Lethal Lottery: The Death Penalty in India - A study of Supreme Court judgements in death penalty cases 1950-2006

by Amnesty International India, Tamil Nadu & Puducherry.
Citation
Title:
Lethal Lottery: The Death Penalty in India - A study of Supreme Court judgements in death penalty cases 1950-2006
Author:
Amnesty International India, Tamil Nadu & Puducherry.
Editor:
City:
Publisher:
Amnesty International India
Year:
2008
Volume:
No. of Volumes:
Edition:
Pages:
Series Volume:
Series Editor:
Series Title:
Translator:
Language:
English
URL:
DOI:
LCCN:
OCLC Number:
License
Select License
ISBN:
Last Updated:
April 19th, 2013
Abstract

PREFACE

By K. G. Kannabiran

Senior Advocate President – National Executive, People’s Union for Civil Liberties

On the morning of 30th December 2006, those of us living in countries of the eastern hemisphere were startled to witness the unforgettably morbid and macabre sight of a very composed Saddam Hussein being prepared for his execution. Rarely, in recent memory, has the world been witness to an execution within minutes of the event. While the imminence of the execution was no secret, the turning of the entire world into a stage to endlessly replay the actual hanging has been an unparalleled event in recent memory. Continuous replay of the event provoked repugnance in many; it equally strongly stoked the voyeuristic in some, fed the morbid curiosity of others, and gave a diabolic twenty first century expressive form to the practice of revenge through ‘blood letting’, in a manner no fictional creation could as evocatively or forcefully ever have.

The sentence of death awarded to Saddam Hussein, the former President of Iraq by an interim Iraqi Government still under the supervision of US and allied forces was, like all judicial sentences of death, pure and simple pre-meditated judicial assassination. While political trials with international ramifications are a special case, it remains absolutely essential to contest the validity of all death sentences as a form of punishment. It is also important to recognise that the extent of power enjoyed by a state (and the extent of its fear of dissent) determines the character and conduct of state institutions entrusted with dispensing justice and thereby the harshness of punishments meted out.

The practice of executing felons for wrongs done to society has been with us for centuries and putting an end to this practice will be a Herculean task. Many of us in India have been fighting each death sentence as it arises but we have not succeeded in securing abolition as a matter of principle. The apex Court has ruled that courts should award the death sentence only in the ‘rarest of rare’ cases, but if every court trying a person for a capital offence finds that the case before it is the rarest, the progress of the abolitionists will be illusory. The study that follows should leave no one in any doubt about the arbitrary way in which the Supreme Court has upheld or commuted death sentences using the ‘rarest of rare’ formula and the judicial equivalents that preceded it.

The neutrality of law and the clinical detachment of professional members of the Bench and the legal profession has always been an opaque and invalid assumption in India. As Justice Holmes of the US Supreme Court pointed out over a century ago, the life of law is not logic. Any understanding of law and justice would comprehend “the felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed and unconscious even prejudices judges share with their fellow men… The decision will depend upon a judgment, an intuition more subtle than any articulate major premise.” In its unexpurgated sense, this applies to India now where examples of the partiality of rule of law institutions abound. Criminal cases such as those of Jessica Lal and Priyadarshini Mattoo in which the accused (with powerful connections) were acquitted at the trial stage are recent examples of the vulnerability of the criminal justice system to pressures unrelated to the legal system. Unless the police and investigative machinery are fully cleansed, it would be a crime to talk about deterrent or retributive sentencing and employ the death penalty as a form of punishment.

The current state of impunity enjoyed by the Indian state and its investigative agencies should make us pause to think whether those awaiting execution should at all be executed. The 1984 Sikh massacre in Delhi, the post Babri Masjid Mumbai killings, the death and destruction that followed the Coimbatore blasts and the killing of thousands of Muslims in Gujarat are all examples of the state’s suspension of the rule of law during and following incidents of massive violence. Does this not itself undermine the credibility of the death sentence as a principle of rule of law? In the words of

1

A S Zuckerman (1989) , “The willingness of the public to accept the authority of the criminal court as a dispenser of punishment depends on the extent to which public believes in the moral legitimacy of the system. The morality or fairness of a system of adjudication hinges on many factors, such as the impartiality and incorruptibility of the judiciary. Amongst these must also be numbered a publicly acceptable judicial attitude towards breaches of law. A judicial community that is seen to condone, or even encourage violations of the law can hardly demand compliance of its own edict.”

In all scientific and social formulations there will always be irreducible uncertainty, the possibility of inevitable error leading to unavoidable injustice. That we provide for irreducible uncertainty is most evident in law itself.  The entire law on evidence does not require establishment of truth but proof of facts leading to an event. Implied in this effort is only an approximation. The evolution of the concept of justice implies that an accused is presumed not to be guilty unless proved otherwise and that proof should be beyond all reasonable doubt. When the ruling principle in criminal jurisprudence for centuries has been to

1 AAS Zuckerman, ‘Principles of Criminal Evidence’, pp. 344, Clarendon Press, Oxford, 1989.

save an innocent even if it should mean that a hundred guilty escape, how can one be so dogmatic about the absolute guilt of the accused and with an air of finality award a death sentence? It is these principles of irreducible uncertainty and the indeterminism built into criminal jurisprudence that have been what I consider to be the civilizing agent of human thought and action.

