Sunday, August 2, 2009

The Death Penalty Debate

The group leading the discussions on Death Penalty have the following opinions to offer on the issues discussed at the Forum:
Reading of the Bariyar judgment will make one realize that the Court is not stating anything substantially new, rather Justice Sinha is reiterating the principles laid down in Bacchan Singh. The Court elaborates on the element of pre sentence hearing mentioned in Section 235(2) of the Cr.P.C and also states that the recording of special reasons under Section 354(3) of the Cr.P.C provides a safeguard to prevent arbitrary imposition of death sentence. The “special reasons” mentioned in Section 354(3) is based on the evidence adduced at the stage of sentencing. This evidence is based substantially on the background of the criminal and the prosecution needs to show that the accused is beyond any form of reform and rehabilitation. According to Justice Sinha, the irrevocability of death sentence makes it imperative on the Court to resort to this punishment only when alternative option of punishment, i.e. life imprisonment will not serve any purpose. Highlighting the objectives of punishment like detention, retribution and reformation, the Court states that death sentence provides no scope for any of these objectives and hence should be used only in situations where “alternative option is foreclosed”. Justice Sinha also urges the judiciary to not be influenced by public outrage while imposing death sentence. He emphasises the importance of individual rights over majoritarian aspirations and states that social necessity can’t be a justification for the imposition of death sentence.

The factor that makes this judgment significant in the arena of death penalty is that, through this case the judiciary wants to prove that the decisions post Bacchan Singh have not been consistent in applying the principles laid down in Bacchan Singh. Moreover the Court has provided an elaborate study of its previous decisions to show the arbitrariness that is prevalent in the system in the area of death sentence. The judgment not only evokes a sense of disapproval in the mind of the reader to the prevalent system of death sentencing policy, the data given by the Judge about the number of countries that has abolished death sentence makes the readers wonder whether the Court through its decisions is promoting for an abolition of death penalty in toto. However Justice Sinha treading the safe path does not comment on the existence of death penalty as a punishment, but only criticizes the method of its implementation.
Judicial subjectivity is an element that is inevitable in every sentencing procedure. There is a responsibility on the judiciary and its mechanisms to ensure that individual biases and prejudices are kept to its minimum, while awarding death sentence, the gravest of all punishments. At the expense of being cynical, I feel that arbitrariness is a menace that can’t be wiped out from the death sentencing policy, irrespective of any safeguards. The judgment of Bariyar, citing Bacchan Singh, states that the prosecution needs to prove that the accused is not capable of any reform. At this juncture I want to highlight the folly of this procedure. Firstly, it is extremely difficult to prove that an accused is beyond any possible rehabilitation and secondly the evaluation of this rests once again on the judiciary who do not have the expertise to gauge such an important issue on the basis of which the sentence will be given. The assistance of expertise is not going to wipe out the arbitrariness, because there are other judgments in which the Court to suit its whims and fancies have disregarded expertise opinion.[1] Therefore it once again boils down to the personal predilection of the judges. Suppose the accused comes before a judge whose opinion on death sentence is similar to Justice. Prasayat, then the burden of proof on the prosecution will reduce tremendously. Considering the irrevocability and graveness of the punishment, I am of the opinion that this judge centric approach should not be allowed to continue. Moreover the judiciary itself has admitted that judicial discretion can’t be curtailed in case of sentencing. Therefore I feel that death sentence as a punishment should not continue, when the judiciary has dismally failed to prevent the arbitrary nature of its sentencing policy.
-Meera Sreekumar
[1] Dr.Nikhil Dattar v. Union of India.
The endless debate on whether death penalty should be abolished or not, in the light of the gamut of case laws, remained endless even at the first meeting of the CLIF. Though each and every person has certain, and mostly staunch, notions about the issue consensus is a far fetched dream. Though for us sitting in a classroom it was quite easy to air our opinions by a show of hands such is not possible for the judges of the Supreme Court and thus the confusion about what Supreme Court opines about it persists. This write up is my take on the issue and my opinions on the where India is or should be headed with matters pertaining to death penalty. This short write up seeks to address three issues which had been brought up in the CLIF discussion. It commences with a discussion on why death sentence should be abolished followed by a critique of the judgement of Santosh Kumar Bariyar v. State of Maharastra. Finally I would like to express my opinions on the issue of how to conceptualize a “principled sentencing” policy for matters regarding capital punishment should be decided by the Supreme Court.

