The Death Lottery

The case against capital punishment
Justice
The Supreme Court admitted on three different occasions, between 2009 and 2011, that it had erred in applying the ‘rarest of the rare’ doctrine laid down by its five-judge bench in 1980

I can recall the punishment of detention. I can make reparation to the man upon whom I inflict corporal punishment. But once a man is killed, the punishment is beyond recall or reparation. God alone can take life, because He alone gives it’

—MK Gandhi in Young India, October 1925

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Long before Mohammed Ajmal Kasab went to the gallows four years after his slaughter of scores of people in Mumbai, a villager from Banswara in Rajasthan named Ram Chander alias Ravji was hanged after an even faster trial. It was on 4 May 1996. He had been charged with the murder of his pregnant wife and three children on the night of 6 May 1993. In a fit of anger, not only did he hack his family to death, he also attacked his mother. A lower court sentenced him to death, the state’s high court upheld his sentence, the Supreme Court endorsed it, and the President of India at the time, Shankar Dayal Sharma, dismissed his mercy petition in less than a week (on 19 March 1996).

Ravji’s case could have gone down in history as a case that achieved closure in record time. Yet, it finds place in the history of Indian jurisprudence for an altogether different reason: for miscarriage of justice, in the opinion of a higher bench of the Supreme Court. The court had, in handing out its death sentence to Ravji, deviated from the guiding principles of capital punishment laid down by a Constitution bench in 1980.

What makes matters worse is that between 1996 and 2009, there were other cases in which the Ravji case was cited as a precedent for awarding death sentences. As a result, by 2009, when the Supreme Court admitted an error of judgment in that case, 13 people so sentenced were awaiting execution, and two had already been put to death: Surja Ram in 1997, and of course, Ravji himself the previous year. Despite the apex court’s admission of an error so profoundly grave, the other death sentences have not been overturned.

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Kasab’s execution may have attracted popular attention to a debate on the death penalty in India, but within legal circles, the debate had never died. In July, well before Kasab was secretly executed in Pune’s Yerawada Jail on the morning of 21 November, 14 eminent jurists, including former judges and chief justices, wrote to the President of India urging him to use his powers under Article 72 (to grant pardons, commute sentences, etcetera) of the Constitution to prevent miscarriage of justice in several capital punishment cases. These letters of appeal, similar in nature and content, were prompted by the apex court’s admission—on three different occasions between 2009 and 2011—that it had erred in applying the ‘rarest of the rare’ doctrine laid down by a five-judge bench of the Supreme Court in 1980.

Drawing President Pranab Mukherjee’s attention to the issue, the jurists asked for the sentences of the above mentioned 13 placed on death row between 1996 and 2009 to be commuted. ‘None of these cases involve crimes against the State. Further, the concerns raised in this statement have nothing to do with the larger debate about the desirability of retaining [the] death penalty. Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner,’ wrote retired Delhi High Court Chief Justice AP Shah, ‘Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.’

“The Supreme Court could have reopened those cases in an exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners,” says Justice Shah, whose views on the matter are in consonance with other letter writers, among them Justices PB Sawant, BA Khan, Bilal Nazki, PK Misra, SN Bhargava, BH Marlapalle, Prabha Sridevan, BG Kolse-Patil, Hosbet Suresh, KP Sivasubramaniam, PC Jain, Ranvir Sahai Verma and Panachand Jain.

In order to understand the error that the retired judges refer to, one needs go back to 1980. The Supreme Court addressed the issue of the constitutionality of the death penalty for the first time in 1973, in the Jagmohan Singh vs State of UP case. The Court ruled that the death penalty was constitutionally permissible if imposed after a fair trial in accordance with a ‘procedure established by law.’ In 1973, India’s Parliament enacted the Criminal Procedure Code (CrPC), laying down that in any judgment awarding a death sentence, the court must state specific reasons for choosing that penalty so as to limit its use to special circumstances. This reversed the earlier practice and capital punishment became the exception instead of the norm, as it was under the CrPC enacted by the British.

It was seven years later, in 1980, while adjudicating on the matter in the case of Bachan Singh vs Punjab, that the five-member constitution bench laid down its set of guiding principles on the death penalty: mainly, that it be applied only in ‘rarest of the rare cases’, but also that sufficient weightage be given to mitigating circumstances (pertaining to the criminal) along with aggravating circumstances (relating to the crime). Bachan Singh, who had been charged with the murder of three people after he had already served a life term in another case, had been sentenced to death this time round by a lower court.

In the Ravji case, however, while confirming the death sentence, a bench of two judges of the Supreme Court explicitly held, ‘It is the nature and gravity of the crime, but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.’ In doing so, the court held that the circumstances relating to the criminal are irrelevant and focused exclusively on the circumstances relating to the crime. This aspect of the decision in the Ravji case was in direct conflict with the Bachan Singh ruling that had come from a higher bench. However, on several occasions, the Supreme Court has invoked the Ravji precedent while awarding a death sentence. It was only in 2009, while hearing Santosh Kumar Bariyar vs State of Maharashtra, that the court noticed the conflict between Ravji and Bachan Singh.

The court observed: ‘The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to the rarest of rare category must conform to [the] highest standards of judicial rigour and thoroughness as the norm under analysis is an exceptionally narrow exception.’ It was while ruling on this matter that the court admitted the error: ‘We are not oblivious that the Ravji case has been followed in at least six decisions of this Court in which death punishment has been awarded in [the] last nine years, but, in our opinion, it was rendered per incuriam (ignored the statute of law).’

The SC noted six other cases where Ravji was followed and held that these decisions were also wrongly decided: ‘Shivaji vs State of Maharashtra, Mohan Anna Chavan vs State of Maharashtra, Bantu vs State of UP, Surja Ram vs State of Rajasthan, Dayanidhi Bisoi vs State of Orissa and State of UP vs Sattan are decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to [the] criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to [the] criminal are not pertinent.’