With an imperfect tool to judge the guilt or otherwise of a person accused of a capital crime, what is being questioned is the certainty of the adjudicator who hands down a death sentence. To me it appears to be a subversion of the system of Rule of Law as it has evolved through the centuries. Justice Harry A Blackmun of the United States (Callins vs. Collins, 1994) put the objection succinctly in a death penalty case, declaring that the “death penalty experiment has failed.” He went on to say “from this day forward I no longer shall tinker with the machinery of death… The inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants… It seems whether a human being should live or die is so inherently subjective, rife with all of life’s understandings, experiences, prejudices, and passions, that inevitably defies the rationality and consistency required by our Constitution.”

The campaign against the death penalty in India must also be a campaign against the impunity sanctioned to the criminal justice system itself. It should be a campaign for the spread of a Rule of Law culture where the habit of legality is not a mere positivist response and a blind obedience to law as mere authority, but a discriminating response which disciplines those authorities that deal with the liberties of the people, including that most sacred: the right to life.

PART I : The need to re-examine the death penalty in India

An editorial in The Times of India on 1st November 2006 poignantly set out India’s challenge by drawing attention to the fact that “a society consumed by outrage easily confuses punishment and revenge, justice and vendetta.” The article appealed to the nation to “…rise above sentiments of the day and dissect issues with the cold scalpel of reason, a scalpel that does not kill. It is about time we had a public debate on capital punishment, shorn of righteous, judgmental overtones.” The context of this call for a public debate on the death penalty was the case of Mohammad Afzal Guru, sentenced to death for his role in a conspiracy that led to an attack on the Indian Parliament on 13th December 2001.

The nationwide appeals by concerned citizens and members of the human rights community to commute the death sentence imposed on Mohammad Afzal Guru has been matched in equal measure by the demand of right wing political parties and groups allied to the Bharatiya Janata Party (BJP) for the immediate execution of Afzal without further delay. These demands have played on the fears of society about ‘terrorist’ violence, uncontrolled crime rates and the dangers that await society if the state is `soft’ on criminals and abolishes the death penalty. Closely linked to the decision of the executive on the mercy petitions in Afzal’s case, is the fate of numerous other death row inmates throughout the country who await decisions on their mercy petitions. With all legal possibilities for escaping the death sentence sealed, death row convicts spend every day not knowing if it will be their last. The challenge before the human rights community is therefore grim but compelling. At stake is not just the fate of numerous death row convicts; it is about our vision of society, about the sense of values and ethos we believe in and are committed to.

The present study is a critical analysis of all reported judgments delivered by the Supreme Court of India after 1950 (when the Indian Constitution came into effect, establishing the Supreme Court as the highest court of the land) in which death sentences have been considered. The study was initiated because of a vital gap that affected those campaigning against the death penalty: the absence of comprehensive analysis of various facts relating to the death penalty. While in the last 30 years the campaign has evolved copious literature on the ethical and moral arguments in favour of eliminating the death penalty, there exist woefully few researched studies on the subject; especially about the vagaries of judicial arbitrariness that makes the death penalty virtually a ‘lethal lottery.’ This part of the report seeks to set the scene for this study by commenting on the global and national context in which the campaign to abolish the death penalty has developed in the past half decade in India.

1. A global move towards abolition

Through numerous mechanisms the international community has become increasingly clear about its rejection of the death penalty. In 1966 for the first time nations, of the world adopted an international Convention seeking to regulate the use of the death penalty via Article 6 of the International Covenant on Civil and Political Rights (ICCPR).

In its General Comment on Article 6 of the ICCPR, the UN Human Rights Committee has stated that Article 6 “refers generally to abolition [of the death penalty] in terms which strongly suggest... that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life…” 1Since the adoption of the ICCPR, steps have been taken to develop a legally binding instrument that requires the abolition of the death penalty. Accordingly, the UN General Assembly adopted the Second

3

Optional Protocol to the ICCPR which entered into force in July 1991. Sixty-four States have ratified the Second Optional Protocol to date (as of November 2007). The omission of the death penalty as a punishment for

th

2 General Comment 6 on Article 6 of the ICCPR, adopted on 27 July 1982, para 6.

3 UN General Assembly Resolution 44/128 of 15th December 1989. The Second Optional Protocol provides for the total abolition of the death penalty but allows state parties to retain the death penalty in times of war if they make a reservation

crimes dealt with under the Rome Statute of the International Criminal

4

Court, despite the fact that the Court has jurisdiction over extremely grave crimes: crimes against humanity, genocide and war crimes, was yet another global signal that the death penalty was itself a grave crime.

In the past three decades, great strides have been made to realize a world free of executions. In 1980, only 25 countries had abolished the death penalty for all crimes. That figure now stands at 90, with a further 11 countries having abolished the death penalty for “ordinary” crimes (but retaining it for offences such as treason or offences under military law). Thirty-two countries are considered by Amnesty International to be “abolitionist in practice” in that they retain the death penalty for ordinary crimes such as murder but have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions, meaning that a total of 135 of the world’s nations have turned their back on capital punishment in law or practice.

The vast majority of the world’s executions today occur in China. Although death penalty statistics are not released by the Chinese government, based on its monitoring of public reports available, Amnesty International calculated that at least 1,010 people were executed during 2006, although the true figures were believed to be around 7,000 to 8,000.

