ABSTRACT
EXECUTING DEATH SENTENCE: WHO HOLDS THE KEY?
Although, the support for death penalty as a mode of punishment is thinning by the day and it is falling into disfavor with an ever-increasing number of people the world over, India is nowhere close to letting go of it. Death Penalty is based on the principle lex talionis or “an eye for an eye”. Public opinion in our country is not only in favour of retaining death penalty but is also for extending it to other offences, like rape. A very vital question regarding capital punishment is whether or not death penalty has any deterrent effect on would be murderers. Beside deterrence, it exacts retribution for crimes that serves justice to murder victims and their survivors. It also deters others from committing murder. Governments are doing these criminals a favour by putting them into jails and providing food and place to live instead of executing. Economy of the nations are effected in the negative way. On the other hand, death penalty has its other face that, it may execute the innocent, offering evidence of actual instances of erroneous convictions and executions of probably innocent people also noting two causes of miscarriage of justice, government misconduct and the politicization of the death penalty. On emphasizing the sacredness of life, killing is always wrong whether by individuals or by the state, that justice is best served through reconciliation. Delay in execution is yet another area which need utmost concern. Taking a human life is not easy. Therefore, due care and adequate caution has to be taken before an individual is deprived of his or her life by the state. If the state delays execution inordinately for one reason or the other, the delay must be counted in favour of the prisoner because living under the shadow of death is a lot worse than dying. . Justice Altamas Kabir, Chief Justice of India said “If a death penalty is to be awarded and it is there under the system, then the quicker things are done, the better it is for everybody”. Another imperative aspect is the “rarest of rare” principle. Whether or not the death penalty jurisprudence set out in the Constitutional Bench decision in Bachan singh v. State of Punjab[1] had been repeatedly ignored and the “rarest of rare” principle had been followed uniformly or consistently. The judgment in Sangeet & Anr. V. State of Haryana[2], delivered on 20th November 2012, is an introspective judgment in which the Supreme Court of India expressed its concern over this judge-centric approach to the death sentence in several of the apex courts recent decisions.
Given the capricious nature of death sentencing, the words of the Supreme Court in Swamy Shraddanand v. State of Karnataka[3], that “formalization of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really to the rarest of the rare cases”, strikes a sober chord in the current clamour for the death penalty. Given the fact that death penalty is here to stay, we need to ensure that the time honoured doctrine of rarest of rare is adhered to say that we do not end up sending a great number of people to the gallous. After all, taking life is serious business.
Executing Death Sentence: Who holds the Key?
Although, the support for death penalty as a mode of punishment is thinning by the day and it is falling into disfavor with an ever-increasing number of people the world over, India is nowhere close to letting go of it. Death penalty is based on the principle of lex talionis or “an eye for an eye”; the belief that punishment should fit the crime. Public opinion in our country is not only in favour of retaining death penalty but is also for extending it to other offences, like rape. It was under intense public opinion pressure that the Indian Legislative extended death penalty to certain cases of rape by a recent amendment to IPC, 1860 despite the fact that Justice Verma committee did not opine in favour of death penalty for the offence. .
A very vital question regarding capital punishment is whether or not death penalty has any deterrent effect on would be murderers. Beside deterrence, it exacts retribution for crimes that serves justice to murder victims and their survivors. It also deters others from committing murder for fear that they will also be executed and also that murderers will be incapacitated :once dead, they will have no opportunity to commit additional murders. As dying is one of the most common fears of people, it can be claimed that death penalty can be considered as an exemplary for the individuals who cause crimes of violence in the society or else governments are doing these criminals a favour by putting them into jails and providing food and place to live instead of executing. Economy of the nations are effected in the negative way.
On the other hand, death penalty has its other face that, it may execute the innocent, offering evidence of actual instances of erroneous convictions and executions of probably innocent people also noting two causes of miscarriage of justice, government misconduct and the politicization of the death penalty. Hugo Adam Bedeau in his, ‘The case against the death Penalty’, argues that the death penalty for murder is not as is commonly supposed, “a punishment that fits the crime”. Another major drawback is that the cost for it is quite high, greater than the cost for sentencing alternative of life imprisonment without possibility of parole. Few murderers also rationally weigh the possibility that they might face the death penalty before committing a murder. Also some research suggests that the death penalty increases the number of homicides through a “brutalization” effect. On emphasizing the sacredness of life, killing is always wrong whether by individuals or by the state, that justice is best served through reconciliation.