Following Bariyar’s case in 2009, two other judgments of the court (Dilip Tiwari vs State of Maharashtra and Rajesh Kumar vs State) from 2010 and 2011 referred to that deviation from the principles laid down in 1980.

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The matter does not end with the miscarriage of justice in those seven cases alone. In cases where capital punishment is awarded, choosing what is ‘rarest of the rare’ imposes a moral burden on the court because of its subjectivity. “There is bound to be inconsistency in applying the dictum,” says Justice AP Shah, “The inconsistency is inherent because the application is subjective. The SC’s attempt to regulate capital punishment has been unsuccessful on its own terms.”

Delivering the Naroda Patiya judgment, the special judge acknowledged that former Gujarat minister Maya Kodnani was guilty of leading a mob against a group of people of her constituency who she was supposed to protect. In all, 97 persons were killed. It can be argued that Kodnani was a sustained threat to society and the victims of the massacre were both innocent and helpless. Yet, the court chose to sentence her to prison for life. In a more recent case, a Hoshiarpur sessions court sentenced 35-year-old Jasvir Singh to death on 18 September on charges of killing his children and trying to kill his wife by setting his house on fire. The alleged crime was committed on 27 January this year, the case reached the sessions court on 30 July, and the death sentence was delivered after six hearings. The court relied on the sole witness, the man’s wife, in deciding the case and held that it fell under the category of ‘rarest of the rare’. The court’s order reads: ‘The convict being 35 years of age could well pre-conceive or understand the consequences of his misdeed. The convict being of such age in no manner could be described to be immature or that he could not distinguish between wrong or right before the moment. So in the considered opinion of the court it is a rarest of rare case. If [a] sentence lesser than capital punishment or death sentence is awarded, after serving out the same, he will come out of prison and may again turn to be a menace to society and he will remain a continuing threat to society. The attack by him was cold blooded and hence calls for deterrent punishment for this morality reprehensible or abominable crime. So it being a rarest of rare case only, death sentence will meets the ends of justice as it will also be an eye opener to others not to indulge in akin activities. I, therefore, sentence Jasvir Singh convict to Death for offence under Section 302 of Indian Penal Code and direct that he be HANGED BY THE NECK TILL HE IS DEAD.’

Singh’s lawyer Anil Walia says he will appeal against the verdict. “The court overlooked the fact that the accused himself had suffered 20 per cent burns in the fire and that his wife, with whom he had strained relations, was the only eyewitness. It is her version that has been solely relied upon.”

More recently, on 22 November, the Delhi High Court admonished the Delhi Police for shoddy investigation in the Lajpat Nagar blast case of 1996, while acquitting two accused who had been awarded death sentences by a lower court. The acquittal came after the two had already spent 13 years in jail. The two-judge bench pulled up the police for its ‘casualness and slipshod approach’ in investigating the case. (See accompanying story, ‘Geelani’s Litany’)

“The use of the death penalty in India is riddled with fatal flaws,” says Shailesh Rai, senior researcher at Amnesty International India, “Research conducted by Amnesty and the People’s Union for Civil Liberties has found evidence in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in death penalty cases.”

And it is not just rights vigil groups that have found arbitrary conduct in these matters. In a judgment as recent as last week (Sangeet vs Haryana), the SC has gone even further to admit that sentencing had become a ‘judge-centric exercise’. The court observed: ‘It appears to us that even though Bachan Singh intended ‘principled sentencing’, sentencing has now really become judge-centric as highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition…. Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences—whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment in cases such as the present is not unquestionably foreclosed.’

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The government of India appears to be in no mood to do away with the death penalty anytime soon. Though a majority of countries in the world have abolished capital punishment, India is among the 39 that recently opposed a United Nations resolution to that effect. Many argue that Indian society is not yet ready for doing away with hanging.

From a victim’s perspective, awarding death to the perpetrator of a heinous crime might seem just. But the Indian justice system is designed in principle to be reformative and not retributive. In practice, though, it lies somewhere in the middle. There is also the argument that, acting in criminal matters, the State represents the conscience of society as a whole. In the opinion of Former Solicitor General Gopal Subramaniam, “Death penalty in India is still a relevant punishment for the reason that there are certain kinds of crime which are so extreme and that are so abhorrent to the judicial conscience of civil society that death alone would be the just punishment.” However, he cautions that such a sentence must be awarded only if “no other punishment can be awarded”.

Yet, inordinate delays in executing those who are already on death row leads to a kind of double jeopardy, their trauma worsened by an almost unbearable uncertainty, which itself is an argument against capital punishment. The last man to be executed in India before Kasab was Dhananjay Chatterjee, a security guard accused of rape and murder, who was hanged in 2004. He spent 13 years in prison before he was hanged.

Earlier this year, three separate but similar cases were filed by death row convicts. In the cases of Mahendra Nath Das, Devinder Pal Singh Bhullar and Rajiv Gandhi’s assassins, their mercy petitions were pending with the President for more than a decade each. After the rejection of their pleas, the accused petitioned the SC for justice on account of an ‘unexplained delay’.

There is also the case of Sonia Punia. In February 2009, five years after she was sentenced to death on charges of having murdered eight members of her family, Punia wrote to the President to dismiss her mercy petition and execute her. ‘I don’t have any means to live and want to die once rather than dying with each passing minute,’ she wrote. Nearly four years later, she awaits death in Ambala Jail. But in cases like Ravji, where the court has admitted its error, it is too late to revoke the sentence.

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With additional reporting from Parminder Singh Bariana in Hoshiarpur