Death penalty conundrum

Subjectivity in imposition of the death penalty suggests that courts put a moratorium on such sentences until the legislature provides better sentencing guidelines

Sughosh Subramanyam & Sanskruti Samal | February 28, 2019 2:40 pm

Recently, the Supreme Court observed that it was ‘reluctant’ to endorse death penalty even after years of its existence. Death penalty is a subject of perennial controversy in India. We may remind that India is one of the 39 countries that continues with the death penalty. When it comes to actual imposition, of late judges at the highest levels of judiciary have been showing restraint, considering the vagueness in the law concerning the choice between death sentence and life imprisonment.

Photo: Getty Images

As much as the law outwardly seems to have refined, yet the choice of imposition largely rests on the judge’s discretion. There are umpteen precedents which point that the judge’s reasoning for imposition of death penalty are often rhetorical and filled with subjectivity leading to inconsistent results. Although we may seem critical here, yet our system provides some safeguards by asking well-qualified judges to make this choice rather than public juries, as happens in United States of America or farcical military courts of Pakistan.

Let us first contextualize the conundrum we face; our Constitution provides for ‘right to life subject to the procedure established by law’ under Article 21. Supreme Court once read the same strictly by holding that life can be extinguished by the Government if procedures are promptly followed. However, those days are long gone, and our Supreme Court has expanded right to life in leaps and bounds. Presently it is not enough for the procedure which takes away to be fair, just and reasonable alone, rather the substantive law itself needs to be fair as well. However, it may not be out of context to mention that our founding fathers, as evident from the Constituent Assembly debates, left the implications of death penalty to the wisdom of the legislature. (refer to speeches of Prof. Sibhu Lal Saxena, Pandit Thakur Bhargav Das or Dr. B. R. Ambedkar on 3 June 1949).

In any case we may remind that the constitutionality of death penalty has been unsuccessfully challenged a couple of times before the Supreme Court. The last time the constitutionality of the death penalty was challenged was in Jag Mohan Singh and Bachan Singh Case, almost four decades ago. Considering the changes to jurisprudence, the Supreme Court needs to re-visit this area soon. Viewed from a different angle, usually a punishment is given to serve multiple purposes, and chief among them is the deterrence it creates in society. There have been many academic studies which indicate that the death penalty does not serve as a good deterrent mechanism. In any case, India voted on 22 September 2017 in UN resolution (A/HRC/36/L.6) against the motion to abolish the ‘death penalty’. Moreover, the number of death penalties granted in 2018 is the highest since 2000 and is pegged at 162. This raise is due to change in the law, which allows death penalty for non-homicidal crimes as well.

Before we go any further, it is relevant to note the statutory changes adopted by the legislature when it comes to death penalty jurisprudence. To start the narration of the law as it existed, Section 367(5) of the Code of Criminal Procedure, 1898, held that death was the norm for offences and judges had to give special reasons to impose life imprisonment. In 1955 an amendment was introduced whereby the terms of imprisonment and the death penalty were equal possibilities in a capital case. After 1973 with the introduction of present Code of Criminal Procedure, under Section 235(2), judges need to provide special reasons for imposition of the death sentence. The legislative trend shows complete reversal of the law. In this context there is no gainsaying that the recent judicial trend shows an inclination towards abolition.

Most recent cases which raised eyebrows are the Dhananjay Chatterjee case and Nirbhaya case. The criticism has been stark, and some have gone to the extent of calling these ‘judicially authorized violence’. However, we are of the opinion that the criticism stems from non-uniformity in exercise of judges’ discretion, which provides for personal preferences and views, public as well as personal, to play a significant role in making the choice. It is more disturbing to note that Supreme Court is aware of this and has acknowledged this disparity in multitude of cases starting with Shankar Kisanrao Khade Case. Further the 262nd Law Commission Report highlights the extent of judge-centric arbitrary approach under the present system of death penalty, wherein they observed that the constitutional regulation of death penalty against arbitrary application has failed. It was further observed therein that such a rigid categorisation of the offence is arbitrary as it treats dissimilar cases on an equal parameter, but sadly there exists no uniform principle to remove such arbitrariness from the judge made sentencing policy.

When the Constitutionality of death penalty is beyond reach as the same has been settled by two five judge benches of the Supreme Court, the issue which needs to be considered is ‘whether the death penalty has been applied unconstitutionally?’ There have been multiple cases having similar facts but have ended with dissimilar result, due to large discretion available with the Courts. Of more concern are cases wherein the Court accepts that the crime was depraved yet does not convince itself to give a death penalty. It is usually public pressure or other extraneous factors which tip the scales in favour of the death penalty. Coming back to the hesitancy of the Supreme Court in giving death penalty, there exists explicit acceptance by the judges of the Court itself that there is no judicial uniformity or basis for imposition of death penalty in India. The Standards laid out in catena of cases still provide for large discretion of judges. We may remind that the need for uniform application of criminal law is not a new one.