Delay in execution is yet another area which need utmost concern.Taking a human life is not easy. Therefore, due care and adequate caution has to be taken before an individual is deprived of his or her life by the state. If the state delays execution inordinately for one reason or the other, the delay must be counted in favour of the prisoner because living under the shadow of death is a lot worse than dying. That has been the position of law so far. However, the Apex court seems disinclined to allow this beneficial reading of the law to the aid of those sentenced to death for committing acts of terror. Justice Altamas Kabir, Chief Justice of India said “If a death penalty is to be awarded and it is there under the system, then the quicker things are done, the better it is for everybody”. This was the conflict between the principles held in the case of Mahedranath Das v. union of India and in Bhullar’s case. Justice Singhvi in Bhullar’s case enunciated “we are also of the view that the rule enunciated in Sher Singh’s case, Triveniben’s case and some other judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes”.
Another imperative aspect is the “rarest of rare” principle. Whether or not the death penalty jurisprudence set out in the Constitutional Bench decision in Bachan singh v. State of Punjab[4] had been repeatedly ignored and the “rarest of rare” principle had been followed uniformly or consistently.
In the case of the death penalty, idea of what constitutes justice glaringly varies from judge to judge. The arbitrariness of the sentencing that follows is a primary reason for seeking its abolition, whatever the jurisdiction in which capital punishment still exists.
The judgment in Sangeet & Anr. V. State of Haryana[5], delivered on 20th November 2012, ia an introspective judgment in which the Supreme Court of India expressed its concern over this judge-centric approach to the death sentence in several of the apex courts recent decisions. The Sangeet judgment[6] comes after a rare appeal to the President of India by 14 retired judges earlier in August to use his power to grant mercy under Article 72 of the Constitution and convert the capital punishment imposed on nine persons into life sentence.
The guiding law for awarding the death penalty can be found in Section 354(3) of the Criminal Procedure Code, 1973. In Bachan Singh[7], the court observed that, “the normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so”. While standardization or sentencing discretion belonged to the legislative sphere, asking the Court to state “special reasons” for awarding the death sentence was “an exercise of judicial discretion on well established principles and on the facts of each case”.
To assist courts in this “exercise of judicial discretion”, Bachan Singh laid down certain broad illustrative guidelines in the hope that courts would discharge heir “onerous functions with scrupulous care and humane concern” to fulfill the intent of the legislation that “for persons convicted of murder, life imprisonment is the rule and death sentence an exception”. Such a sentence of death ought to be given only in the “rarest of rare” cases and it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.
The case Machhi Singh & Ors. v. State of Punjab[8], also deviated from the decisions of the Constitution Bench against standardization and classification “rarest of rare” cases by court s by enumerating five categories of murder cases. Not only did Machhi Singh considerably enlarge the scope for imposing death penalty which Bachan Singh had restricted, but unfortunately the Machhi Singh decision was considered in subsequent capital punishment decisions.
In Ravji alias Ran Chandra v. State of Rajasthan[9], the Supreme Court imposed the death penalty by holding that only characteristics relating to crime t the exclusion of the ones relating to criminal, are relevant to sentencing in criminal trial. Santosh Kumar Satishbhushan Bariyar v. state of Maharashtra[10], was the first case where the Supreme Court pointed out that Ravji was rendered per incuriam as it had not followed the Bachan Singh ruling.
The Machhi Singh’s categorization of the crime was however, accepted as the broad guidelines for imposition of the death penalty in the case of Mohammed Ajmal Mohammed Amir Kasab@ Abu Mujahid v. State of Maharashtra[11].
The Supreme Court has admitted that the question of death penalty is not free from subjective elements and errors have been committed in awarding the death sentence by its own. While the court in Sangeet did not go to the extent of declaring the death sentences awarded on the basis of Ravji as per incuriam, this judgment leaves the door open for the executive to review the cases of all death row convicts as well as those convicts whose mercy petitions are pending with the President. Thus, the “rarest of rare” principle indeed mark a luck on the accused sice it may vary from judge to judge.
Conclusion:
Given the capricious nature of death sentencing, the words of the Supreme Court in Swamy Shraddanand v. State of Karnataka[12], that “formalization of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really to the rarest of the rare cases”, strikes a sober chord in the current clamour for the death penalty. Given the fact that death penalty is here to stay, we need to ensure that the time honoured doctrine of rarest of rare is adhered to say that we do not end up sending a great number of people to the gallous. After all, taking life is serious business.