Uneven balance

Justice Thurgood Marshall (left) of the U.S. Supreme Court, who believed the death penalty to be unjust, and Justice Potter Stewart, who held that facing the death sentence was as unusual and cruel as being struck by lightning.-Justice Thurgood Marshall (left) of the U.S. Supreme Court, who believed the death penalty to be unjust, and Justice Potter Stewart, who held that facing the death sentence was as unusual and cruel as being struck by lightning.

Examples abound of a pattern of confusion, contradiction and aberrations in judgments in death penalty cases.

The death sentence, passed in dusty courtrooms after arcane legal arguments, is executed in the utmost secrecy behind high prison walls at the crack of dawn. Though the right of the state to punish by killing is debated intensely, the process that takes prisoners from the dock to the scaffold remains shrouded in secrecy. Since executions are done in our names, we need to know more about them and make informed choices. In Furman (1972), where the United States Supreme Court struck down the death penalty, Justice Thurgood Marshall said that if citizens were fully informed, they would find capital punishment shocking, unjust and unacceptable. In the same case, Justice Potter Stewart held that facing the death sentence was as unusual and cruel as being struck by lightning. One does not know whom it will strike; it cannot be anticipated or guarded against. Harbans Singhs case (1982) vividly illustrates this. In October 1975, the Allahabad High Court confirmed the death sentence imposed by the trial court on Jeeta Singh, Kashmira Singh and Harbans Singh for playing equal roles in murdering four members of a family. Each of them challenged their sentence separately before the Supreme Court. While Jeeta Singhs appeal was dismissed by a Bench of three judges (Justices Y.V. Chandrachud, V.R. Krishna Iyer and N.L. Untwalia) and he was hanged, a different Bench of two judges (Justices M. Fazal Ali and P.N. Bhagwati) commuted Kashmira Singhs death sentence to life imprisonment. Another Supreme Court Bench dismissed Harbans Singhs appeal and review petition though he had sought equal treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution and recommended presidential clemency, which was granted.

Examples abound of judicial error in death penalty cases where persons have been wrongly convicted or sentenced to death. In Bachan Singh (1982), Justice Bhagwati, a former Chief Justice of India, said that the Supreme Court had been awarding death penalties arbitrarily and freakishly. Was he wrong?

The Supreme Courts varied interpretation of what constitutes rarest of rare makes Justice Stewarts comparison of the death sentence to a lightning strike all too apposite. The courts rules of prudence and practice have been breached so often that it is anyones guess whether they will or will not be applied in any particular case. The rampant uncertainty has made death sentencing a game of Russian roulette. Justice Bhagwati said that judicial ad hocism or judicial impressionism dominates the sentencing exercise and the infliction of death penalty suffers from the vice of arbitrariness and caprice. Though made in a dissenting judgment, these remarks have been reiterated by subsequent unanimous judgments.

In Santoshkumar Bariyar (2009) and Aloke Dutta (2007), after examining judgments in death penalty cases over the past two decades, the court admitted the failure on the part of this court to evolve a uniform sentencing policy in capital punishment cases and conclude as to what amounted to rarest of rare. Bariyar noted that a survey of the application of rarest of rare doctrine in various courts will reveal that various courts have given their own meaning to the doctrine. Such admitted disparity, subjectivity and inconsistency in applying the rarest of rare doctrine render the courts death-penalty jurisprudence constitutionally infirm.

Aberrations

Examples also abound of a pattern of confusion, contradiction and aberrations in judgments in death penalty cases. There is a time-honoured principle of not confirming the death penalty if one of the judges on the Bench or any of the lower courts had either acquitted the accused or sentenced him to life imprisonment. A case where a judge either acquits the accused or awards a lesser sentence cannot unquestionably be a rarest of rare case where a lesser sentence is not an option. However, in Krishna Mochi (2002) and again in Bhullar (2002), the Supreme Court confirmed the death sentence despite one of the judges having acquitted the appellants. In Kheraj Ram (2003) and Satish (2005), the Supreme Court imposed the death sentence on persons acquitted by the High Courts. In Sattan (2009), the Supreme Court enhanced the sentence to death 15 years after the High Court had commuted it. Out of deference to principle and precedent, the court ought to have explained why it repudiated the aforementioned principle ruling out the death penalty in such cases.

A study of Supreme Court judgments in death penalty cases from 1950 to 2006 (Lethal lottery: The death penalty in India (2008)) by Amnesty International and the Peoples Union for Civil Liberties (PUCL) shows that cases in which the death penalty was imposed are often indistinguishable from those in which it was commuted. Nothing has changed since then. Dharmendrasingh (2002) and Kheraj Ram (2003), doubting their spouses fidelity and the parentage of their offspring, killed their wives and children. The former was sentenced to life imprisonment, the latter to death. Vashram (2002) and Sudam (2011) murdered their wives and children because they were being nagged. The formers sentence was commuted, while the latter was sent to the gallows. Nagging was decreed a mitigating circumstance and sustained provocation in only one case though it was the cause of both murders.

In two cases of child sacrifice, the court commuted the death penalty in one case but upheld it in the other. It commuted the death penalty in Damu (2000), where three children were killed, and upheld it in Sushil Murmu (2004), where one child was killed. The grounds for commutation that the accused acted out of ignorance and superstition applied squarely to Murmu as well, which was also less heinous a case than Damu. In each of these comparisons, the court ignored its own precedent and imposed the death penalty in the subsequent case.

