’s decision. 

The ‘rarest of rare’ test The ‘rarest of rare’ test was laid down by the Supreme Court in 1980 in the Bachan Singh case. The judgment also made it incumbent on the state to adduce sufficient evidence that there is no scope of reform for the accused in the slightest. Further, an analysis of the aggravating and mitigating circumstances must be made to ascertain if death alone is the most appropriate punishment in a given case. Therefore, the significance of the judgment also lay in seeking to strike a balance between the crime and the criminal in doling out the sentence by the courts. However, as was pointed out by the Court in Santosh Bariyar (2009), many subsequent cases have focused only on the crime while looking away from the criminal while awarding the death penalty. 

The Supreme Court felt in Gurvail Singh (2013) that the time was ripe to develop the legal position to be socially more accommodative, while moving a step away from the “principled stand” as propounded in the Bachan Singh case. Gurvail Singh has been referred to in the Ram Singh case, dealing with the December 16 Delhi gang rape, where the sessions court took note of the exceptional depravity and extreme brutality of the crime which aroused “intense and extreme indignation of society.” The ‘extreme misery’ suffered by the victim and ‘grave impact’ of the crime on the ‘social order’ were stated as the reasons behind the ruling. The result is that there is a tilt towards the crime as compared to the criminal. 

On the other hand, the Supreme Court in the Sushil Sharma case held that death penalty is entirely avoidable given that there are grounds of reform available for the convict. In the case of Shatrughan Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture. However, the case of Devinder Pal Singh Bhullar took the death penalty jurisprudence to another level in ruling that there was a difference in treatment to be meted out to convicts under the Indian Penal Code and those convicted under special terror laws. For the latter, undue delay cannot be a valid ground to commute the death penalty. In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down per incuriam. It is noteworthy as it buttresses the extremely high limit set to achieve the threshold of ‘rarest of rare,’ albeit implicitly. 

From the above discussion on judicial precedents, it is evident that there is great subjectivity involved in deciding what constitutes the gravest of circumstances that could justify the state to take away life. The Tamil Nadu government has decided to set free the convicts in the Rajiv Gandhi assassination, exercising its power under Sections 432 and 435 of the Code of Criminal Procedure, 1973. This assumes further significance as Section 435 mandates consultations with the Union government when the conviction is under central laws. Acknowledgment of the grave injustice in the undue delay in execution by the highest court of the country does not wash away the fact and gravity of their crime that has been proved beyond reasonable doubt. In deciding to release them, the Tamil Nadu government is surely entering a risky territory which may set loose a politically-charged atmosphere and set a dangerous precedent. 

The governments concerned must handle such cases with astute political wisdom and maturity, as it is their responsibility to ensure citizens’ safety. If there is relaxation shown to a criminal convicted of something as deplorable as the assassination of the former Prime Minister, then it begs the question as to what could be an effective deterrent for criminals in the future. This stand puts our internal security at peril, when communal and left wing forces are on the rise, in addition to the sustained terror threats from across the border. Against this backdrop, it is important to consider the cases of Ajmal Kasab and Afzal Guru. Both these cases marked a break in the so-called self-imposed moratorium on death penalty by the Indian judiciary. And both cases involve matters of national security and instances of terrorism. 

This itself proves that accompanied with executive expediency, death penalty has been justified for the perpetrators of grave criminal and terrorist activities — at least till the time that it exists in our legal system. Retention of death penalty A key question to ask at this juncture is whether it is too ambitious to expect a correlation between the crime rate and death penalty in a jurisdiction where the wheels of justice are eternally slow. For us to be able to fairly introspect on the justifiability of the death penalty, a lot rests on the executive promptness in dealing with existing cases. By creating an additional ground for commuting the death sentence solely because of the lack of executive promptness, the Supreme Court may be subtly pushing India into a territory of no capital punishment, but the legislative intent is ostensibly at deviance. 

India voted against the Record of Votes on the U.N. General Assembly Moratorium Resolution, 2012, just as it had in the past. The Human Rights Council recommended in its Universal Periodic Review 2012 that India should establish an official moratorium on execution. While trying to move towards abolishing the death penalty completely, India should also commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. Both of these recommendations India did not agree with. There seems to be greater judicial clarity in cases of mandatory death punishments in India. Recently, the Bombay High Court ruled in the India Harm Reduction Network case that the mandatory death penalty for drug offences was “unconstitutional.” However, instances of specific legislations still upholding death penalty still subsist. For example, the Piracy Bill has a provision of death penalty, as does the Narcotic Drugs and Psychotropic Substances Act of 1985. Clearly, the Union Legislature seems decided about retaining capital punishment, at least for the time being. 

Every time a crime captures the national imagination, there is a hue and cry to overhaul the legal system, and bring in place more stringent norms. But what is often not really emphasised is the lax implementation. There is hardly a sustained clamour for a better managed police system of the country. There is no serious effort at a fast-paced judiciary to clear the immense backlog of cases. It is this laidback implementation that is often hidden behind the grandiose idea of ‘rule of law.’ Accountability of public institutions and functionaries needs to be strengthened. It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty. 

(Abhishek Tripathy is a lawyer.) 

Source: http://www.thehindu.com/opinion/op-ed/the-danger-in-precedents/article5726541.ece [accessed 24 April 2014]

Landmark Supreme Court case

The Supreme Court case of Santosh Bariyar v State of Maharashtra was decided on 13 May 2009 in a judgment delivered by Justice S.B Sinha. The case is a landmark decision by the Supreme Court which places strict limitations on the circumstances in which a death sentence may be handed down.

The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.

Some excerpts of the Santosh Bariyar judgment are set out below:

The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.

The Court observed that:

“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.

One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:

“Bachan Singh laid down a fundamental threshold in the following terms:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Court went on to observe that:

“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:

that the case belongs to the rarest of rare category;

and the alternative option of life imprisonment will just not suffice in the facts of the case”

The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.

The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:

“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.

The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp

Tears of Blood written by Death row inmate

This is an article written by Santosh Bariyar who was on death row. Very recently his death sentence was commuted to life imprisonment by the Supreme Court.

(Translation of Hindi)
To hang a person to death after death sentence is given and to wait for the punishment to occur are two different things. If we are given death sentence immediately then all the complaints, sadness are gone in a while, even the family cries for some time and then get back to normal life.

But waiting for this sentence for a long period is a sad thing. We can feel the noose around our neck all the while. Sometimes we are also hopeful that we will be able to live life. But there are also times when my whole body shivers when I think of about being hanged. After all what can we do? We have to live life smiling or by crying… atleast for the family we have to smile.

More than us it is our family that goes through this mental agony. They must be thinking day and night when our child will be freed from this trap. Keeping the small child in mind, they make good food during festivals but neither my parents nor my wife can eat a morsel of it. How do they face the neighbours and society everyday? They all must be thinking that, “Their son or her husband must be a ruthless criminal or else why would the State give him death penalty?” our family must be listening to all the taunts of the society and must be crying for us day and night. Thinking about our family my heart cries out tears of blood…but what can we do? We cannot do anything afterall…

We have placed all these sorrows in our hearts and have made them the strength to move on ahead with life. We also have tiny hope that someday our country or the leaders of our country will also take into consideration sinners like us. We will be fortunate if one day we are allowed to return to the society?