Persuasive argument against death penalty (Book)

THE ASIAN AGE. | JAYANT TRIPATHI

Published : Apr 7, 2019, 3:47 am IST

In India, from the time of Raja Nand Kumar’s case (1775) to the decision of the Supreme Court in the Bachan Singh case (1980).

Demons and Demigods: Death Penalty in India, by Aparna Jha Oxford University Press, Rs 495.

In the interests of fair disclosure, I should, at the outset, state that I believe that the legal system, with its scheme of graded punishments, with different punishments set out for different crimes, is fair and just, and that includes the imposition of capital punishment for certain crimes. And yet, I am now reviewing a book that is opposed to the imposition of capital punishment. 

Aparna Jha, a lawyer practising in the Supreme Court, has drawn upon her experience as a lawyer for four young death row convicts, telling their story, and the story of the research carried out by her during the case, to come out with an eminently readable book. 

The author, who has written an anthology of short stories as well as a novel, has used her skills as a storyteller to take us through some of the leading cases on the death penalty, describing the actual crimes and associated violence in an almost poetic manner. She makes no attempt to mitigate the severity of the violence that was inflicted upon the deceased, with gruesome details being penned down. And yet, the author believes that the perpetrators of such violence deserve to live, that the death penalty, being nothing but state-sanctioned murder, is wrong, and makes out an impassioned case for not depriving a human being of life. As the last words in the book say if a person is subsequently found innocent, “Can they ever be brought back to life? Then why kill them?”

“The quality of mercy” to quote the Bard, is “…an attribute to God himself”. Mercy, however, cannot absolve the guilty, it merely mitigates the punishment. Over the centuries debate has raged about the desirability or efficacy of the death penalty. Opponents and proponents of the penalty have clear battlelines drawn between them. In India, from the time of Raja Nand Kumar’s case (1775) to the decision of the Supreme Court in Bachan Singh case (1980), the application of the death penalty has travelled from being the fitting punishment for the crime of forgery to a punishment in the exceptionally heinous “rarest of the rare” murders. And now the debate has moved on from the death penalty as a punishment in the rarest of the rare cases, to the abolition of the punishment altogether.

There is no crime in India where the only possible punishment is death. The gravest offences such as murder, mutiny, rape and killing of a child below 12 years of age, abetment of suicide of a minor, abetment of sati, etc., carry the death penalty. However, in all of these cases, the death penalty is one of alternate punishments. The law takes into account that for the same offence, different punishments may be possible. In other words, there is already an inherent protection for the wrong-doer to plead mitigating circumstances to seek a lower penal consequence.

The application of the death penalty has been diluted further still by judicial pronouncements, and now it is only in the rarest of the rare cases, after considering all mitigating circumstances that the penalty is awarded. 

Take for example one of the cases discussed in the book — the case of Dhananjoy Chatterjee, a young security guard in an apartment complex in Kolkata, who raped and murdered a teenaged school-going girl who lived in the apartments which he was supposed to guard. There were no eyewitnesses to the murder, but the circumstantial evidence was so strong that the death penalty was upheld by the Supreme Court. In a case where a young girl is savagely murdered by the very man who is supposed to protect her, should issues of the poverty of the parents of the murderer, or the possibility of reform, be factors to reduce the sentence to life imprisonment? The author thinks they should. But the author’s argument is based on a moral premise that to kill is wrong, and the killing of Dhananjoy Chatterjee by the state is as wrong as Dhananjoy Chatterjee’s killing of the girl who had her whole life ahead of her.

The morality of the law is a subject which is once again contentious and the source of a never-ending debate. However, the fact remains that the death penalty is on the statute books, and till such time it remains there, it is the bounden duty of courts to administer it, within the parameters of the law and judicial precedent. For a judge of any court, even the highest, to say that he or she would not sentence a person to death on moral principles, would be reducing the law to mere words on paper, reducing its efficacy and setting a precedent that may have severe repercussions. On the other hand, if the civil society was able to convince parliamentarians that the death penalty should be removed from the statute books, that would be a completely different thing. 

If you are looking for a book that contains an intellectual debate on the pros and cons of capital punishment, drawing upon the various theories of punishment and justice, and citing facts and figures, this book is not it. It is, however, a useful starting point for an overview on the subject, since the author does refer to other points of view as well as some of the global perspectives on the death penalty, albeit from her point of view. 

The interesting thing is that this book made me pause, introspect and review my thoughts and stand on capital punishment. I would say that any book that can make any other person review his or her own beliefs, deserves to be read, whether you agree with it or not. My views are still unchanged, but reading the book did make me think again.

The reviewer is a lawyer practising in Delhi.

Source: https://www.asianage.com/books/070419/persuasive-argument-against-death-penalty.html (accessed on 30 May 2019)

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]