An unswerving abolitionist, I am of the view that capital punishment should be done away with. I base my sentiment on two arguments. The first of the two is that one can never be sure of the truth. From a realist perspective every Indian is aware of the amount of corruption plaguing the criminal justice system and if such is the case a person can never be cent percent sure of whether the accused deserves death or not. Though people who want to retain the concept feel that given the heinousness of crime the guilty deserves to be dead, but none would take the responsibility for the ambiguity that the guilty might not be the guilty in reality. If the Indian justice system is against euthanasia on the argument that probably the person might just be revived then I think it should also give a second thought to this aspect of argument against death penalty.

The second issue which I have with death penalty is the lack of policy behind the same. For a while the scholars attributed death penalty to have deterrence value but the same has been proven wrong by studies time and again. After the death of a person the reformative theory gets swept out of the picture and thus remains the retributive theory. But judges are usually not keen to state the same as it is analogous to the “eye for an eye” theory. The argument is usually camouflaged under the veil of ‘protection of society’ but the argument doesn’t hold good after the Sharaddhanand Swamy case which made life imprisonment for the life of a person and ensured that such criminals never interact with the society. This according to me is a fairer option because it serves to protect the society from these anti social elements and also leaves scope for correction in mistakes in administering justice. It ensures that to get to the end, whatever it may be, that the justice system plans to achieve, injustice isn’t caused to an innocent in the process of getting to the end.

The case of Bariyar is an important step towards the concept of abolition of death penalty, or atleast the minimal use of the same. Many abolitionists have welcomed the judgement but there are a couple of aspects of the judgement which according to me can be assigned the term lapses in justice. Though the case does well by not attributing death sentence the reason for the same given is that they were not criminals but were friends. According to the philosopher John Gardner in his essay in the “Gist of Excuses” he says that a person cannot be excused because he committed a crime once because it might not be out of character but the beginning of his evil character and by condoning the same we will be causing great injustice to the society.

Further the case lays down the new test for determining the rarest of the rare which is that if the judge is convinced that the person is beyond reform then only death penalty should be imposed. In the case of Niketa Mehta which deals with rights of abortion six different doctors gave different views, all based on scientific analyses, about whether it was safe for her to undergo an abortion. If such is the case of scientific study how is the judge (not a science student) supposed to decide whether a person is or isn’t beyond reform especially when he is dealing with the field of psychology which is not yet greatly advanced in India. This might lead to arbitrary decisions regarding whether a person deserves a death penalty or not.

Since Bachhan Singh v. State of UP, the phrase “rarest of rare cases” has been manipulated by various judges in various cases. Each interpretation adds a new facet to the phrase leaving it as ambiguous as possible. In the CLIF discussion it was noted that whether or not a person gets convicted and to what extent are the aggravating and mitigating circumstances incorporated in a decision is based on the personal biases of each judge. If such is the circumstance then even though the case is referred to the largest bench on the Supreme Court, the decision will be based on the notions of the majority which might again be biased and the same will still not ensure justice to the one person who gets hanged even though he is innocent. I base my notion on Hart’s proposition that there cannot be a shared sense of morality and the argument that the majority decision is not always the right decision.

Thus I am of the opinion that death sentence should be abolished and in circumstances where the need to use the same arises the person should be punished with life imprisonment for life because it is better to be a little lax to the guilty than being unjust to the innocent who get trapped.
- Rachita Nadig
In this brief opinion, I seek to address two aspects of death penalty jurisprudence in general and with respect to India, in particular. Firstly, I seek to make an argument in favour of abolishing the death penalty on the basis of the reformative theory of punishment. Further, I argue that it is virtually impossible to remove the element of arbitrariness from death penalty sentencing and while the Bariyar judgment takes an significant step in this direction, it comes riddled with its own problems in the realm of death penalty jurisprudence.

