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Indian Judiciary and the Issue of Capital Punishment

By Sujato Bhadra

Let us begin this brief deliberation with some admitted facts and information in respect to the issue of death penalty in India.

1. Like most of countries (including countries where death penalty as a form of judicial punishment is abolished), in India the retentionist’s discourse (retributive and deterrent value concept, public conscience and demand, cultural diversity, etc.) continues to dominate public opinion.

2. Being emboldened by this public perception, the legislative wisdom – ruling and opposition alike – has expanded the scope of capital punishment either by amending laws or by enacting new laws to provide this punishment in certain cases of rape and other ‘serious crimes, like ‘terrorism’ etc.

3. The culture of vengeance and violence is prevailing in Indian society and the Indian State continues to be very violent and aggressive. Archaic concept of Roman law – life for life, eye for eye – has a strong grip over the people of India. Hence, despite the historical fact that India has a long tradition of ahimsa in a religion like Buddhism, and despite the position of the Father of the Indian nation, Mahatma Gandhi’s and others against the application of death penalty and practice of nonviolence, the arguments for abolition of death penalty has , till today, failed to gain much ground on Indian soil.

4.  Although India is a signatory to the International Covenant of Civil and political Rights (1966), and, therefore, is committed to phase out the application of death penalty, India as we have already mentioned, expanded its scope under various pretexts. It is pertinent to note, way back in 1997, India abstained when the Commission on Human Rights of United nations passed a resolution calling for an end “to judicial executions in the world.”

5. Historically, in British colonial India, death penalty was the rule, life imprisonment was the exception. In post- colonial India, after the relevant reforms in Indian criminal laws in 1955, life imprisonment became the rule, death penalty became the exception; reasoning have to be provided by the judge of the trial court, as  required by section 354(3) of Cr.P.C, as amended in 1973.

Judicial structure

In matter of murder or other serious crimes, if the death penalty is awarded by the trial court/sessions court, then even if the convict refuses or fails to appeal against this sentence, the appeal will mandatorily be made by the State before the division bench of High Court of the concerned province, as stipulated in section 366 of Criminal Procedure Code. Final appeal court is the Supreme Court of India, where appeal has to be made for the convicted in the form of Special Leave Petition [SLP) for full hearing. There is one exception to this rule: if the lower court declares the accused persons as not guilty, and in event of appeal, if the High Court reversed the judgment of the lower court, then there will be an automatic appeal by the State to the Supreme Court, as stipulated in section 379.

Against the pronouncements by the apex court of capital punishment, the convict or the person on death row is constitutionally entitled to make an appeal for mercy to the President or to the Governor as the case may be; upon rejection, the convict has a last legal right to ask for judicial review of the rejection of clemency petition. But this was shamelessly denied to Maqbool Butt in 1984, who was tried by a British colonial Ordinance –The Enemy Agents ordinance, 1943 – and recently to Afzal Guru, the prime convict of parliament attack.

Constitutional Validity of the Death Penalty

The study of death penalty was once undertaken by Law Commission of India as far back in 1967 and in its 35th report, it justified for retention of the death penalty. The view was concurred by the five judges of the Supreme Court of India, when the matter of constitutional validity came for hearing. Whether the right to life is an inherent right and the State must not be given the power to extinguish any life – irrespective  of his or her crime – and whether  this is violative of article 21 and article 14 since  two persons  found guilty of murder  could be treated differently, the said judicial bench in the well known case , Jagmohan Singh vs State of U. P (1993), refused to  be persuaded by the  decision of  the U.S. Supreme Court in Forman vs. Georgia in this regard, and argued for the retention of death penalty. The judges cited different social conditions and low intellectual level of the public as grounds of argument.