Ashokan Pillar VI in Delhi recognized the need for such uniformity centuries ago. Having considered a large body of judgments, we are of the opinion that courts in India have been inconsistently applying the death penalty as punishment which has led to unconstitutional and arbitrary application of law. It is time for the Apex Court to recognize the unconstitutional disparity in application of death penalty and put a temporary moratorium on its use until the legislature provides for better sentencing guidelines for the judiciary to apply. In the meanwhile, we need to reflect as to whether ‘mercy is a charity of a judge’ or ‘leniency is a virtue of civilized society’? A good starting point would be to analyze the last dissent of Justice Kurian Joseph, wherein he observed that death penalty was unconstitutional in India.

(The writers are, respectively, a practicing advocate and a Research Assistant at the Supreme Court of India.)

Source: https://www.thestatesman.com/supplements/law/death-penalty-conundrum-1502735501.html (accessed on 29 May 2019)

Is capital punishment effective in bringing down crime rates?

written by Narsi Benwal December 29, 2018

Mumbai: Even if the death sentence is legal and constitutionally valid, it is not the punishment for any crime. The history has proved how capital punishment has failed to be deterrent in the society as, despite convicts being hanged, crimes continue to take place in the society.

The debate on the abolition of death sentence has caught pace once again after the Bombay High Court, last week, confirmed the capital punishment of Chandrabhan Sanap, who had raped and killed Esther Anuhya, a software engineer. The judgment delivered by the bench of Justices Ranjit More and Bharati Dangre also refers to the observations of Justice Kurien Joseph of the Supreme Court, who sparked the latest debate on the death sentence. In a judgment, Justice Joseph delivered on his retirement day, he expressed the need of the hour to review the if death penalty as a punishment is necessary, especially its purpose and practice.’

The death sentence is vehemently opposed by advocate Navkiran Singh, a human rights lawyer, who thinks India will require at least one century for abolishing capital punishment. While speaking exclusively to The Free Press Journal, Singh said, “No punishment is deterrent to others as nobody cares. Why kill? Will hanging a person bring down the crime rates? The problem is we are not trying to find out the reasons as to why people are resorting to crime.” “We as a society are too good than that of western countries. At least our rehabilitation system still works. We do not have a large number of repeat offenders as compared to that of the western world. Still, we are continuing with this punishment whereas they (western countries) have abolished it,” said Singh, the general secretary of Lawyers for Human Rights International (LHRI).

The LHRI is a worldwide organisation fighting for human rights. It strongly demands the abolition of death punishment from India. According to Singh, Indians need to learn from Rahul and Priyanka Gandhi, who pardoned the killers of their father and former PM Rajiv Gandhi. “We live in a country where reactions are immediate. Ours is an immature democracy. We need to learn a lot from Rahul and Priyanka (Gandhi) how they pardoned killers of their father. I think making citizens understand this will take another century,” Singh added. “One has to look at the fact that even if death sentence is imposed on certain persons, will the crime rates come down? Take example of Delhi gang rape case wherein death has been pronounced and even confirmed by the top court. Still we can see rape cases being reported daily,” Singh said.

Justice (retd). P B Sawant of the Supreme Court, however, thinks death sentence must be given only in specific cases which leaves no room for any other punishment. “I believe death is the only punishment for serial killers, contract killers and so on. These are basically persons who do not think or hesitate even for a second before killing a human being. Such people deserve such a punishment,” Justice Sawant said. Justice Sawant further opined that in cases of gang rape or death after rape, death sentence is the only option. “Such offences need to be stopped and the same can be stopped only when most deterrent punishment is imposed on the wrong doers. Also, even if one accept the argument that there can be an alternative to death sentence, I do not think there can be a stern punishment than this,” said Justice Sawant, who had sent a serial killer to gallows in 1970s, when he was the judge of the Bombay High Court. “There is no other punishment as stern as death. Also, there is no point in letting such people live in the jails. Thus, death sentence cannot be totally abolished,” Justice Sawant said.

Source: https://www.freepressjournal.in/mumbai/is-capital-punishment-effective-in-bringing-down-crime-rates/1424515 (Accessed 29 December 2018)

Death Row Inmates: Scaling Down Sentences (India)

December 16, 2018

Recent court judgments have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts waiting on death row

By Vipin Pubby in Chandigarh

Among the last judgments that Justice Kurien Joseph delivered before his retirement last month was one that commuted the death sentence of a murder accused to life imprisonment. In a minority judgment delivered on November 28, Justice Joseph noted that it was high time the imposition of death as a punishment, however heinous the crime, be reviewed. The two other judges on the bench agreed with him in commuting the sentence to life imprisonment, but differed on the issue of the constitutionality of capital punishment.

