“Capital punishment upsets the only indisputable human solidarity – our solidarity against death” -- Said Albert Camus. He went on to say - “To assert in any case that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good”.
The jurisprudence of abolition though honoured and accepted by over 130 countries, India remains as an exception. The courts, including the Supreme Court, repeatedly have taken a retentionist or even a deterrent stand. It is reported that only 5 per cent of the 1,790 death sentences in the country were confirmed by the High Courts. Judicial passion for vitalising and revitalising the gallows at the trial stage is disturbing. The corrective measures by the higher courts, though consolatory, is not a complete answer. It, on the other hand, would indicate the possibility for uncorrected and irredeemable errors.
The fact that the local courts go awry while imposing death penalty is an Indian reality which reflects a clear breach of the legal proposition on death penalty, laid down by the Supreme Court in Bachan Singh v State of Punjab (AIR 1980 SC 895). It was in Bachan Singh, that the Constitution Bench quoted Dan White’s case that death penalty would be justified only when “anything short of death sentence seems an inadequate response”. The Bench was categorical in its proposition-- “A real and abiding concern for the dignity of human life postulates resistance to taking a life though laws’ instrumentality that ought not to be done save in rarest of rare cases when the alternate option is unquestionably foreclosed”.
True, “the rarest of rare” component of the law was publicised, invoked and even celebrated according to the individual notions on the bench. But, the most significant principle that the gallows would be legitimised only “when the alternative option is unquestionably foreclosed” is forgotten. This happened even in the Supreme Court and as such no wonder that the trial courts often breached the further admonition in Bachan Singh that “the Judges should not however be blood thirsty” and that “ hedging of murderers has never been good to them”.
Violating SC order
Bachan Singh was decided on 9.5.1980. Believe it or not, the larger bench verdict was violated by the smaller benches of the Supreme Court. And the Supreme Court confessed so in Santhoshkumar Bariyar (2009). The Court quoting Shraddananda verdict (2008) from Karnataka observed that the imposition of death penalty often “depended a good deal on the personal predilection of the judges”. This is antithetical to the principle of sentencing and principled sentencing.
In Ravji case(1995), the Supreme Court said that the crime determines punishment and not the facets relating to criminal (read, not even his or her reformability). Thus, the judgment in Ravji contradicted the law laid down in Bachan Singh. Ravji verdict was followed by the Supreme Court in several cases which perpetuated and stabilised the gallows. Ultimately, in Rajesh Kumar (2011), the Supreme Court again confessed that Ravji was a mistake.
It is more than a mistake. It is a judicial sin. According to a letter by 14 retired judges submitted to the President on 25.7.2012, 13 persons were convicted by following the
erroneous decision in Ravji. If this much could happen with the Supreme Court, the history of death penalty in the trail courts is bound to be alarming. And no doubt, it was vulnerable to correction at least by some sane and saintly judicial voices at the higher level.
In my view, the only way to debrutalise the trial courts is to enlighten the robbed brethren on the bench about the “unquestionability” doctrine, rather than the ‘rarest of rare’ principle. The role of the political executive on the subject is extremely limited.
True, that the power to pardon as envisaged under Article 72 and 161 of the constitution is a compassionate device, which in practice remains a myth. It does not erase the rashness in sentencing at the grassroot level. The populist and sentimental approach needs to be replaced by the “counter majoritarian role” as indicated in Bariyar case. I would think that Bachan Singh has practically abolished death penalty in India. The trial courts need to honour the Bachan Singh principle.
(The writer is a lawyer in the Supreme Court and the Kerala High Court)