Print edition : October 30, 2015

Mohan Gopal. Photo: The Hindu Archives

Interview with the eminent jurist Mohan Gopal.

MOHAN GOPAL has been the director of the Rajiv Gandhi Institute for Contemporary Studies, New Delhi, since July 2011. He is also Chairperson of the Supreme Court’s committee on National Court Management Systems (NCMS), a member of the independent self-regulatory body of the electronic media (the News Broadcasting Standards Authority) and a member of the governing bodies of Jawaharlal Nehru University and the National Law School in Guwahati. He has served as Director of the National Judicial Academy, Bhopal; as Director/Vice-Chancellor of the National Law School of India University, Bangalore; and as a member of several key institutions. The Law Commission decided to revisit the question of abolition of death penalty, firstly, on the grounds that the Supreme Court had made a reference to it to do so in two judgments and, secondly, because the issue needed to be examined in the light of changes in society and in the world since the submission of the report on the subject in 1967. As a vociferous proponent of abolition of the death penalty and as one who participated in the Law Commission’s July 11 consultation on the issue, he expresses his disappointment with its latest report in this interview with Frontline.

Does the Law Commission report on the death penalty succeed in answering the reference from the Supreme Court?

In my view it does not because it does not provide the Supreme Court with a clear conclusion on whether or not there is a legal and constitutional justification for the death penalty.

The Law Commission is an expert body consisting exclusively of distinguished jurists. The Supreme Court turned to it for an analysis of the legal and jurisprudential justification for capital punishment. Other institutions would be more qualified to give an opinion on whether capital punishment is justified from an administrative, social or political point of view. Having thoroughly analysed and rejected as legally inadequate every one of what it calls the “penological justifications for the death sentence” (deterrence, incapacitation, retribution, revenge and public demand) and strongly embraced two powerful arguments against capital punishment (reformation and restorative justice), the report stops short of explicitly saying what its analysis clearly shows, that is, that there is today no legal, jurisprudential or penological justification for capital punishment under prevailing national and international law.

Instead, directly contradicting its own analysis, and without any legal basis, the Law Commission recommends retention of capital punishment for terror offenses—on the non-legal grounds of responsiveness to public opinion on national security, which it has rejected as an adequate ground in the report, and in order to “phase” abolition.

A clear conclusion by this eminent body of jurists on legal issues would have been very important for the Supreme Court as well as for Parliament, and for the public in general, to consider in making their own decisions on capital punishment. No other advisory body can give as authoritative a conclusion on the legality of capital punishment as the Law Commission can.

If the Law Commission had stopped at the legal conclusion that was asked of it—that so clearly emerges from its analysis—it would also have been difficult for any of its members to justify a dissent except on extralegal grounds (such as political, social or administrative considerations). The political “balancing” the Commission finally engaged in was not part of the reference of the Supreme Court; it is a trapeze act that was neither necessary nor mandated.

The Law Commission re-examined its 1967 report and recommended abolition now in the light of a change in circumstances. Was it right in recommending retention then because the circumstances were different?

Much futile blood has flowed in the gallows of the world since 1967. The world has moved very far down the abolitionist path in this period. This has certainly had an impact in narrowing the retention recommended by the Law Commission in 2015 to only terror-related offences.

But the 1967 and 2015 reports have much in common. Both talk of the eventual phasing out of capital punishment. But both end up accepting capital punishment because of prevailing political and social circumstances, even without offering any legal justification. Both reports compromised at the end of the day with the “public opinion” of vocal and powerful right-wing, conservative forces, rather than stand up to them. Both ignored the strong, abolitionist “public opinion” of the masses, eloquently expressed by Dr Ambedkar in the Constituent Assembly on behalf of the poor and the downtrodden—who are most vulnerable to loss of lives on the gallows: “I would much rather support the abolition of the death sentence itself. That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

It would be misleading to characterise the 2015 report as abolitionist, especially because of the undefined, open-ended and discriminatory nature of the space it has left for retention of capital punishment, “terrorism-related offences”. Both the 1967 and 2015 reports are, at their core, retentionist.

Is there a jurisprudential basis for the death penalty as the Supreme Court queried in its reference? In your view, how does the Commission answer the question? How should it have answered it?

No, there is no jurisprudential principle on the basis of which a democratic state can justify killing its prisoners (who are in its care and custody) or anyone for that matter, except perhaps on the narrow grounds of self-defence in the face of clear and present imminent danger. Given the advances in human rights law and our own constitutional jurisprudence on fundamental rights, it is today impossible for the state to kill one of its prisoners without violating several of his/her inviolable human rights and constitutional rights —chief among them being the rights to life, dignity and equality as well as the right against cruel and unusual punishment (the state does not even have a method of executing a human being pursuant to a judicial order that is not seriously in controversy!).