Public opinion in the country on the abolition of the death penalty remains sharply divided but some recent judgments of the Supreme Court and High Courts have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts on death row. Courts are increasingly attempting to usher in reforms and are prodding the government to review some archaic laws dating back to the British era.

The Punjab Jail Manual, for instance, specifies that “every prisoner condemned to death is to be confined in a cell apart from all other prisoners, and is to be placed by day and by night under the charge of a special guard. No person can communicate with him without the authority of the Superintendent. The prisoner condemned to death is only permitted to occupy the courtyard of his cell for half an hour each morning and evening”. Taking cognisance of the provision, a division bench of the Punjab and Haryana High Court had earlier this month abolished the practice of keeping death row inmates in solitary confinement in Haryana jails. The High Court said that the rule was without authority of law and amounted to additional punishment. In its order, the Court called the provision “anarchic, cruel and insensitive”, reflective of “a colonial mindset”, and violative of Articles 20 (2) and 21 of the Constitution.

In a 111-page judgment, the Court said the practice “amounts to torture and is violative of a person’s basic human rights”. The bench comprising Justices Rajiv Sharma and Gurvinder Singh Gill also said the “convict shall not be segregated/isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial process. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time, i.e. 2-3 days”. The order came as part of a judgment commuting the death sentence of three persons convicted by a Mahendergarh court for the rape and murder of a nine-year-old in 2014 to a mandatory 20-year term without remissions.

The court order for “abolishing” the rule is specific to the “practice” adopted by jail authorities in Haryana. However, the bench did not pass any order to remove the provision from the Punjab Jail Manual, which has been adopted by Haryana. Removal of the provision will require the Punjab government to make amendments to the Jail Manual, or the court, acting on a legal challenge, to quash the provision. The division bench passed the verdict in response to appeals filed by three convicts against the death sentence awarded to them and the murder reference sent by the trial court for confirmation by the High Court. The advocates representing them also pointed out that the convicts had been sent to solitary confinement immediately after being sentenced to death.

Last month, Justice Joseph along with Justices AM Khanwilkar and DY Chandrachud took up for review a case concerning capital punishment. The review petition related to a case wherein the special leave petition filed against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006. The bench had dismissed the case without hearing it. Under the norm, the court need not give any justification for not hearing a case as it is assumed that it has made up its mind before the start of hearings. The three-judge bench deciding to reopen and review the earlier decision of the Court in such a case was perhaps unprecedented. Earlier in 2014, a Supreme Court bench of then Chief Justice of India P Sathasivam and Justices RM Lodha, HL Dattu and Sudhansu Jyoti Mukhopadhaya, had commuted the death penalty of 1993 Delhi bomb blast convict Devender Pal Singh Bhullar to life imprisonment.

Justice Kurian Joseph

The bench said that because of the “unexplained/inordinate delay” of eight years in disposing of his mercy petition and on the ground of Bhullar’s “insanity”, it was allowing the curative peti­tion to commute his death sentence to life in prison. Bhullar was suffering from severe depression with psychotic features, as per medical reports. Significantly, Justice Sathasivam had also presided over the bench in the Shatrughan Chauhan case in January 2014, and the commutation of the death penalty for Rajiv Gandhi’s assassins earlier that year. In the former case, while commuting the death sentence imposed on the petitioners to imprisonment for life, the Supreme Court had validated the established principle that “unexplained/ unreasonable/inordinate delay in disposal of mercy petition is one of the supervening circumstances for commutation of death sentence to life imprisonment”. The Supreme Court had further observed that “insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment”. Citing that judgment in the Bhullar case, the Supreme Court had said: “We deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar to life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity of the accused.”

Source: http://www.indialegallive.com/constitutional-law-news/supreme-court-news/death-row-inmates-scaling-down-sentences-58464 (Accessed 25 December 2018)

Supreme Court commutes death penalty of Chhattisgarh man

By Express News Service |New Delhi |Published: November 29, 2018 5:27:43 am

The Sessions Judge, Durg, had sentenced Verma to death in June 2013, holding it as a rarest of rare case. The Chhattisgarh High Court confirmed the sentence on April 11, 2014.

THE SUPREME Court on Wednesday commuted the death penalty imposed on a Chhattisgarh man convicted of killing three people and attempting to kill a fourth, saying the question whether the accused was capable of reformation was not considered at the time of trial. “No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced… Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty,” a bench of Justices Kurian Joseph, Deepak Gupta and Hemant Gupta ruled while commuting appellant Chhannu Lal Verma’s sentence to life imprisonment.