Death penalty is the harshest form of punishment which can be imposed upon an individual by the State and therefore, raises many pertinent questions regarding its legitimacy. According to me, the principal aim of punishment must be the reformation of the criminal. However, the punishment of death sentence completely forecloses the possibility of reformation. The only ends which it can even aspire to achieve are the objectives of deterrence and retribution. However, the nexus between the death sentence and deterrence is not very credible and empirical studies have often indicated that deterrence has more relation with the certainty of getting punished rather than the degree of punishment inflicted. Therefore, the only end which death sentence seems to achieve is that of retribution, which begs the question if we want to create the kind of society which is based upon a bloodthirsty ‘an eye for an eye’ penal policy. I believe that death penalty is a barbaric mode of punishment which doesn’t deserve a place in a civilized legal system. Whatever be the offence committed by a particular individual, the State can’t be given the right to take away life. Another strong argument in favour of abolishing the death sentence is based on its irrevocability. There’s no way to reverse a sentence of death if it is later discovered that the person executed was actually innocent. The abolitionist movement against death penalty is gaining strength worldwide, with ninety-four countries having abolished the death sentence and another thirty-four not having used it for at least the past ten years.

Another problem with the sentence of death in India is the arbitrary manner in which it is imposed. The landmark decision in the case of Bachchan Singh established that death sentence should only be imposed in the ‘rarest of the rare’ cases. However, what essentially constitutes ‘rarest of the rare’ has been the subject of varied judicial interpretation. Machhi Singh identified five factors which the court must consider to determine whether a case falls within the category of ‘rarest of the rare’. However, the relative weightage of each of these factors remained largely a matter of judicial discretion. The latest Supreme Court judgment on this issue in the Bariyar case points to this problem of uneven application of the law in death penalty cases. This essentially means that the lives of convicts are virtually dependent on judicial whim.

I believe that this problem of arbitrary infliction of death penalty due to excessive judicial discretion is an incident of the very nature of the demands of a sentencing policy for such a severe punishment as death and though this element can possibly be minimized, its influence can never be completely done away with. This is because while on the one hand, arbitrary infliction of death due to excessive judicial discretion is considered to be a problem, on the other hand, a certain degree of judicial discretion in sentencing a person to death is definitely required as there is not even a single crime for which a blanket death punishment can be imposed and the circumstances in which the crime was committed and the circumstances of the criminal deserve attention, a fact also recognized by the Supreme Court by declaring mandatory capital punishment sentences as unconstitutional. Therefore, this dilemma of the adequate amount of judicial discretion which must be conferred in such cases remains quite hard to resolve.

The Bariyar case has added another dimension to the debate by interpreting the judgment of Bachchan Singh in a radical manner. The judgment makes it mandatory that a proper pre-sentence hearing be conducted and holds that a death sentence can only be imposed if the prosecution is able to adduce sufficient evidence to show that a convict can’t be reformed and hence death sentence is the only viable option. The judgment raises a number of questions about the feasibility of such a pre-sentence hearing and by laying down the requirement of such a high standard of proof, the judgment places a virtual moratorium on the death penalty.

However, the judgment falls short of achieving all that is desirable since the judiciary has still remained shy of addressing the problem directly by tackling the bull by the horns. After enumerating several instances of arbitrary infliction of the death penalty, the judgment, instead of referring the matter of constitutionality of the death sentence to a larger bench, takes a roundabout way to put an end to the penalty of death by erecting a high standard of proof for its infliction.

