By Justice Kamaljit Singh Garewal
A duty lady doctor in RG Kar Hospital, Kolkata, was raped and murdered on August 9, 2024. Investigation was transferred to the CBI and concluded in two months. Chargesheet was filed in the Court of Sessions on October 7, 2024, against Sanjay Roy for rape and murder. Charges were framed against him a month later on three counts: rape (Section 64 BNS), causing death during rape (Section 66 BNS) and murder (Section 103 BNS).
Public Outcry
Roy was tried in camera. The trial commenced on November 11, 2024, prosecution produced 50 witnesses and exhibited 350 documents. At the conclusion of the trial, Roy was found guilty on all three counts on January 18, 2025, and sentenced to imprisonment for life on January 20, 2025. The victim’s family was also awarded Rs 17 lakh as compensation.
There has been a public outcry: Roy must hang. As a nation we refuse to value justice. This is no doubt a very sweeping statement, but those (like the writer) who have experience of actually working in the justice system, see the injustices inflicted by the State on the ordinary citizens and are horrified that no one is accountable and criminals often escape arrest. If they are arrested, they languish in custody without bail, many often get off due to flawed investigation and weak prosecution, but after years of delay. This is a disturbing feature over the length and breadth of the criminal justice system. The remedy lies in ensuring delivery of quick, fair and impartial justice so that the faith of the people is not shattered.
When horrific cases of rape and murder happen, like the one of the young doctor, the general public naturally cries for quick arrest and execution of the accused. All this is understandable, but the answer to such demonstration of public anger is for the State to ensure quick trial and severe sentence. Quick and condign punishment is the best deterrence in cases like the present one. The trial judge has awarded quick and condign punishment to Roy, but the cry for justice has not dimmed, the demand for Roy’s execution continues in spite of the sound reasons given by the learned judge for imposing the lesser punishment of imprisonment for life.
Rarest Of Rare
The question whether the judge should impose death sentence or not was answered by the Supreme Court in Bachan Singh (1980). The constitutionality of death sentences had been challenged. The Court by upholding its validity also laid down the principle that death sentence should only be imposed in the rarest or the rare cases.
In his dissenting opinion, Justice PN Bhagwati declared death sentence unconstitutional. Justice Bhagwati’s opinion shall remain a beacon of light giving hope and encouragement to campaigners against death penalty. But for the present the “rarest of rare” doctrine shall remain applicable in India until death sentence itself is abolished.
In the present case, the trial judge found that the case was not rarest of the rare cases and spared Roy’s life by imposing life sentence till the end of his life. The judge considered various circumstances of the case like “the brutality of the crime…the combination of strangulation, smothering and brutal sexual assault…a prolonged and agonising ordeal for the victim…complete disregard for human life and dignity… a deliberate and sustained intent to cause harm, elevating the gravity of the offence.
According to the judge, “the helplessness of the victim was another crucial factor that added to the heinousness of the act. Victims who were particularly vulnerable, whether due to age, physical condition or circumstances, deserved special consideration.
Their inability to defend themselves or escape their attacker magnified the culpability of the perpetrator… the victim’s vulnerability during the attack highlighted the predatory nature of the crime and the perpetrator’s exploitation of an unequal power dynamic.”
The judge recorded that “the social impact of such a crime cannot be overstated. Heinous acts of this nature instil fear in the community and erode the fabric of social trust, created a sense of insecurity, particularly among vulnerable groups and had long-lasting effects on the collective psyche of society… broader impact on society was a significant consideration when evaluating the severity of the crime and contemplating appropriate punishment.”
A Chronic Malaise
The judge then went on to conclude that the case called for a carefully considered and appropriate sentence that balanced the gravity of the crime with the principles of justice, rehabilitation, and the preservation of human dignity. And said that the Court must resist the temptation to bow to public pressure or emotional appeals and instead focus on delivering a verdict that upholds the integrity of the legal system and serves the broader interests of justice.
Many public figures have faced death sentence, but escaped the noose and lived to tell the tale. The foremost was Shibban Lal Saxena, a firebrand freedom fighter who faced death sentence and remained in solitary confinement for 26 months in 1943. He was released and later became a member of the Constituent Assembly where he argued against death sentence and called for its abolition, but Dr BR Ambedkar stood up to defend death sentence on the grounds that it would always be reviewed by the Supreme Court. Saxena described that he witnessed about 30 executions in the jail and was convinced that at least 10 of the people hanged were poor and completely innocent, but had not been able to defend themselves effectively.
The case of Arthur Koestler, a socialist writer belonging to Hungary and whose famous work Darkness at Noon, is a highly acclaimed account of life in a totalitarian society. Koestler joined the Republican Army in Spain to fight the Franco regime, was arrested and sentenced to death. He remained in the death cell for six months before being exchanged for a fascist criminal and being released. He has written a personal account of hanging in his book Reflections on Hanging, a relentless, biting, and unsparing book giving details of botched and unjust executions.
Another heroic case is of José “Pepe” Mujica, a Uruguayan politician, former revolutionary and farmer who served as the 40th president of Uruguay from 2010 to 2015. As guerrilla with the Tupamaros, he was tortured and imprisoned for 14 years during the military dictatorship in the 1970s and 1980s.
We are also fortunate to have a detailed study on death penalty by the Centre on Death Penalty, National Law University, New Delhi, published in 2017. It is an authoritative study based on interviews with 60 former judges of the Supreme Court on death penalty. The study contains excerpts from these interviews. Judges expressed their frank views regarding Criminal Justice System and death penalty. The study concluded with the following remarks:
“Among the starkest outcomes of this study is the negligible impact of the skepticism concerning the criminal justice system on the support for the death penalty. While the arguments in support of the death penalty in abstraction may seem attractive, the normative coherence of the arguments in favour of the death penalty begins to thin when applied to the realities of the system. This near inexplicable “double speak”, on the one hand explicitly acknowledging the crises within India’s criminal justice system, and on the other articulating such strong support for death penalty, creates a peculiar situation where the death penalty starts to appear as a perfect distraction from the criminal justice system’s chronic malaise…”
Drawing Inferences
The Sealdah Court considered the judgment of the Supreme Court in Bachan Singh (1980) and relied upon the following guidelines:
“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”
The trial judge also relied upon the recent judgment of the Supreme Court in Manoj (2022) which observed:
“There are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme 91 Bachan Singh (para 202 and 206). Sixty six penalty with extreme infrequency—a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlines in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. 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 be done save in the rarest of rate cases when the alternative opinion unquestionably foreclosed.”
—The writer is former judge, Punjab and Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York