The trend towards abolition of the death penalty is clear. Outside China an execution is becoming an increasingly rare event. Amnesty International recorded around 500 executions worldwide during 2006 outside China. Vast swathes of the world are now execution-free. In Africa only six countries executed in 2006; Belarus is the only European country that continues to use the death penalty; and the USA is the sole state in the whole of the Americas to have carried out any executions since 2003. Only Asia and the Middle East remain largely unmoved by

4 This reflected the framework established under the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda established by the UN Security Council in 1993 and 1994 respectively.

the worldwide trend away from the use of the death penalty.

There can be little doubt that our world is moving towards being execution-free. The question is when this will be achieved and how many more will have to die before then. Some of the leaders of countries that continue to execute talk about their desire to abolish capital punishment. In March 2007 a member of the Iraqi government told the media, “We are working at the present moment in order to pave the way to eliminate capital punishment in Iraq, after restricting it to the largest possible extent.”

Even in China, progress is being made. On 1st January 2007 an amendment to the court system came into effect requiring all death sentences to be approved by the Supreme People’s Court. Speaking in the UN Human Rights Council in March 2007, a Chinese delegate, La Yifan, said, “I am confident that with the development and the progress in my country, the application of the death penalty will be further reduced and it will be finally abolished.”

India remains balanced between the global trend away from the death penalty and those countries that continue to execute. Despite priding itself on a highly evolved ‘rule of law’ system, India has steadfastly clung to the punishment even though it acceded to the ICCPR in 1979. Continuously refusing to enter into any form of debate or discussion with national or international bodies over abolition, the Indian state has shown an apparent disdain for world opinion by retaining a ‘wall of silence’, signalling its intention by failing to respond to the quinquennial UN surveys on the death penalty and more worryingly passing new laws that provide for the death penalty. Using the 1980 majority ruling of the Indian Supreme Court in Bachan Singh v. State of Punjab as cover and the final word on the subject, the Indian state has assumed a moralistic and conservative tone, arguing that the death penalty is required to instil fear as a means of deterring future criminals, and to safeguard society against rising crime and acts of terrorism.

Despite this, the present hiatus on executions would indicate a lack of official enthusiasm for the death penalty. The government must resist any pressure to resume executions and take a regional lead by educating the public as to the futility of capital punishment and the importance of human rights protection.

2. The Indian legislature and abolition of the death penalty

It is noteworthy that the Indian state has not only failed to sensitise the general public about the concerns of the world community over the arbitrariness and innate inhumanness of the death penalty; it has also failed to initiate any study to examine the concerns that Supreme Court judges like Justice Bhagwati have raised in the course of judicial pronouncements. To the contrary, the Indian Government has preferred to hide figures on the use of the death penalty while other institutions, including the National Human Rights Commission, have been either silent or ambivalent on the subject. The Law Commission of India – which prepared a report on the death penalty in 1967 and recommended its retention – has also not re-examined the issue some forty years on, preferring instead to focus on whether hanging is the most ‘humane’ way of executing prisoners. 5

Few are aware of India’s long history of anti-death penalty sentiments, stretching back to the pre-independence period. Way back in 1937, Mahatma Gandhi wrote, “I do regard death sentence as contrary to ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa. Under a State governed according to the principles of ahimsa, therefore, a murderer would be sent to a penitentiary and there given a chance of reforming himself. All crime is a kind of disease and should be

6

treated as such…” In an equally powerful prose, the veteran freedom fighter Jayaprakash Narayan wrote (referred to by Justice Bhagwati in his Bachan Singh dissenting judgment, at para 22):

th

5 Report No.187 of the 17 Law Commission of India, 2003. 'Mode of Execution of Death Sentence and Incidental Matters.' The Report in the section entitled 'incidental matters' - did however make some useful suggestions including a mandatory appeal to the Supreme Court in all capital cases.

th

6 The Harijan, 19 March 1937, referred to in Dalbir Singh v. State of Punjab, see above.

“To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away from their path and their mental condition be sufficiently improved to become useful citizens. In a minority of cases, this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man’s dignity and make society more human” (emphasis added)

The obduracy of the official establishment to enter into an open dialogue on the need to retain the death penalty has been matched by the calculated ‘unconcern’ exhibited by large sections of the political class. Apart from political parties that have taken clear positions on the retention of death penalty in the statute books, there are numerous others who refuse to be drawn into the larger debate, much less be seen to be espousing abolition. The campaign against the death penalty faces the challenging task of having to breach an ‘iron curtain’ of suspicion and hostility presented by an unsympathetic and conservative bureaucracy and a disinterested political class, both using the language of ‘constitutionality’ of the death penalty to deny the need for debate.

Beyond the courts of law, the campaign for abolition will have to focus its energies to convince the common citizen, find friends amongst the political class and discover new methods to convincingly show that the essential arbitrariness of the death penalty, and the possibilities of mistakes occurring in the judicial process are as real, if not more potent today, than when such concerns were originally raised in the Supreme Court 27 years ago at the time of the Bachan Singh case. 7

The urgency of the need to address the legislature was highlighted by

Bachan Singh v. State of Punjab (AIR 1980 SC 898). Hereafter referred to as Bachan Singh.