Mohan (2008) was sentenced to death for the rape and murder of two minor girls, having earlier been convicted twice of raping other minor girls. Sebastian (2010), described as a violent paedophile with previous convictions for molestation, kidnapping, rape and murder of a young child, was given life imprisonment for yet another rape and murder of a child. There is little to differentiate the case of Sebastians from Mohans, except the composition of the Bench. While Justices K.G. Balakrishnan and S.B. Sinha commuted all death sentences for child rape and murder, Justice A. Pasayat upheld or imposed the death penalty in every such case even when lower courts had acquitted the accused or commuted the sentences.

Personal predilections

Satish (2005), convicted of raping and strangling a five-year-old girl, was sentenced to death by Justice Pasayats Bench even though the case was based on weak circumstantial evidence and the High Court had acquitted him. Rahul (2005), convicted of the rape, sodomy and murder of a four-year-old girl, was given life imprisonment by Justice Balakrishnans Bench. In Swamy Shraddananda 2 (2008), the court admitted: The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this court depends a good deal on the personal predilection of the judges constituting the Bench.

The death sentence becomes more indefensible when a majority of such cases are assigned to two or three out of the 14 or so Benches of the Supreme Court. This creates a lottery, where the mere presence or absence of a particular judge gives the convict a significantly better or worse chance of survival, statistically, regardless of the evidence. A comparison of three judges (derived from judgments reported in Supreme Court Cases) clarifies the importance of a judges personal predilections in death-penalty adjudication.

Justice Pasayats conviction rate of about 73 per cent was significantly higher than the collective conviction rate (19 per cent) of other judges during his tenure. Thus, a case not allotted to Justice Pasayats Bench was about four times more likely to escape capital punishment. A death-penalty case had an almost equal chance of being heard by Justice Pasayats or Justice Sinhas Bench, but the convicts chances of living were almost 100 per cent if his case was allotted to the latter instead of the former. A prisoners chances of living were better by more than 50 per cent if his case was allotted to Justice Balakrishnans Bench rather than Justice Pasayats Bench. Would a death sentence appellant not be justified in asking, Am I to live or die on the basis of the constitution of the Bench and not the evidence in the case? Is that justice according to law?

A.R. Blackshields study (1972-1976) shows similar if not worse disparities among judges. There can be little doubt that Justice Bhagwati was right when he said whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of [the] death penalty arbitrary and capricious. This becomes self-evidently true on comparing Justice V.R. Krishna Iyers comments on the sacredness of life, the ever-present possibility of redemption in the worst type of criminal, and the barbarity of the death sentence with the regret expressed by some judges after the Bachan Singh judgment unfortunately prevented them from passing more death penalties. A case in point is Amrik Singh (1988).

As we saw in Harbans Singh, and as is becoming clearer by the day, the imposition or commutation of the death penalty depends less on the evidence than on the personal predilections of the judges. Md. Farooq (2010) and K.V. Chacko (2001) chronicle the swinging fortunes of an accused sentenced to death by one court, having it commuted by another, and being acquitted by a third. Such glaring inconsistencies in death-penalty judgments have caused disquiet among not only litigants, lawyers and academics but also judges themselves. Aloke Dutta (2007) contains a poignant expression of sorrow and helplessness: We have also noticed hereinbefore that different criteria have been adopted by different benches of this court, although the offences are similar in nature. No sentencing policy in clear-cut terms has been evolved by the Supreme Court. What should we do?

Underlying such anguish is a realisation that the court has treated similarly situated convicts differently and thereby violated the fundamental rights it was expected to protect:

Equal protection clause ingrained under Article 14 [of the Constitution] applies to the judicial process at the sentencing stage. We share the courts unease and sense of disquiet in Swamy Shraddananda (2) case and agree that a capital sentencing system which results in differential treatment of similarly situated capital convicts effectively classifies similar convicts differently with respect to their right to life under Article 21. In the ultimate analysis, it serves as an alarm bell because if capital sentences cannot be rationally distinguished from a significant number of cases where the result was a life sentence, it is more than an acknowledgement of an imperfect sentencing system. In a capital sentencing system if this happens with some frequency there is a lurking conclusion as regards the capital sentencing system becoming constitutionally arbitrary ( Bariyar, 2009).

Arbitrariness becomes inevitable wherever the death sentence is awarded on subjective and vague criteria such as whether a case is the rarest of rare and whether it shocks ones conscience. Ultimately, the decision is largely based on personal predilections and beliefs thinly disguised as legal doctrine.

Class bias and colour bar

In addition to being arbitrary, the death penalty is also discriminatory. Capital sentence perhaps has a class bias and colour bar, declared Justice Krishna Iyer ( Rajendra Prasad, 1979). He said that the death penalty was reserved for crimes committed by the poor, while white-collar crimes which were more damaging to the public weal (adulteration, financial scams, environmental degradation, and so on) got exempted. Justice Bhagwati echoed these views, holding that the death sentence is discriminatory and 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 ( Bachan Singh, 1982).

A nodding acquaintance with the criminal justice system will show that poverty is as significant a factor in the death sentence as the nature of the crime or the quality of the evidence.

Yug Mohit Chaudhry is a lawyer practising in the Bombay High Court.