By Dr. S Saraswathi
Justice Kurien Joseph, on the eve of his retirement, delivered a judgment commuting the death sentence of a convict to life imprisonment, and recommended review of the need for death penalty especially its purpose and practice. This sentence was unanimously passed by three judges in a triple murder case, but the two other judges disagreed with the need for review of retaining capital punishment.
Justice Joseph said that the courts had been imposing the death penalty “arbitrarily and freakishly” all these years – an observation with which the other two judges did not agree. Capital punishment, in his opinion, had failed to achieve “any constitutionally valid penological goals”.
He said that without a psychological and psychiatric assessment and evaluation, it would not be proper to hold that there is no possibility or probability of reform.
The guidelines for awarding death sentence mention that life imprisonment is the rule and death penalty an exception to be inflicted only when other options are inadequate. The circumstances of the offender must be taken into account along with those of the crime. Aggravating and mitigating circumstances must be weighed to strike a just balance.
A three-judge bench recently held that death row convicts deserved an explanation why the apex court concluded that they deserved to be hanged for their crime. For, there was a tendency to dismiss appeal against death penalty given by a lower court without assigning any reason. The present Chief Justice is reported to have remarked in a recent case that even when a crime is heinous or brutal, it may not still fall under the category of “rarest of rare”.
It was in Bachan Singh versus The State of Punjab, the theory of “rarest of rare cases” was evolved by the Supreme Court in 1980 to award death penalty by which the mandatory death penalty for murder provided in Section 302 of the IPC was amended. It also spelt out some guidelines to determine the nature of that criteria. It was a case relating to dastardly murder of two girls to wreak vengeance on their mother. However, there are no consistent criteria laid down by the Supreme Court for death punishment.
Death sentence is retained in the IPC for several offences under Sections 120 B, 121, 132, 302, and 396. The crimes relate to waging war against the State, dacoity and murder. Increasing instances of rape cases including minor girls and even children have led to more stringent punishments. In 2018, Section 376A was inserted in the IPC to provide for death penalty for rape of minor girls.
However, death sentence is not mandatory for any offence leaving considerable amount of discretion with the judges. Suggestions to make it mandatory for certain offences were ruled out by the Supreme Court both in India and the US. Attempts to abolish capital punishment by law made in 1956, 1958, and 1962 did not succeed. The dissenting judgment of justice PN Bhagwati in 1980 case suggested that death penalty to be valid should be a unanimous verdict as it is irreversible and there is no way of rectifying any error in the judgment.
Three issues are involved in death punishment — desirability in view of other available options, constitutionality determined on legal basis, and proportionality relating to the gravity of the offence and the way it is committed.
Death penalty has been abolished in the UK and several democratic countries in Europe, Canada and, Australia in the last 50 years, and contrastingly revived in Sri Lanka and Pakistan showing that there are certain valid grounds for differences in the question of abolition of this extreme punishment. The US has retained the punishment, but 15 States in that country do not have capital punishment.
Drug-related offences are awarded death sentence in many countries – Afghanistan, Bangladesh, Brunei, China, Egypt, UAE, Singapore, Sri Lanka, Thailand and many others caught in the trap as producing, manufacturing or transit countries.
In 2007, the Third Committee of the UN General Assembly passed a non-binding Resolution for a global moratorium on execution. It states, “There is no conclusive evidence of death penalty’s deterrent value and that any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable”. The call for moratorium on death penalty was repeated by the UN General Assembly in 2008 and 2010. Nations retaining death penalty are required to provide the UN Secretary-General with information about the use of and safeguards taken in this extreme punishment.
In India, the Law Commission has dealt with the question of death penalty in several reports. The 35th Report of the Commission in 1967 was devoted to “capital punishment” and 187th Report of 2003 on “execution of death sentence” did not recommend abolition of this extreme punishment, but dealt more with humane methods of executing the sentence. In 2015, the Commission noted that there was no principled method to remove arbitrariness from capital sentencing and called for review of this punishment. India then was one of the 59 nations that retained death penalty, while 140 had abolished it, and 20 others had it in the statute book without using.
Organised crime is increasing due to misuse of several technological innovations. Underworld dons, hired criminals, middlemen in crime industry are a growing lot and terrorism has become an international operation. Countries that have not abolished death penalty find themselves in a position where they cannot afford to do away with this severe punishment whatever humanitarian ideas may preach or prompt. What is possible is to give all chances for the offenders to reform and reserve the punishment for the utterly useless cases of positive danger to the society from the criminal.
Terrorist attacks, mob violence, planned political murders, and brutal killings to wreak personal vengeance or satisfy personal desires are increasing despite death penalty. Mob lynching and honour killing have grown. Judicial authorities have to believe in preventing recurrence of crimes by inflicting punishment commensurate with the severity of crimes in the interest of safety and security of the society.
Cases involving specific individual victims and crimes against masses have to be distinguished. Already there are provisions for post-appeal reviews and curative petitions against death sentences. There is provision for appeal for pardon to the President of India.
Controversies also surround over remission of death sentence and mode of execution of death. They are different from abolishing death sentence altogether and hence should be governed by liberal laws providing maximum concession to the convict in keeping with progress in humanitarian ideas.
Awarding death penalty can best be left to the trial courts before which all facts and circumstances of the incidents are presented and argued. As long as there is no accepted definition of “rarest of rare cases”, the discretion of the judges cannot be removed. We have to put trust in the judgement of the judges who definitely cannot have any pleasure in sending anybody to gallows, but will spare everyone who has even an iota of inclination to reform. Possibility of miscarriage of justice should be totally eliminated by liberal application of the benefit of doubt.Indeed, there is reason to debate the issue again.—INFA
(The writer is former Director, ICSSR, New Delhi)