Lethal Lottery: The Death Penalty in India

Justice Y.K. Sabharwal just before he took office as the 36th Chief Justice of the Supreme Court of India in 2005, when in an interview he noted, “It [the death penalty] is a socio-political question and ultimately whether it is to be continued or not is a decision to be taken by the Indian Parliament.” In the same interview he also stated that he was personally opposed to the death penalty, but as a judge was required to enforce it where the law required. 8 He made a similar statement just prior to his retirement as Chief Justice on 13th January 2007. The focus on the legislature as the target for abolition has also been clearly asserted by his

9

successor, Chief Justice K.G. Balakrishnan. In fact such assertions have been made previously by the Supreme Court, for example in Dalbir Singh and Ors. v.State of Punjab (1979 3 SCC 745), when Justice Krishna Iyer observed that ‘the death sentence on death sentence’ is Parliament’s function.

The humanitarian ideal of abolishing the death penalty in independent India was articulated by a number of members of the Constituent Assembly during the drafting of the Indian Constitution between 1947 and 1949. Several members raised concerns about the arbitrariness inherent in retaining the death sentence when left to the vagaries of subjective satisfaction of individual judges, irrespective of the level of the courts hearing the cases. Interestingly, many members referred to their experiences as lawyers practising in criminal law that whatever the nature of procedural safeguards, there could never be any foolproof method to eliminate error. In a debate on 3rd June 1949 on the necessity of mandatory appeal to the Supreme Court, Pandit Thakur Das Bhargava spoke of his experience as a legal practitioner, arguing that in many criminal prosecutions there was a real possibility of innocents being prosecuted and sentenced. Another member, Frank Antony, experienced in handling numerous criminal murder trials, argued that, “any person who has handled criminal cases, particularly murder cases, will be able to testify from his personal knowledge to serious miscarriages of justice on account of misinterpretation of facts,

8 'Judicial Activism is a misnomer', Interviewed by J. Venkatesan, The Hindu,

25th October 2005.

9 rd

'No confrontation, says CJI designate', The Tribune, 3 January 2007.

tremendous diversity of conflict in the matter of legal interpretation. In India, in one High Court, in the case of two people where one inflicts a fatal injury while the other holds the deceased, both might be sentenced to death, while in another High Court, one might be sentenced for murder while the other may only be fined for having committed simple hurt.”10 He went on to support the view of Pandit Thakurdas that it was well known to practising lawyers that the possibility that innocent people were convicted in capital cases and sentenced to death was not unknown. In these circumstances the members argued in favour of automatic appeal to the Supreme Court in all cases where a death sentence was handed down by a High Court. This was seen as a protective provision until such time as the death penalty was abolished.

One member of the Constituent Assembly, Prof. Shibbanlal Saksena, had been a death row convict himself. Sentenced to death for his role in the 1942 independence movement, he occupied a condemned cell for 26 months. As he explained in the Assembly, during this period he had seen 37 persons being hanged, amongst whom, he pointed out, he had reason to believe that seven persons were fully innocent of the crimes they were hanged for. Talking during the debate on the need to provide a constitutional provision providing for an inherent right to appeal to the Supreme Court in cases where the death penalty was imposed, he pointed out,

“I have seen people who are very poor, not being able to appeal as they cannot afford to pay the counsel. I see that Article 112 says that the Supreme Court may grant special leave to appeal from any judgment, but it will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves of the benefits of this section. Therefore, in the name of those persons who are condemned to death and who though innocent were hanged in my presence, I appeal to the House that either in this article or in any subsequent article there must be made a provision that those who are condemned to death shall have an inherent right of appeal to the Supreme Court (emphasis added).”

10 Constituent Assembly of India, Vol. 8, 3rd June 1949.

Dr. Ambedkar concluded the debate by highlighting his personal opinion that,

“rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather support the abolition of the death sentence itself. That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.” 11

Dr. Ambedkar however suggested that the finer details of whether there should be a mandatory appeal to the Supreme Court in criminal cases involving the death penalty and other issues be left to a future Parliament to legislate. Dr Ambedkar’s suggestion was taken up – despite the fact that many members had an unequivocal personal opinion about the need to abolish the death penalty entirely – and the Constituent Assembly collectively decided to leave the issue of abolition to a future Parliament to legislate on, if necessary. This stand was not ambivalent but one that implicitly validated the existence of the death penalty in criminal law. By consciously deciding not to restrict in any way, the death penalty provision, those framing the Constitution lent an aura of morality, respectability and legitimacy to capital punishment.

Various attempts to abolish the death penalty were made subsequently through the introduction of private members bills in both houses of Parliament. These included one introduced in 1956 by Mukund Lal Agrawal in the Lok Sabha, and another in 1958 by the actor-parliamentarian, Prithvi Raj Kapur in the Rajya Sabha. A couple more followed in 1961 and 1962 introduced by Savitry Devi Nigam (Rajya Sabha) and Raghunath Singh (Lok Sabha) respectively. However,

11 Constituent Assembly of India, Vol 8, 3rd June 1949.

positions against the death penalty voiced by Nehru or previously by Mahatma Gandhi did not translate into any official stand against the death penalty by either the Congress Party or the Congress government. Under pressure in Parliament, the government did however agree to forward transcripts of the constitutional debates to the Law Commission and seek its opinion.

The 1967 report of the Law Commission on Capital Punishment was eventually tabled in Parliament in November 1971. However, despite accepting that opposition to the death penalty was based on consistent and sound research, the Law Commission eventually concluded that due to the “conditions of India” including “disparity in the level of morality and education” and the “paramount need for maintaining law and order... India could not risk abolishing capital punishment.”12 The Law Commission’s report effectively ended any possibility of an early legislative end to the death penalty.