Also, I believe that we need to give some thought to the alternative to death penalty, which according to the Swami Shradhananda case is imprisonment for life, without any scope for remission. Such a penalty again fails to achieve the goal of the reformative theory of punishment which is oriented towards rehabilitation of the convict in the society.
-Sanjam Arora
The Death Penalty and Bariyar: The Road Ahead

The death penalty jurisprudence in India has been witness to extreme changes within a wide ranging bandwidth. The transition from the ‘death penalty as the rule and life sentence as the exception’ to ‘life sentence as the rule and death penalty as an exception’ has altered the entire conception of capital punishment. This has in part been facilitated by the concept of ‘rarest of rare’ cases, wherein the death penalty can be imposed only when the act committed is such in nature so as to shock the collective conscience of the society, as a brutal and savage act beyond the contemplation of a reasonable man. The adoption of this doctrine had the fundamental effect of restricting the imposition of the death penalty drastically. However, an offshoot of it culminated in the introduction of a greater element of uncertainty and subjectivity in its award at the hands of the judge/s concerned. For a long time there were no clear guidelines of determining if a case fell within the ‘rarest of rare cases’ category or not. In effect, it relied totally on how the judge/s perceived the ‘rarest of rare’ classification and the subsequent irregularities in decisions on various occasions has reaffirmed the above claim of subjectivity.
However, the recent landmark case of Santosh Kumar Bariyar v. State of Maharshtra[1] has had some impact in clearing the air over this subjectivity by making the imposition of the death penalty almost impossible. This has been done by the Supreme Court by ruling towards a higher and more comprehensive standard that focuses on working with and not against the accused. The determination of the nature of the accused and the probabilities of his/ her reform will be extremely difficult for any court of law. Thereby, more often than not it would rather lead to a sentence of life imprisonment than to one of life imprisonment, if such be the nature of the offence.
In view of the above developments, I believe that the course chartered by capital punishment in Independent India has been one that has constantly tended towards an increasingly restrictive interpretation. Although I support the death penalty as a punishment, I also believe that the Bariyar judgement has been a welcome step towards promoting much needed clarity over a topic as important as that of the death penalty.
- Sartaj K. Singh

I shall endeavour to make a case in favour of abolishing the death penalty through the conclusions I have drawn from my reading on the matter, as well as the opinions I can safely express therein.

The new standard laid down in the Bariyar case is excellent in the sense that it counters one of the many ugly heads of arbitrariness that cloud the realm of death penalty sentencing. The fact that evidence has to be provided to assert that the accused is beyond redemption is an excellent step to ensuring that the sentence of death in India is no longer being used to worship the false god of deterrence, or to support the bloodthirsty jaws of retribution.
Of course, there are some flaws when we come to the question of reformation. If the person is capable of reformation, and thence sentenced to life imprisonment, the recent definition of life imprisonment as the whole life, without the chance of remission, makes reformation and rehabilitation kind of redundant. And of course, there is the question as to what constitutes reformation, given that our judiciary in their infinite wisdom, have considered yoga and meditation to be sufficient proof of reformation, while true remorse even the handing over of oneself to the authorities, has failed to meet this standard.
While the Bariyar judgment takes note of the arbitrariness associated with death sentences, it fails to take note of numerous other forms of randomness that infest the process. From institutional negligence that has seen a mercy petition lie forgotten in a governor’s desk for nine years (the Dhananjoy Chatterjee case), to the lack of documentation of death penalty cases that has resulted in the details of Bachan Singh’s execution to be never recorded (for all we know the man may yet be languishing in a godforsaken cell somewhere, at least as far as the records tell us), our system needs a great deal of overhauling to ensure that the right to life is not snuffed out without the due process of law being followed.
A certain degree of care must be paid to our international obligations with regard to the issues like the death penalty, as well as our own judicial positions. While we currently violate Article 6(1) and 6(2) of the International Covenant on Civil and Political Rights by keeping mandatory death sentences for crimes such as that under Section 31A of the Narcotic Drugs and Psychotropic Substances Act of 1985, the same also violates the 1983 Bitto Singh judgment that declared Section 303 of the Indian Penal Code unconstitutional.
An automatic right of appeal to the Supreme Court should lie with all those sentenced by a High Court to death. This was a key feature of the Constituent Assembly debates, especially out of concern for the poor who are sentenced to the same. However, today, only those whose acquittals have been reversed by a High Court to become death sentences are entitled to the same, while those whose sentences are enhanced from life imprisonment to death are not. Perhaps this is one of the answers to former President APJ Abdul Kalam’s wonderment as to why all the people on death row were of the “poorest of poor”.
This last factor is also important, given the fact that many among the poor cannot afford good legal representation, and are instead forced to do with government appointed lawyers who are either rookies or couldn’t care less, or both. On the other hand, the rich get away with impunity.
The current legal stand on commuting sentences is a horrible jumble when it comes to factors like delays and mental incapacity. The court has refused to commute the sentences of those who have been part of the judiciary’s regular process of prolonging proceedings till the accused has gained white hairs, even if some of them have served the old standard of a life sentence in jail. Even if some of them may go mad after this treatment, we still execute them, even though the point of punishing them is lost on them (as is the point of us punishing them as a result).
Lastly, I would like to state clearly that while I am firmly in favour of abolishing the death penalty when it comes to normal so to speak crimes, I am a staunch supporter of it when the crime in question is on a larger scale, that is, it can fit within the framework of a crime against humanity, a war crime, or genocide. But till then, especially given the innumerable lacunae in our judicial system, it is far wiser and far more just, to try and reform the person.

