Death as penalty

The Dhananjoy Chatterjee case shows that both judicial and non-judicial decisions on a death sentence are guided by public outrage over the gravity of the crime committed.

in New Delhi

BY rejecting the mercy petition filed by Dhananjoy Chatterjee's close relatives on August 4, on the advice of the Union Home Ministry and after due consultations with Attorney-General Milon Banerji, President A.P.J. Abdul Kalam has seemingly concurred with the view that grant of pardon to the rapist-killer of West Bengal would suggest indifference to the public outrage over the gravity of his crime. The President stayed the convict's execution on June 25 pending his consideration of the mercy petition, and revealed his decision through the Union Home Ministry after more than a month, during which time he and the government came under intense pressure from those defending the death penalty and those who argued for its commutation to life sentence.

Even as the anti-death penalty lobby makes a fresh attempt to seek the intervention of the Supreme Court in this case, citing the inordinate delay in the judicial procedure and the execution of the sentence as a mitigating factor that could justify its commutation to life imprisonment, several issues have come to the fore in the debate on the death penalty.

A look at the chronology of the Dhananjoy Chatterjee case reveals that there was an unusually long lull between June 23, 1994, when the President rejected the first mercy petition after the Supreme Court dismissed the Special Leave Petition against the Calcutta High Court's confirmation of the death sentence in January 1994, and November 14, 2003, when the court dismissed the convict's writ petition challenging the rejection of the mercy petition by the Governor. The rapist-killer then filed a writ petition seeking a stay of execution and commutation of the death sentence. The Division Bench of the High Court dismissed this petition as well on January 8, 2004.

Following this, Dhananjoy Chatterjee appealed against the High Court's order in the Supreme Court. On March 26, the Supreme Court agreed with the petitioner's contention that the State government had not placed before the Governor material facts, including the mitigating factors in this case, and that the Governor rejected the mercy petition on February 16, 1994, without considering the relevant facts. The Supreme Court, therefore, directed the State government to put up the mercy petition filed on February 2, 1994, to the Governor again, and bring all relevant facts to the notice of the Governor for an appropriate decision.

On June 2, the Governor once again dismissed the mercy petition. Dhananjoy Chatterjee's relatives then filed another mercy petition before the President, who directed the State government on June 24 to stay the execution until a final decision.

So what can explain the delay of nearly a decade in the execution of the death sentence after the President rejected the mercy petition in 1994? In February 1994, Dhananjoy Chatterjee obtained a stay on his execution from the High Court, pending consideration of the mercy petitions first by the Governor and then by the President. However, the High Court did not vacate the stay, as the fact of rejection of the mercy petitions was not brought to the court's notice by the State government. It was only in 2003, that the State government sought vacation of the stay granted by the High Court, citing the fact that Dhananjoy Chatterjee's mercy petitions had been rejected long ago.

This delay might have been entirely unintentional, but it gave a fresh opportunity to the Supreme Court to correct a procedural wrong in the consideration of the mercy petition.

In the Trivenben case (1989), a Constitution Bench of the Supreme Court held that the grounds of delay entitling a convict to demand commutation of the sentence should be based on the inhuman suffering and the mental torture he or she undergoes during the long wait for execution. The Bench observed: "When mercy petitions under Article 72 or 161 are received by the authorities concerned (that is, by the President or the Governor respectively), it is expected that these petitions shall be disposed of expeditiously. Undue long delay in execution of the sentence of death will entitle the condemned person to approach this court under Article 32, but this court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the sentence of death."

The Bench, however, added: "No fixed period of delay could be held to make the sentence of death inexecutable." The Bench overruled the Supreme Court's two-Judge decision in T.V. Vaitheeswaran vs State of Tamil Nadu (1983), wherein it was held that a delay exceeding two years in the execution of a sentence of death could be considered sufficient to entitle the person under sentence of death to invoke Article 21 (which states that "no person shall be deprived of his life or personal liberty except according to procedure established by law) and demand the quashing of the sentence.

In the Trivenben case, Justice K. Jagannatha Shetty held that "the inordinate delay may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor can it be divorced from the dastardly and diabolical circumstance of the crime itself."

It was in Bachan Singh vs State of Punjab (1980) that the Supreme Court rejected the challenge to the constitutional validity of awarding the death penalty and held that it should not be imposed except in the "rarest of rare cases". The court also enunciated some of the mitigating and aggravating circumstances required to be kept in view while considering the sentence.

In the Dhananjoy Chatterjee case, the Supreme Court's two-member Bench comprising Justices A.S. Anand and N.P. Singh said: "The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime."

The Bench concluded that Dhananjoy Chatterjee, working as a security guard at the apartment where the victim was residing with her parents, had committed the most heinous type of crime, the rape and murder of a defenceless school-going girl. "The offence was not only inhuman and barbaric, but it was a totally ruthless crime of rape followed by cold-blooded murder and an affront to the human dignity of the society," it said. It found no extenuating or mitigating circumstances at all in the case and considered it one of the "rarest of rare" cases, which called for capital punishment.

Anti-death sentence lobbyists ask if the rapist-killer's death sentence is commuted, would it not give him an opportunity to reform himself, and spread the message of non-violence to others with similar criminal intent? Is death penalty the only form of justice that could satisfy the family of a victim and society at large? Apparently, these issues are debatable, and in the absence of any legislation and judicial decisions, the debate will largely remain academic.

ALTHOUGH there is no reliable data available on the number of convicts executed in India since Independence or awaiting the death sentence in various jails in the country, more than 100 convicts are said to be facing the death penalty. The last hanging took place in Salem in Tamil Nadu in 1995, when `Auto' Shankar was executed for the serial murders he committed in Thiruvanmiyur in Chennai. Rajiv Gandhi's killers Santhan, Murugan and Perarivalan are awaiting their execution as the President has not yet taken a decision on their mercy petitions. They have completed 13 years in jail. For Nata Mallick, the octogenarian patriarch of a family of hangmen in West Bengal, Dhananjoy Chatterjee is the 25th convict he would hang. There are perhaps only a few hangmen left in the country, as the task requires considerable professional expertise.

The lack of professional hangmen should make the Law Commission's 187th report to the government, submitted in October 2003, worthy of consideration. The Commission recommended alternative methods such as lethal injection, which would require rendering the convict unconscious with anaesthesia before injecting the lethal dose, in view of the physical pain and suffering a convict undergoes when he or she is hanged until death.

It has also recommended that a convict, whose death sentence has been confirmed by a High Court, should have the statutory right to appeal to the Supreme Court and that his/her appeal should be heard by a five-Judge Bench. Amnesty International, India, insists that the verdict of the death sentence should be unanimous by the Judges. These safeguards could further limit the scope for judicial errors in the award of capital punishment.