In effect, the fact that those framing the Constitution and the Law Commission did not see it fit to abolish the death penalty became one of the most important moral foundations for the courts to uphold the validity of the death sentence in Indian law. In turn, the fact that the Supreme Court had not struck down the death sentence as unconstitutional became the rationale for the Indian state to deny any need to re-examine the relevance of death penalty provisions in Indian law, much less to actually abolish it. The manner in which the two pillars of the legislature and the judiciary have acted as an inter-locking barrier to abolition was highlighted in the judgment of the Supreme Court in Jagmohan Singh v. The State of Uttar Pradesh (AIR 1973 SC 947) which noted that if the legislature decides to retain capital punishment for murder it will be difficult for the court to question the propriety and wisdom of the legislature in retaining death sentences in the absence of objective evidence. The Court enumerated the different occasions when bills were moved in the Lok Sabha and Rajya Sabha and took the position that “all this goes to show that the representatives of the people do not

12 Law Commission of India, '35th Report on Capital Punishment' 1967.

welcome the prospect of abolishing capital punishment. In this state of affairs, we are not prepared to conclude that capital punishment as such is either unreasonable or not in the public interest.”

Breaking this moral and legal mutuality of interests in retaining the death penalty is thus one of the important tasks before all those who believe in the essential immorality of the death sentence.

3. The Constitutional challenge to the death penalty

The Bachan Singh case of 1980 is important not just for the fact that the majority ruling of the Constitution Bench of the Supreme Court about the constitutionality of the death penalty continues to determine the legality of the issue to date, with no challenge in sight. It is equally important to understand the context in which the case came up for hearing before a Constitution Bench. The 1970s was a period of ferment within the Indian Supreme Court. This period, that witnessed the Supreme Court’s sanction of Indira Gandhi’s declaration of Emergency

– in the ADM Jabalpur judgment (ADM v. Shivkant Shukla AIR 1976 SC 1207) – also witnessed the emergence of ‘Public Interest Litigation.’ 13 In relation to the death penalty there were a number of judicial innovations by the Court which sought to reduce the harshness of the law. The issues framed in Bachan Singh unambiguously questioned these interpretations brought about by judges including Justices Krishna Iyer, Chinnappa Reddy, Bhagwati and Desai. A majority of the Bench in Bachan Singhchose to take a more conservative line in interpreting legal provisions relating to the death penalty. The Supreme Court in Bachan Singh identified the issues as (i) whether the death penalty provided for in Section 302 IPC was unconstitutional, and (ii) whether the sentencing procedure provided for in Section 354(3) CrPC invested the court with unguided and untrammeled discretion and allowed death sentences to be arbitrarily or freakishly imposed. The majority ruling, written by Justice Sarkaria, dismissed the challenge that

13 In the 1980s the Supreme Court recognized that a third party could directly petition the Court and seek its intervention in matters of “public interest” where another party's fundamental human rights were being violated.

Lethal Lottery: The Death Penalty in India

the death penalty was unconstitutional, in violation of Articles 14, 19 and 21, and found that the discretion of the courts, being subject to corrections and review, could not be said to be arbitrary or freakish.

One of the most quoted parts of the majority ruling is the paragraph below, which illustrates the underlying perspective of the majority:

“If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the peoples representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware as we shall presently show they were of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggest retention of death penalty … it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest”.

The global context has changed markedly since the majority ruling in 1980. As highlighted earlier in this chapter, over two thirds of the nations of the world have abolished the death penalty in law or practice. Using public opinion as the rationale for retaining the death penalty is no longer acceptable. The rationale of deterrence is increasingly being questioned, considering the situation in abolitionist countries where there has been no resurgence of crime following abolition and the continuing lack of scientific evidence that the death penalty deters crime more effectively than lesser punishments.

Unfortunately, all policy discussion on the legality and constitutionality of the death penalty in Indian law begins and ends with this majority ruling of four judges of a five-judge Constitutional Bench. Little attention is paid to the dissenting judgment. 14 Justice Bhagwati was the sole dissenting judge in Bachan Singh. He differed from the other four judges with respect to almost all of their arguments. Based on both Constitutional principles as well as the arbitrariness of the sentencing process, he pointed out the dangers inherent in retaining the death penalty in law.

On the issue of deterrence and retribution: Both the majority decision in Bachan Singh as also Justice Bhagwati in his dissenting judgment elaborately discuss the issue of the deterrent value of the death penalty. Both rulings discussed how there can be said to be three broad categories justifying death sentence: (i) reformation, (ii) retribution, and

(iii) deterrence. On the issue of retribution Justice Bhagwati referred to the UK Royal Commission on Capital Punishment 1949-1953 which concluded that “modern penological thought discounts retribution in the sense of vengeance.” He quoted from Arthur Koestler’s authoritative treatise on the death penalty – Reflections on Hanging – that abolitionists have seldom acknowledged that deep down in our personalities there are times when we seek to take revenge and want to take an ‘eye for an eye’. But he pointed out that despite this, we would rather not have such a person dictating our law. Ironically, a large number of recent rulings of the Indian Supreme Court appear to reflect such a tendency to seek revenge and retribution (see Section II.2.3.3 below).