As the famous author Robert Jordan puts it, “Nobody can have fallen so far in the Dark that they cannot walk again in the Light”
-Vakasha Sachdev
[1] Santosh Kumar Bariyar v State of Maharashtra 2009 (7) SCALE 341.


  1. it will be interesting to see if the prosecutor in the high-profile trial of kasab will follow the Supreme Court's directions regarding fresh evidence on possibility of rehabilitation of the accused at the sentencing stage. a failure to do so can itself be a ground for appeal.

  2. I agree. The test of the Bariyar principles will come with Kasab (interestingly Bariyar hints at the possibility in Para 81 ("Public Opinion may also run counter to the Rule of Law and Constitutionalism. Bhagalpur Blinding case or the recent spate of attacks on right to trial of the accused in the Bombay Blast case are recent examples").

    Bariyar highlights the arbitrariness in the death penalty regime, but focuses only on one aspect of such arbitrariness: the inconsistency in awarding the death penalty. Vakasha has pointed to issues of institutional incompetence/negligence and its impact on the arbitrariness of the regime. There appears to be,however, a third level of arbitrariness in the regime. While on the one hand Bariyar stands for the proposition that sentencing in capital offences should not be judge centric, and that judges should not "substitute their own value choices for the will of the people", it appears that in deciding which factors count as aggravating and which count as mitigating, the death penalty jurisprudence reflects a gendered view of the subject. Bariyar for example, quotes with approval Dharamendrasinh v. State of Gujarat (2002 (4) SCC 679) which states that a crime deserves death penalty only when committed for the lust of power, or for property, or in the pursuance of any organized criminal or anti-social activity. The focus therefore is clearly on power, property and public space. These are considered more heinous than crimes between acquaintances (Bariyar itself) or within the family (Rajpara v. State, 2002 (9) SCC 18), where a husband's killing of the 'nagging' wife and daughters was his inner rage boiling over). There are many such instances in the cases cited in Bariyar itself. My contention is that the focus on crimes for power, property and in the public space, is itself biased as it disregards the experiences of women (and often children) who are more vulnerable to violence within the family, and not necessarily for reasons of power or property.

    This does not mean that we should expand the list of cases where the death penalty should be awarded. It is merely to point out that the arbitrariness of the regime will not end with ensuring uniformtity. There are value choices being made at different levels, and this makes it even more imperative that we re-examine the very existence of the death penalty in India.

  3. this case will also meet the same fate:
    don't prosecutors read SC judgments?

  4. Great article! I think death penalty should be given only in some uniuqe cases and case involving national security like 26/11.

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