In 1980, there was a renewed challenge in Bachan Singh v. State of Punjab to the constitutional validity of the capital punishment. Political situation in India in the post-emergency period (1977 onwards) was different; liberal democratic atmosphere was evident and respect for rights of citizens became the cry of the day. Judicial activism was accepted and heavily appreciated. Yet, even in these developments, the four judges out of five judges (Justice P.N. Bhagwati being the sole dissenting voice) upheld the constitutional validity of the death penalty, but severely limited the scope of this punishment. The majority acknowledged the human rights jurisprudence and developments in international laws in this regard. They  held , inter-alia: A real and abiding concern  for the dignity  of human life postulates  resistance  to taking  a life  through  law’s instrumentality. That “ought not to have done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” [(1980) 2 SCC at751).

And till today, this remains the unchanged judicial position in India. This judgment undoubtedly affirmed again that the death penalty was the exception, not the rule. Subsequently, the Supreme Court  in another famous case, Machhi Singh v. State of Punjab[(1983)3 SCC470], directs the trial court to draw up a balance sheet of the aggravating and mitigating circumstances and opt for the maximum punishment and considering all these factors, if the judge then finds no other alternative, then he can hand down the death penalty.

Problems relating to application of “rarest of rare cases

Justice P. N. Bhagwati in his long, erudite dissenting judgment has refuted all the arguments advanced by his learned co-judges and this judgment is still the silver lining in Indian Judiciary. Human Rights movement in India has justifiably questioned such criteria for pronouncing death sentence. How to judge “rarest of rare cases”? In terms of plan and conspiracy? Or, in terms of execution of the capital crime? Or, in terms of method of destruction of evidence of the crime? There is no definition, no explanation to this end.

Various studies reveal that even the exercise of balancing the aggravating and mitigating circumstances is rarely performed.

Third, as no uniform criteria could be laid down, and as no objective evaluation of legislative thresholds exists, the question of death penalty is not free from the subjective vagaries of the judges. One erudite judge, Mr S.B. Sinha (now retired), raised this difficulty in testing the criteria of rarest of rare cases: “What would constitute a rarest of rare must be determined in the fact situation defining in each case. We have also noticed here different criteria have been adopted by different benches of this court, although the offences are similar in nature … No sentencing policy in clear cut terms has been evolved by this court.” Hence, we can safely observe that this lack of systematic principles governing sentencing gives birth to the system of judicial whims vis-à-vis capital punishment. A Research scholar, A.R. Blackshield, who examined seventy judgments  of the Indian Supreme Court  between 1972 and 1976 in which judges had to decide on whether to uphold death penalty or commute to life imprisonment, concluded that  “arbitrariness and uneven incidence are inherent  and inevitable in the system of capital punishment in contemporary India.”

Extensive study by Amnesty International and PUCL (Tamil Nadu) on supreme Court judgments in death cases between 1950- 2006, has shown conclusively that it is the judges’ subjective discretion that eventually decides the fate of an accused. They never consider the issue of                   death penalty as human rights issue, beyond the pale of law, (save and except few judges like Bhagwati, Krishna Iyer, A.P. Shah). As a result, we often find that it is largely cases involving the poor and the down-trodden, who are victims of class bias, which culminate in an imposition of death penalty. Here one hardly finds a rich or affluent person going to the gallows. Therefore, the death penalty, as it is used now, is discriminatory. It strikes against the disadvantaged section of the society, showing its arbitrary and capricious nature – thus rendering it unconstitutional. Not to mention, how many innocent were victims of Indian judicial murders. The former President of India, APJ Kalam, suggested the Government of India to launch an open debate over the issue of retention of death penalty in Indian statute books. It went unheeded. He wrote, in his Turning Points, “We all are the creatures of God. I am not sure a human system or a human being is competent to take away a life based on artificial and created evidence” (134) His observations were based on his study of social-economic background of the convicts whose clemency petitions were pending before him.

Pic-credit: Here

Sujato Bhadra, a renowned Human Rights Activist, is Professor, Dept of History, SDBI (C) College, West Bengal, India

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