Why we should rethink the death penalty

We execute the poor. The rich get off.

 |  5-minute read |   03-12-2018
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Justice Kurian Joseph’s judgment of November 28 in Chhannulal; two days before he retired asks us whether a rethink on death penalty is called for.

Before we proceed, we must note Justice Joseph’s approach that the law is both severity and kindness. This has been characteristic of his approach in all matters in his career as a judge in Kerala, as Chief Justice of the Himachal Pradesh High Court and Judge in the Supreme Court.

It is reminiscent of Brecht famous phrase that “we who fight for kindness must ourselves be kind”.

This does not mean that the severity of the law would be compromised where necessary. But, the image of the law as blindfolded or angry must yield to a balance both as a matter of form and substance. The “law” and “judges” are not angels of death.

kurian-joseph_120318122458.jpgJustice Joseph was the conscience of the court. (Photo: PTI)

Blood-thirsty

The death penalty is not a stranger to India. Those in favour of the harshness of the law also espouse a thirst for retribution and public vengeance.

The contrary view is espoused not just on the ground that death penalty is irreversible and mistakes cannot be rectified. But that state executions are also a form of state sanctioned murder and inconsistent with principles of sentencing and penology.

Throughout the ages, the “public” have always not just made blood-thirsty demands for death by hanging, guillotine, electric shock, injections or otherwise. Many have also enjoyed the gruesome spectacle. The annals of life and literature are full of this.

Of course, now there are no public executions except in some countries which show beheading after supposed finding of guilt. People watch this both in horror and awe on the spot and television amidst conflicting deep psychological factors of approval and sense of inhumanity.

Usually, the death penalty is for murder and forms of treason.

Asia Bibi in Pakistan was tried for blasphemy. Would it be enough if we follow one Indian Law Commission’s view for more humane methods of execution (i.e. chemically)?

India has not signed the Convention on Torture of 1984-87 and voted in favour of the Death Penalty in the UN General Assembly in 2007 and 2012.

In India, politically private Bill for abolition was supported by the Hindu Mahasabha, NC Chatterjee pointed to innocents being hung.

In 1958, actor Prithvi Raj Kapoor wanted a Committee to examine abolition.

In 1961 and 1962 there was further support for abolition. The 1973 Criminal Code demanded reasons for imposing death penalty. The Verma Committee (2013) following the Nirbhaya rape-murder did not favour death penalty.

While the Law Commission had earlier argued for retaining death penalty in its 35th Report, the AP Shah headed Law Commission in 2015 argued against it. Delhi’s National Law School Study that death penalty is imposed on the poor and Blackshield 1976 analysis showed inconsistency in Supreme Court impositions. Recent judgments of the Supreme Court ordained special hearing in death cases.

kasab_120318122550.jpgThose in favour of the harshness of the law espouse a thirst for retribution and public vengeance. (Photo: Reuters)

Populist demands

Earlier, the Supreme Court wavered but eventually Bachan Singh (1980) emerged with the formula of death penalty of the rarest of rare case to which Machhi Singh (1983) elaborated that this meant in cases of gravest culpability with guidelines on aggravating circumstances. But many disturbing comments also come from judgments as in Surja Ram (1994) that punishment must respond “to society’s cry for justice against the criminal”.

This puts a premium on populist demands.

There are problems of delay in execution and the pardoning power.

We have to examine death penalties in the Calcutta rape case (2004), Auto Shankar (1995) Nirbhaya (2015) as also executions of Kasab (2012), Afzal Guru (2013), Yakub Memon (2015) to set a balance on atrocity and terror cases even though in some cases (such as Afzal) great doubt exists.

In the Justice Kurian judgment (2018), Chhannulal used a knife to kill three members of the Sahu family and caused grievous injury to another. Earlier, in another case, the accused had been acquitted of rape. The trial court and High Court denied mitigating circumstances.

The Supreme Court tellingly asked whether the accused had attempted to positively reform himself and genuinely regretted his act as indicated by Bachan Singh. On this, all three judges (Kurien Joseph, Deepak Gupta and Hemant Gupta) felt that death be commuted to life. Thus, the ‘reform’ and rarest of rare tests were applied.

amnesty_120318122604.jpgWe who fight for kindness must ourselves be kind

Arbitrarily imposed

But, two judges (Gupta and Gupta JJ) without reasons disagreed with Justice Joseph’s view that the time had come to review where death penalty be abolished, relying on the Law Commission’s report that death penalty was “arbitrarily and freakishly imposed” and had not served useful deterrent effects.

But even in this case of intentional and bloody murder, all three judges felt that death sentence be commuted to life.

Are we now saying the death penalty be reserved for rape, murders and terrorism?

But all three judges agreed that though the law presently permitted death penalty, the element of reformist potential cannot be ignored. The case for abolition of death penalty is supported not just by the Law Commission, but also by the Amnesty and Delhi National Law School reports.

We execute the poor. The rich get off.

The throw-away sentence of the Supreme Court that populist demands must be accepted defeats the rule of law as for Asia in Pakistan.

The lack of deterring effect undermines continuing death penalty. The reformist perspective is significant. We need to take the final step towards abolition amidst the horrifying pathological drumbeat demanding death.

Justice Joseph was the conscience of the court. He shall be missed.

(Courtesy of Mail Today)

Also Read: 6 reasons why death penalty will not deter child rapes

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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