No room for uncertainty in awarding death

Death sentence exists in our statute book today. The Supreme Court in Bachan Singh vs State of Punjab case (1980) has upheld its validity. We are, therefore, left with two options: Parliament passes a law abolishing death sentence or Supreme Court revisits its verdict in Bachan Singh case. However, in view of over 130 countries abolishing capital punishment, a strong on-going campaign for its abolition and recent developments, one is compelled to rethink objectively on whether death penalty should continue.

The legal process resulting in the award of death penalty, as acknowledged world over, is not free from dangers of discrimination and arbitrariness. From the stage of registration of crime, investigation and trial, several influences work. Lack of proper and scientific way of investigation, political interference, money power, bias due to religion, caste and handicap due to poverty etc, play an important role in criminal cases.

These factors, in slightly different forms, continue to operate even during the trial. Powerful and rich litigants engage best legal services for their defence. But, in addition to all these factors, subjectivity of the judge plays an important role in the sentencing exercise. His likes and dislikes, prejudices and predilections in relation to crime decide the fate of the convict, not the mitigating circumstances.

Emotions and sentiments take precedence over fairness and rational objectivity. This judge-centric approach continues even up to the final stage. If the sentence involves only a penalty and imprisonment, even if it is wrong, one has no option but to tolerate it. But no such inherently flawed approach can be accepted if it is a question of death sentence which is irreversible. Later realisation of error by the court cannot bring the dead person back to life.

A serious but frank admission by the highest court reflects on how death sentence can be grossly arbitrary. In Ravji Rao vs State of Rajasthan case (1996), the Supreme Court said that “society’s cry for justice” should be reflected in awarding sentence. This flawed approach, seemingly based on theory of revenge, has unfortunately been followed in several judgments. This wrong approach led to a plea by 14 former judges to commute the death sentence of 13 convicts, but unfortunately, two convicts (Ravji Rao and Surja Ram) were executed in the years 1996 and 1997.

Collective opinion of the public should not be allowed to affect the sentencing exercise as it involves a solemn duty of the court to act fairly and in accordance with the constitutional resolve to uphold the sanctity of life.

Unless the criminal justice system takes care of all these serious shortcomings (others could be pointed out in addition to these) and eliminates the judge-centric subjective approach resulting in arbitrariness and discrimination, the death penalty should itself be kept in abeyance. There ought to be a mechanism which assures that meeting out death as a punishment is not couched in uncertainty and it is not a game of chance; that it has been done objectively and after fairly taking into account the mitigating circumstances, unaffected by the collective view of the society.

Till this is achieved, there should a complete moratorium on award of death sentence. If ultimately, all the processes commencing from investigation to sentencing by the highest court are still found to be having lurking doubts as to individual biases and subjectivity coming in the way of the sentencing exercise, it will not only be safe but fair to say that death penalty should not be awarded. The UN General Assembly adopted the Resolution 2/149 calling upon countries which still retain death penalty to observe moratorium till its abolition. However, India is one among the 59 countries which continue to retain death penalty.

“Lethal lottery”

The joint report of Amnesty International India and People's Union for Civil Liberties (Tamil Nadu and Puducherry) in 2008 titled “Lethal Lottery: The Death Penalty in India,” has pointed out a glaring flaw: the selectiveness in awarding death sentence against the marginalised. The report said: “It goes without saying that the less wealth and influence a person has, the more likely they are to be sentenced to death.”

The moot question is whether the death penalty is justified in view of Article 21 of the Constitution protecting life and human dignity. If the procedure as mentioned above is fraught with the danger of arbitrariness and unfairness, it will not be just, fair and legal under Article 21.

The state cannot support or justify award of death sentence on the ground of retribution or revenge. These human traits cannot be attributed to the state. The state should always stand by welfare principle acknowledging that life is sacrosanct. The state can, in no circumstance, be revengeful.

Looking at it from a different angle, the existence of death penalty in the statute and the possibility of awarding death sentence very often satisfy the retributive wish of the society, which in turn develops a mindset in favour of death penalty. Such a mindset fails to see reason or rationale.

The belief that death sentence acts as a deterrent has proved to be wrong on the basis of recent studies. The question of morality and ethical arguments in support of death penalty or against it becomes meaningless when the state recognises itself as the protector of life.

(The writer is an advocate in the Supreme Court)