On the issue of deterrence, Justice Bhagwati quoted the statement by the eminent US criminologist Professor Thorsten Sellin, cited by the Royal Commission on Capital Punishment, that “whether the death penalty is used or not and whether executions are frequent or not, both death penalty states and abolition states show [homicide] rates which suggest that these rates are conditioned by other factors than the death penalty”, and the Royal Commission’s own statement that “the general conclusion which we have reached is that there is no clear evidence in any of the figures we have examined that the abolition of capital

14 Bachan Singh v. State of Punjab (Minority Judgment) (AIR 1982 SC 1325).

punishment has led to an increase in the homicide rate, or that its reintroduction has led to a fall.” 15 It is thus clear that we need to have a fresh assessment of the efficacy of the death penalty in deterring crime and criminals.

Arbitrariness and the judicial process: Justice Bhagwati held that not only was the death penalty against national and international norms and therefore unconstitutional, he also pointed out that in practice the death penalty process created a context of arbitrariness and that it was unsafe to provide powers to any set of judges since a fool-proof manner of administering criminal justice systems could never be developed. He also pointed to the dangers of depending on judges to administer laws and follow procedures providing for sentencing guidelines. As he explained, “It is, therefore, obvious that when a judge is called upon to exercise his discretion as to whether the accused shall be killed or shall be permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and preconceptions, his value system and social philosophy and his response to the evolving norms of decency and newly developing concepts and ideas in penological jurisprudence.”

Expanding on the theme, Bhagwati highlighted the reality of different attitudes and responses of judges to issues that were brought before them. In his inimitable style, Bhagwati pointed out:

“One judge may have faith in the Upanishad doctrine that every human being is an embodiment of the divine and he may believe with Mahatma Gandhi that every offender can be reclaimed and transformed by love and it is immoral and unethical to kill him, while another judge may believe that it is necessary for social defence that the offender should be put out of way and that no mercy should be shown to him who did not show mercy to another. One judge may feel that the Naxalites, though guilty of murders, are dedicated souls totally different from ordinary criminals as

15 Para 47, pg. 1362, Bachan Singh v. State of Punjab (Minority Judgment) (AIR 1982 SC 1325); paras 64-65, Royal Commission on Capital Punishment 1949-1953, Report, London, Her Majesty's Stationery Office, 1953.

Lethal Lottery: The Death Penalty in India

they are motivated not by any self-interest but by a burning desire to bring about a revolution by eliminating vested interests and should not therefore be put out of corporal existence while another judge may take the view that the Naxalites being guilty of cold premeditated murders are a menace to the society and to innocent men and women and therefore deserve to be liquidated. The views of judges as to what may be regarded as special reasons are bound to differ from judge to judge depending upon his value system and social philosophy with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.

As regards the actual conduct of investigations, Bhagwati identified a number of areas where problems abounded. As he pointed out then, methods of investigation are crude and archaic, a context as truly representative today in 2008 as it was in 1982. The police, as highlighted by numerous official bodies, are by and large ignorant of modern methods of investigation based on scientific and technological advances and still resort to third degree torture as a way of gathering evidence. He explained in clear terms:

“Our convictions are based largely on oral evidence of witnesses. Often, witnesses perjure themselves as they are motivated by caste, communal and factional considerations. Sometimes they are even got up by the police to prove what the police believes to be a true case. Sometimes there is also mistaken eyewitness identification and this evidence is almost always difficult to shake in cross-examination. Then there is also the possibility of a frame up of innocent men by their enemies. There are also cases where an overzealous prosecutor may fail to disclose evidence of innocence known to him but not known to the defence. The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility …” 16

The concerns raised by Justice Bhagwati about the infirmities inherent in the criminal adjudicatory process reflected concerns raised by many members of the Constituent Assembly thirty years ago (see above).

16 Ibid. Para 24, pg.1344.

Justice Bhagwati warned:

“Howsoever careful may be the safeguards erected by the law before death penalty can be imposed, it is impossible to eliminate the chance of judicial murder… the possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man”

This was a clear recognition of the inherent problems within the administration of criminal justice that render the system of sentencing individuals to death arbitrary. Unfortunately the majority of the judges did not support this view and held the death penalty to be constitutional, directing instead that it should not be used except in the ‘rarest of rare’ cases. The study that follows only serves to highlight that despite this ‘rarest of rare’ formulation, these problems continue to render the process arbitrary.

4. The Supreme Court as guardian of justice

The subject of death penalty can arouse intense passion, vehemence and fervour. Just as intensely as anti-death penalty campaigners stress the inherently inhuman nature of the punishment and the real possibility of errors leading to the judicially mandated murder of an innocent person, there are numerous others – including Supreme Court judges – who firmly believe that the death penalty acts as a deterrent and protects society from the abhorrent actions of a few.

The Supreme Court has called the death penalty a “just desert” for particular crimes 17 and a punishment that reflects “society’s cry for justice against the criminal.” 18 This legally couched language found in many judgments is revealing about the perception amongst a number of

17 State of M.P. v. Babbu Barkare [(2005) 5 SCC 413]. 18 Surja Ram v. State of Rajasthan (AIR 1997 SC 18).

judges that their role is not just as arbiters of just law but also as sentinels of morality and justice. The language used is explicit for often the above formulation is accompanied by the reminder that to commute will be yielding to “spasmodic sentiment, unmitigated benevolence and misplaced sympathy.” 19 That a majority section of the community supports the death penalty is assumed and is seen to be a factor supportive of retaining the death penalty.

“Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.” 20 What is remarkable in such judgments is the apparent view that anything less than the death sentence would be a betrayal of social interests and would wreak severe damage on the fabric of trust and confidence in rule of law. This is apparent in the Supreme Court’s judgment in Jashubha Bharatsinh Gohil and ors. v. State of Gujarat [(1994) 4 SCC 353] where the court reiterated that, “any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.”

The court continues to use these arguments. In Union of India and ors. v. Devendra Nath Rai [(2006) 2 SCC 243] the court reaffirmed the principles culled from Bachan Singh and refined in Machhi Singh and ors. v. State of Punjab [(1983) 3 SCC 470] and reiterated arguments in favour of imposing the death sentence set out in Devender Pal Singh v. State, N.C.T. of Delhi and anr. [(2002) 5 SCC 234] which ruled that when the collective conscience of the community is sufficiently shocked by a crime, it will expect the holders of judicial powers to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.

19 Govindasami v. State of Tamil Nadu (AIR 1998 SC 2889). 20 State of M.P. v. Babbu Barkare, (AIR 2005 SC 2846).

Lethal Lottery: The Death Penalty in India

A marked feature of most Supreme Court rulings is the rigid positions that judges, especially in the lower judiciary, can take in cases involving capital crime. What has rarely been examined, despite Justice Bhagwati pointing to it, is the varying ways in which different judges have responded to crime in general. Justice Bhagwati’s wry comments that what is a heinous, cruel and diabolical act to one judge is just one more incident of crime to another stands more true today than when made 25 years ago. The current study clearly shows that the determination of a crime as ‘shocking the collective conscience’ has many nuances and differences and is influenced in the ultimate analysis by the social and other perspectives of judges (see II.2.3.4 below).

The Death Penalty as Cruel, Inhuman and Degrading in South Africa

While the body of Supreme Court rulings in India reflect a call to be resolute and have the moral strength to award death sentences unimpeded by personal predilections, worldwide there has been a progression in the campaign for abolition of the death penalty. Perhaps one of the most significant judicial events in this regard is the judgment of the Constitutional Court of South Africa in 1995 declaring the death penalty for murder to be unconstitutional as it constitutes “cruel, inhuman or degrading treatment or punishment”. One of the most comprehensive judgments considering worldwide positions on capital punishment, the unanimous ruling in The State v Makwanyane and Machunu offers a scholarly analysis of the different legal strands underlying the issue and a summary of the position taken by different national courts on the subject (Case No. CCT/3/94, judgment dated 6th June 1995). The unanimous judgment saw the entire court of 11 judges adding their own opinions, expanding on different dimensions of the debate on the death penalty. One scholar writing about the judgement points out that the lengthy material constitutes a rich repository of judicial authority on the issue of capital punishment as well as “the interpretation to be accorded to such fundamental rights as the right

to life, right to equality, the right to dignity and protection against cruel, inhuman or degrading treatment or punishment.” 21

One of the strongest arguments put forward by the judges is on the issue of arbitrariness in the sentencing process. The President of the Constitutional Court, Justice Chaskalson, highlights the likelihood that indigent defendants represented by inexperienced and poorly paid counsel are more likely to receive death sentence compared to those who have the money to retain experienced attorneys and counsels who are paid to undertake the necessary investigation and research to defend their clients. Acknowledging that such arbitrariness is inherent in all criminal proceedings, Chaskalson points out that in view of the finality of the death sentence, the consequences of injustice become irrevocable. Justice Ackermann uses stronger language to stress, “for one person to receive the death sentence, where a similarly placed person does not, is in my assessment of values, cruel to the person receiving it. To allow a chance, in this way, to determine the life or death of a person, is to reduce the person to a cipher in a sophisticated judicial lottery. This is to treat the sentenced person as inhuman.” (Para. 166)

Justice Sachs draws attention to the issue of emotional, moral and pragmatic contentiousness which the debate on death penalty generates. Elaborating on the theme of the death penalty in the context of `The Right to Life and Proportionality’, he points out, “Decent people throughout the world are divided over which arouses the greatest horror: the thought of the state deliberately

21 William A. Schabas, 'South Africa's New Constitutional Court Abolishes the Death Penalty', Human Rights Law Journal, Vol. 16, No. 4-6, page 133. Schabas provides an overview of the issues raised in the different opinions of the judges on the issue of cruel, inhuman and degrading treatment or punishment, including

(i) international and comparative law, (ii) issue of arbitrariness, (iii) position on public opinion and evolving standards of justice, and (iv) the role of death sentence in terms of deterrence and retribution; the right to life, equality and dignity.

killing its citizens, or the idea of allowing cruel killers to co-exist with honest citizens. For some, the fact that we cold-bloodedly kill our own kind, taints the whole of our society and makes us all accomplices to the premeditated and solemn extinction of human life. For others, on the contrary, the disgrace is that we place a higher value on the life and dignity of the killer than on that of the victim” (Para 348). He further points to those pragmatists who emphasise not the moral issues but the “inordinate stress that capital punishment puts on the judicial process” and argues that from a practical point of view capital punishment offers an illusory solution to crime and actually detracts from truly effective measures to protect the public.

Perhaps the most articulate opinion that is particularly relevant to the current debate in India relates to the issue of the weight of public opinion favouring the death penalty. Citing the opinion of Justice Powell in the US judgement of Furman v. State of Georgia, Justice Chaskalson stresses that the assessment of popular opinion is essentially a legislative, and not a judicial function. Justice Ackermann points to the poignantly etched position on the subject put forwarded by Justice Blackmun in the US in Callins v. Collins when he stated in his dissenting judgement, “... although most of the public seems to desire, and the Constitution seems to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it must not be administered at all” (Callins v. Collins, cert. Denied, 114 S.Ct. 1127, 127 L.Ed. 435 1994).