The Sessions Judge, Durg, had sentenced Verma to death in June 2013, holding it as a rarest of rare case. The Chhattisgarh High Court confirmed the sentence on April 11, 2014. The incident dates back to October 19, 2011 when Verma entered the house of Anandram Sahu and caused fatal injuries to him, Sahu’s wife Firanteen Bai and daughter-in-law Ratna Sahu. He then entered another house and attacked a woman. The apex court relied on a certificate it received from the jail superintendent, which said that Verma’s conduct in jail had been good. “Thus, there is a clear indication that despite having lost all hope, no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed. That there is such a positive change on a death row convict, in our view, should also weigh with the Court while taking a decision as to whether the alternative option is unquestionably foreclosed,” the bench said.

Writing for the bench, Justice Joseph referred to the 1980 judgment of a Constitution bench in the Bachan Singh Vs State of Punjab case in which the court had by a 4-1 majority laid down that the death penalty could only be imposed in rarest of rare cases. Justice Joseph wrote, “As held by the Constitution Bench in Bachan Singh.it was the duty of the State to prove by evidence that the convict cannot be reformed or rehabilitated. That information not having been furnished by the State at the relevant time, the information now furnished by the State becomes all the more relevant. The standard set by the ‘rarest of rare’ test in Bachan Singh is a high standard. The conduct of the convict in prison cannot be lost sight of. The fact that the prisoner has displayed good behaviour in prison certainly goes on to show that he is not beyond reform.”

Source: https://indianexpress.com/article/india/supreme-court-commutes-death-penalty-of-chhattisgarh-man-5469909/ (Accessed 25 December 2018)

Supreme Court upholds constitutional validity of death penalty

PTI New DelhiNovember 28, 2018UPDATED: November 28, 2018 21:09 IST

According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.

Has death penalty in the statute served as a deterrent for heinous crime?

A three-judge bench of the Supreme Court in a verdict on Wednesday expressed different opinions on this with one saying that the provision of capital punishment has failed to become a deterrent and the other two holding that a larger bench had already decided its continuance in the rarest of rare cases. A three-judge bench comprising justices Kurian Joseph, Deepak Gupta and Hemant Gupta commuted the death sentence of a man and awarded him life term for murdering three persons including two women. Though the three judges differed on the applicability of death penalty, they were unanimous in commuting the death sentence of Chhannu Lal Verma. Justice Joseph, who is to superannuate on Thursday, while pronouncing the verdict, read his views on the applicability of death sentence.

Justice Kurian Joseph

Referring to the 262nd report of the Law Commission, Justice Joseph said, "The constitutional regulation of capital punishment attempted in Bachan Singh versus State of Punjab in 1980 has failed to prevent death sentences from being 'arbitrarily and freakishly imposed' and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice." He also said that till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high. According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.

"Every death penalty case before the court deals with a human life that enjoys certain constitutional protection and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that," Justice Joseph, who wrote judgement for the bench, said. Justices Deepak Gupta and Hemant Gupta gave divergent opinion on the views expressed by Justice Joseph on applicability of death sentence and said a five-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had already held the constitutional validity of death penalty provided in Indian Penal Code. "In our view, since the Constitution Bench in Bachan Singh vs. State of Punjab, has upheld capital punishment, there is no need to re-­examine the same at this stage," justices Deepak Gupta and Hemant Gupta said. Justice Joseph, who wrote the verdict for the bench, also voiced his "anguishing concern" with regard to public discourse on crimes which have an impact on the trial, conviction and sentence in a case.

"The court's duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the court when it deals with the collective conscience of the people or public opinion. After all, the society's perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper," he said. Justice Joseph, while referring to the law commission report said that the court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses. "In this context, we may also express our concern on the legality and propriety of the people engaging in a 'trial' prior to the process of trial by the court," he said. Justice Joseph said that it has almost become a "trend" for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal. "This undoubtedly puts mounting pressure on the courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice," he said.

The three judges were unanimous on their view that the Chhattisgarh High Court in the case at hand has erroneously confirmed death penalty on the man without correctly applying the law laid down in Bachan Singh and other cases. "The decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest of rare case where the alternative option is unquestionably foreclosed," the bench said. It said that no evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. It noted that the superintendent of the jail has given a certificate that his conduct in jail has been good during the pendency of his appeal in apex court for past four years. "Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed," it said.

Source: https://www.indiatoday.in/india/story/supreme-court-upholds-constitutional-validity-of-death-penalty-1398308-2018-11-28 (Accessed 25 December 2018)