A debate has been raging over the inordinate delay in deciding cases of death penalty. Is it fair for a convict languishing in jail for years?
By Rakesh Bhatnagar
Justice delayed is justice denied. This was all too evident on January 21, 2014, when the Supreme Court (SC) in the Shatrughan Chauhan vs Union of India case commuted the death sentence of 15 convicts on the sole ground that their mercy pleas were rejected by President Pranab Mukherjee after an unacceptable, inordinate delay, ranging from five to 15 years.
Surprisingly, the verdict evoked serious debate on “what is inordinate delay” and whether a death row convict should suffer incarceration while waiting for a decision from the president. It was also a severe indictment of the home ministry which handles mercy petitions and forwards them to the president for his approval or rejection. In yet another case of delay, in February, the SC commuted the death sentence awarded to the three assassins of Rajiv Gandhi.
Mammoth exercise
Seeing the increasing number of such cases, a concerned Law Commission in May called for a reassessment of the death penalty and initiated a mammoth exercise to ascertain the views of all the stakeholders on the efficacy and justifiability of the death sentence, which is termed by some as ‘blood for blood’ jurisprudence, and by others as the only ‘deterrence’.
While the death sentence has been abolished in 140 countries, its constitutional validity in India has always been under contention. This was evident in 1980 when Justice PN Bhagwati registered a strong protest against it. Judicial imbalance is also evident when some gruesome cases are left out of the “rarest of rare” cases which call for death sentence. Former Chief Justice of India (CJI) AM Ahmadi had called for a stay on capital punishment until finality was arrived as to “what constitutes the rarest of rare” cases. In fact, between 2008 and 2013, there was an unwritten moratorium on the death sentence.
Later, another CJI, YK Sabharwal, who, in 2004 had awarded death sentence to a Kolkata security guard, Dhananjoy Chatterjee, for raping and murdering a Gujarati teenager, Hetal Parekh, in the housing society where he worked, strongly felt that capital punishment must be abolished. “So long as it exists on the statute as an alternate sentence, the court can’t ignore it,” he had told this correspondent then.
Justice Bhagwati had observed in 1980 that “judges can’t be blood-thirsty”. “…Death sentence has a certain class complexion or class bias inasmuch as it is largely the poor and the downtrodden who are the victims of this extreme penalty…. We would hardly find a rich or affluent person going to the gallows. Capital punishment is a privilege of the poor…it is the poor, the sick, the ignorant, the powerless and the hated who are executed,” he stated.
Earlier in 1979, Justice VR Krishna Iyer in had also observed, “….Who, by and large, are the men whom the gallows swallow? The white-collar criminals and corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control? Rarely.”
Serious deliberation
In May this year, when Law Commission chairman AP Shah issued a detailed questionnaire, he sought the views of the legal fraternity, students, academicians, NGOs and individuals for a possible legislative deliberation on retaining or deleting capital sentence from the statute. (lawcommissionofindia.nic.in).
The foremost query of the commission was: “Are you in favour of retaining capital punishment on the statute book?” If yes, is it because it acts as a “deterrent” for future crimes, because “retribution” is the most effective means of achieving justice or so that convicts are never released back into society as they “may pose a threat in future”. Other reasons include lessening the burden on jail and an accused not deserving reform.
The commission further asked that in case a respondent is opposed to death penalty and wants its abolition, is it because he feels that “there is no conclusive proof that capital punishment acts as a deterrent for future crimes”. Or is it because the sentence “imposes hardship and trauma for the convict’s family, who may have had no role in the crime”? The commission also asked whether capital punishment “deprives people of the opportunity to reform” or its imposition “is not free from risk as there is a chance of innocent people being sentenced to death”. It inquired if another reason to terminate death sentence was because it was too judge-centric and depended on a judge’s personal belief against or in favour of this harsh punishment. The commission raised another query based on what Justice Bhagwati and Jus-tice Iyer had thought, and said: “Economically and socially backward groups will always have a greater chance of being subjected to capital punishment than the rich.” Further, it asked: “Is capital punishment a form of state-sponsored violence?”
Repeat rapists
The commission expanded the discussion by referring to the Criminal Law (Amendment) Act, 2013, which introduced capital punishment for the repeat offence of rape (Section 376E IPC). It asked respondents: “Should capital punishment extend to non-homicide offences?” It may be inferred that the commission wanted to know whether the extreme penalty could be awarded to a rapist who was not involved in a similar offence in the past.
It asked questions on different classifications of murder. “Is the crime of murder as severe and abhorring as an act of terrorism?” “Is it possible to divide murders into different categories for the purpose of sentencing, such as murders punishable with death and murders punishable with life imprisonment?” “What sort of murders would you include in the category of punishable with death?”
The commission also sought views on circumstances, where life imprisonment was adequate punishment for murder, but under aggravating circumstances, could be awarded death penalty. It was also anxious to know if offences punishable with death sentence could be divided into different categories, such as terror and non-terror offences. If the answer was in the affirmative, should capital punishment be retained only for terror offences? It also had queries about the current mode of execution—hanging until death. If there was no serious problem with this mode, please indicate why, the commission asked. And, could there be any other “preferable mode of execution?”
It also raised a politically sensitive issue: “Should mandatory guidelines be laid down for the governor and president to exercise powers of granting mercy in death penalty cases?” While the center strongly contests fixing a time limit for disposal of a mercy petition by the president or the governor, the SC has ruled that inordinate delay violates a convict’s right to life and equality, besides subjecting him to double jeopardy—undergoing imprisonment while waiting for execution. It had further said that it expects constitutional authorities to decide a mercy plea “within reasonable time”. Right to seek mercy is a “constitutional right and not at the discretion or whims of the executive,” it observed and ruled “every constitutional duty must be fulfilled with due care and diligence.”
The lives of others depend on it, after all.
AP Shah
Chairman, Law Commission
Shah’s questionnaire on the death penalty has sought views of lawyers, students, NGOs, academicians and individuals for a debate.
Justice PN Bhagwati
Former chief justice of India
As a Supreme Court judge, Bhagwati had registered a strong protest against the death penalty and said that it had a strong class bias.