5. ‘Junking the Machinery of Death’ – In conclusion

Justice Blackmun (referred to above) was in fact part of the minority that voted in favour of retaining the death penalty in the famous case of Furman v. Georgia (1972) in which a majority of the US Supreme Court concluded that the death penalty was cruel and unusual punishment under existing statutes because it was randomly applied. When the US Supreme Court reversed that decision in Greg v. Georgia (1976), Justice Blackmun was part of the majority. In that sense he had been a strong supporter of the death penalty. It is against this background that his comments in Callins v. Collins that the death penalty experiment has failed assumes significance. 22 The full observation of Justice Blackmun was:

“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavoured – indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.”

Many Indian judges have arrived at similar conclusions. While Justice Krishna Iyer and Justice Bhagwati are well known for their opposition to the death penalty during their time on the Bench, even Chief Justice Chandrachud (who was part of the majority Bench in Bachan Singh) changed his mind about the efficacy of the death penalty after he had retired. In 1989 Justice Chandrachud said, “Life is never static. It moves on. I believe that the time is now ripe for asserting that the death penalty ought to be abolished… It would not be far from right to say that the death penalty neither deters the criminal who is determined to kill, nor

22 See 'Twenty Years of Capital Punishment: A Re-evaluation' by Richard C. Dieter, Executive Director, Death Penalty Information Center, June 1996. Statement in 1989 by former Chief Justice of India Y.V Chandrachud made available to Amnesty International, see Amnesty International, India: The Death Penalty, London: 1989, AI Index: ASA 20/13/89, pp. 5-6.

does it act as a fear in the mind of a marginal criminal who is always optimistic that he will not be found and if found not be convicted of murder and if so convicted will not be sentenced to death … Since the death penalty has served no purpose, neither logic nor experience would justify its continuance on the statute book…The death sentence… must be discarded once and for all.” 23

However, the death penalty is not the concern of judges alone. The inefficiency of the investigative agencies of the state, the nefarious links between the police, bureaucracy, political class and mafia groups which has become stronger and more entrenched, all combine to create a socially regressive situation, which if not handled sensitively will push the country back in terms of progressive values and perspectives. The irony is that it is these structural problems – that lead to abuses within the criminal justice system and result in it being both ineffective and arbitrary – that are not being addressed. Instead, more stringent laws that provide for the death penalty are suggested as a means of addressing concerns about increases in crime and ‘terrorist’ violence.

The questions are these: How do we persuade a majority of our fellow citizens to support the call to join the 135 other nations of the world who have, either directly or indirectly, abolished the death penalty as an archaic, inhuman and cruel vestige of the past? How do we make people appreciate the sentiments that made Spain turn abolitionist in 1995 when it declared that “the death penalty has no place in the general penal system of advanced, civilized societies ... what more degrading or afflictive punishment can be imagined than to deprive a person of his life”? How do we impress upon people that abolishing the death penalty is not indicative of a weak state or based on impractical, romantic notions, but part of a consciously adopted stand by a particular society and people? How do we encourage people to respect the sentiments that echo in the declaration of Justice Chaskalson of the South African Constitutional Court, who stated that, “The rights of life and dignity are the most important of all human rights and this must be demonstrated

23 Statement in 1989 by former Chief Justice of India Y.V Chandrachud

made available to Amnesty International, see Amnesty International,

India: The Death Penalty, London: 1989, AI Index: ASA 20/13/89, pp. 5-6.

by the State in everything it does, including the way it punishes criminals.”

More information on the death penalty to assist an informed discussion is certainly one way forward. While there has been a lot of research on the subject outside India, this has not impressed the Supreme Court much. In upholding the constitutionality of the death penalty in Jagmohan Singh v. The State of Uttar Pradesh (AIR 1973 SC 947), the Supreme Court sharply observed, “There is a large volume of evidence compiled in the West by kindly social reformers and research workers to confound those who want to retain the capital punishment.” Such language suggests a dismissive and condescending attitude towards excellent research on the part of the Court. That attitude is sadly reflected in the response of other institutions and officials and represents an obstacle to rational discussion. Yet the Supreme Court was correct in noting the absence of a study on the subject in India.

This report by Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu & Puducherry arose from a need to fill a vital gap in the campaign for abolition, notably the absence of any detailed study of the judicial process relating to death sentences. Interwoven into an analysis of all the available judgments delivered on the subject of the death penalty by the Indian Supreme Court from 1950 till late 2006, are the themes that have characterized the death penalty debate. It is our hope that this study, by clearly demonstrating the arbitrariness and ultimate unfairness of the death penalty in India, will help introduce greater objectivity into the debate and will help persuade many people that our society will be better off by outlawing the punishment than by retaining it.

The choice before us as a society is this: do we step backward, and accept still greater restraints on our liberties, thereby increasing the possibility of judicial errors and judicially mandated murders, or do we step forward and join the company of other nations, who have accepted the vision of a humane legal system in which the death penalty is anathema, a vestige of the past? Are we, as a nation of over a billion people, going to join the majority of nations of the world in outlawing the death penalty, or are we going to continue legally murdering our citizens?

 
  • Recommend Us