Therefore, from a legal point of view, imposing and implementing the death sentence in a lawful manner has become impracticable today because the state cannot and should not act illegally or violate the very fundamental rights it is pledged to guarantee and secure.

It is not clear why such a conclusion, which drips out of every page of the Law Commission report other than its conclusion, could not have been explicitly stated by it, and why, instead, this same conclusion had to be couched by the Law Commission in such a bashful, vague and compromised manner, saying: “Safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment” (paragraph 7.1.9).

For those who believe that fear is the most reliable basis for power and security, capital punishment is necessary to instil fear in the populace and hence justified. This is the approach of feudal, theocratic and autocratic states. But in a democracy in which, to quote Nehru’s Objectives Resolution of the Constituent Assembly, all power and authority of the state is derived from the people, free and informed consent—rather than fear—is the basis of power. Inflicting pain to create fear and terror cannot be the goal of any state policy of a democracy. That is typically the goal of terrorists who oppose democratic states.

Is the Law Commission justified in recommending abolition for offences other than terrorism and waging war as a first step?

Yes, the Law Commission is fully justified from a legal point of view in recommending abolition of capital punishment for any offence or set of offences. But there is absolutely no legal justification for the report to provide an exception for terrorism-related offences and waging war. In fact, this recommendation contradicts the correct legal conclusion in the report that “there is no valid penological justification for treating terrorism differently from other crimes”. The report then makes what, by its own standards, is an “invalid” distinction: between terror and non-terror cases. The report does not discuss in any detail the class of offences on waging war. The report does not explain how national security would be secured by retaining capital punishment for terrorism-related offences; the report itself recognises the futility of such a policy when applied, for example, to terrorists who aim to die for their cause. Nor does it give adequate attention to carefully analysing and delimiting the “carve out” it creates for terrorism-related offences. There is also a strong worry that in the current circumstances this exception may be applied in a manner that discriminates against Muslims, adding to the sense of fear already felt by many, especially young Muslims. The report does not provide any safeguards for the risks arising from its recommendations, which appear to be somewhat cursory, more populist than legal.

The Supreme Court wanted to know how the executive commuted sentences when the judiciary did not in many cases. How has the Commission answered this question?

The report has a detailed description of the government’s practice in using mercy/clemency power and judicial review of that power. In response to the question of the Supreme Court, the report indicates that there is no discernible standard by which the executive decides on commuting death sentences. On the other hand, there is a great deal of subjectivity. The nature of the power of mercy and the manner in which it is to be exercised need much greater debate and clarity. Of course, a moratorium on capital punishment, or its abolition, will make this power irrelevant to the debate on the death sentence. Given the overwhelming global support for abolition of capital punishment and its lack of legal tenability, the priority in legal discourse is therefore to urge abolition rather than repair mercy. This may now need reconsideration.

Would you agree that the Commission has sufficiently and elaborately answered the court’s question on whether the death penalty fails to satisfy penological purposes of deterrence, retribution and incapacitation?

Yes, the evidence presented in the report that penological purposes such as deterrence, retribution and incapacitation are not achieved through capital punishment is compelling and incontrovertible. It is in line with international research on this topic.

There is, however, a non-penological purpose that the report is unable to deal with effectively. It is the compulsion of satisfying public opinion. The report acknowledges that “public opinion, through the articulation of.... Amorphous standards of ‘collective conscience’, ‘society’s cry’, and ‘public abhorrence’ have been given an important role to play in sentencing jurisprudence [ sic]”. Notwithstanding such high-sounding contempt for this “amorphous” standard of public opinion, the report itself ultimately falls prey to it and meekly recommends retention of capital punishment for “terror-related offences”.

Is the demand of Indian public opinion for a violent state or for a non-violent state? If the report had analysed public opinion in greater depth, it would have had to deal with the assertion of Ambedkar 69 years ago that “after all, this country by and large believes in the principle of non-violence”. Is Ambedkar wrong? Is Gandhi wrong in asserting that non-violence is the first article of his faith and demanding that the state should not punish at all? Was Nehru wrong in asking that Godse not be hanged? Are the views of these most respected public leaders of our country to be completely disregarded as not representative of public opinion? Is only the cry for blood of a clutch of corporate-backed media outlets read or watched by minuscule audiences representative of public opinion?

It is a mistake to assume that there is a public demand for hanging as a particular type of punishment for convicts in gruesome crimes. As a measure of their anger and disapproval, the public will always demand the highest punishment provided in a legal system, regardless of what it is. They demand hanging today because it is currently the highest punishment in the system. If the highest punishment allowed by the law were to be imprisonment for life, most members of the public are likely to be satisfied with that punishment being given to those convicted of the most gruesome crimes.

What the legally and constitutionally permissible highest punishment should be is for jurists and judges to decide only on the basis of legal principles.