Former President Pratibha Patil’s decision to grant clemency to as many as 39 death-row convicts brought the issue of the death penalty center stage. President Pranab Mukherjee has inherited 16 pending mercy petitions, including the highly politicized case of Afzal Guru; unfortunately given the nature of public response, as steered by the media, the issue is likely to be put on a backburner till after the furore dies down. However, with the relationship between the State and people being renegotiated around the world (with varying degrees of success), it is important to evaluate the justification for the death penalty in the Indian state’s arsenal before pushing the topic out of the public discourse.
Media coverage on the topic has followed a set pattern: a focus on the grisly specifics of some of these crimes, and interpreting clemency as “mercy to mass killers and rapists and killers of children”. Consequently the public debate too has oscillated between the twin themes of “retribution” and “reform”. On the one hand, there is the victim’s (and kin) right to retribution (justice) for the undeniably horrible crime, and on the other hand, the perpetrator, and his/her capacity for reform (on a somewhat tangential note, it is noteworthy that the current legal agitations on this subject pivot on altogether separate issues). While these are both important considerations, they are irrelevant to the death penalty debate. Both these criteria are too mired in the specifics, which however horrific, are transient and subject to the vicissitudes of public opinion. The only pivotal issue of enduring significance in this debate is the extent to which such power should be vested in the State.
The State is an abstraction – of powers vested in the name of the citizens to be exercised by designated state functionaries. However the different socio-economic backgrounds and attendant prejudices of these functionaries, and the inherent fallibility of human nature renders the application of state power arbitrary and susceptible to misjudgement. To minimize this, the State’s powers are defined and constrained by institutional and legal processes. Nevertheless, every day government departments yield egregious examples of subversion and overreach. The death penalty too is awarded arbitrarily. While this is true of all State power, it is unconscionable where the consequences are all-encompassing and irreversible as in capital punishment.
Much has been made of the fact that these death row convicts committed exceptionally heinous, “rarest of the rare” crimes. However this thesis advanced in Bachan Singh (1980) was never explicitly defined. Four of the five judges on the bench held that “real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. They did not define “rarest of rare”; nor are there any legislative guidelines. The fifth judge, Justice Bhagwati dissented, questioning the validity of such “exceptional” cases, and noted that without legislative guidelines, “the task of the judges becomes much more arbitrary and the sentencing decision is bound to vary with each judge”.
The former President’s record on mercy petitions has been criticized in some quarters as a politically motivated administrative dilution of the judicial process. However the lack of unanimity in the above Supreme Court judgment itself shows that the judiciary is not a neutral arbiter of law. Nor is it a monolithic institution – individual judges are motivated by their own ideology – there are abolitionist judges, there are retentionist judges. The outcome of a case is thus contingent not just on merits, but also on who hears their case. This is evident in the case of Harbans Singh versus Uttar Pradesh (1982), where three people were held equally culpable for the murder of four people, and sentenced to death by the trial court. The High Court confirmed their death sentence, as part of the legal process. Yet in the Supreme Court, appeals of two were dismissed, while one was commuted to life imprisonment. There are other anomalies of treatment in this instance, and other cases.
There is further incontrovertible proof that the judicial process is itself no guarantee of consistent application of standards and rule of law, as admitted by the Supreme Court itself. Bachan Singh mandates that mitigating circumstances pertaining to the criminal be accorded due weightage while deciding to award the death penalty. However in Ravji Rao (1996), the Supreme Court held that, ‘it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.’ This logic was then used to award the death penalty to 14 more persons in eight judgments. Subsequently the Supreme Court (Bariyar, 2009) admitted that these judgments had been “rendered per incuriam” (in ignorance). However shockingly even though the Supreme Court is cognizant of this egregious lapse of due process, it has not taken any corrective action such as setting up a new bench to review these cases afresh. The individuals concerned continue to languish on the death row. Tragically two such prisoners have already been executed: Ravji Rao (1996) and Surja Ram (1997). In an unprecedented move, 14 former judges of the Supreme Court and state High Courts have recently written to the President expressing their distress at this “gravest known miscarriage of justice in the history of crime and punishment in independent India” and requesting commutation of the remaining 13 death sentences. They write, “executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future. This matter goes to the very heart of our Constitution and the system of democratic government because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court”
Given this judicial arbitrariness, it is not evident that the individual on death row is any more culpable than the individual with a life sentence or vice versa. However there is also no certitude that the individual is culpable at all. Take the example of Carlos Deluna. In an investigation spanning six years, a Columbia University law professor, James Liebman and his students have painstakingly documented that Carlos Deluna, executed by the State of Texas in 1989, was innocent. Their investigation uncovers shocking callousness and lax standards in the original investigation, which ultimately led to the execution of an innocent man. The Professor observed, “It was an obscure case, the kind that could involve anybody. Maybe those are the cases where miscarriages of justice happen, the routine everyday cases where nobody thinks enough about the victim, let alone the defendant“. It is not a large leap of logic to see that there are abundant such “routine everyday cases” in India, and an innocent person being sent to the gallows, primarily because of his poverty, is not outside the realm of possibility.
Finally there’s the question of the State itself. The State is a construct, which draws its legitimacy and powers from shared normative standards of its constituents. The State enjoys a monopoly on violence by the very fact of these shared norms. Yet public opinion on the issue of capital punishment is highly polarized, with a significant section against its use. If the State still persists in the use of this disputed power, it is akin to the majoritarian tendencies of a mob. A democratic State should at the very least guarantee that collective acts of irreversible destruction enjoy consensus. State violence in the face of dissent is a sign of authoritarianism, and lacks democratic legitimacy. Moreover, the State at its core is purposed to maintain security and ensure development – the power to kill is clearly an overreach since incarceration alone is adequate to meet the demands of security (the argument that the death penalty serves as deterrence is mere rhetoric without any empirical proof).
It is important to debate the place of the death penalty in the Indian society once again. Moreover the debate must move beyond the adversarial lens of the rights of the victim versus the perpetrator, and evaluate the legitimacy of power of the State to kill one of its own constituents.
 Justice P. B. Sawant (former Judge, Supreme Court of India); Justice A. P. Shah (former Chief Justice, Delhi High Court); Justice B. A. Khan (former Chief Justice, Jammu and Kashmir High Court); Justice Bilal Nazki (former Chief Justice, Orissa High Court); Justice P. K. Misra (Chairman, Goa Human Rights Commission and former Chief Justice, Patna High Court); Justice S. N. Bhargava (former Chief Justice Sikkim High Court, and former Chairperson Assam Human Rights Commission) and others