Death Penalty: Inconsistent Sentencing, Political Mercy Pleas, Erroneous Convictions. Abolition, A Systemic Correction

Inconsistent Death Penalties

Had the wheels of justice ground faster—instead of at the proverbial snail’s pace—this man would have been hanged by now. The convict from a remote village in the Nanded district of Maharashtra was accused of killing his wife and four children in 2007. The District Sessions Court awarded him death sentence which was upheld by the High Court and the Supreme Court. His review petition was dismissed by the Supreme Court in 2012, which it now ‘recalled’ observing that all the courts relied on an ‘extra-judicial confession’ and ‘ignoring medical evidence’. His sentence has been commuted to life imprisonment. (Choudhary, Amit Anand. “SC admits mistake in awarding death sentence, commutes it to life sentence.” The Times Of India. October 2, 2019. https://bit.ly/31SNFSW

In May 2019 the Supreme Court had acquitted six persons whom it sentenced to death ten years before in a case involving dacoity, gang-rape and murder of five persons of a family in Nashik in 2003. The case escalated through the tortuous judicial processes and the Apex court confirmed the death sentences on April 30, 2009. In its latest judgement the Court observed that the accused were

“… from the lower strata of society and are very poor labourers … false implication cannot be ruled out since it is common occurrence that in serious offences, sometimes innocent persons are roped in.” (Mahapatra, Dhananjay. “6 awarded death by SC in 2009, acquitted in 2019”. The Times Of India. May 5, 2019. https://bit.ly/2oVJbwu)

A google search for “SC admits mistake”, prompted by the first report cited above, yielded five results. Here are the remaining three: “SC seeks Centre's reply on plea challenging mandatory death penalty under SC/ST Act” (The Times Of India. May 10, 2019. https://bit.ly/2MmvHBH); “Decade after awarding death, SC commutes sentence to life imprisonment for delay in deciding mercy plea”. (Choudhary, Amit Anand. The Times Of India. February 22, 2019. https://bit.ly/2LUYpuA) and “SC reverses man’s death sentence; revives debate on extreme penalty” (Mahapatra, Dhananjay. The Times Of India. November 28, 2018. https://bit.ly/2pTbbRP). All these cases were reported by The Times Of India between November 2018 and October 2019. 

Socio–Politics Of Mercy Petitions

On March 8, 1993, an APSRTC bus from Hyderabad was on its way to Chilakaluripeta in the Guntur district of Andhra Pradesh. In the pre-dawn hours, it was waylaid by two dacoits, Sathuluru Chalapathi Rao and Gentela Vijayavardhan Rao, as it cleared the town of Narasaraopeta and was just twenty kilometres from its destination. The duo brandished deadly weapons and threatened the passengers to hand over their valuables. One of them carried a can of petrol and sprinkled it from the back of the bus to the front entrance. They threatened to set fire to the bus if their demands were not immediately met. Whether some passengers resisted or whether the dacoits panicked was not clear but the duo closed the door and carried out their threat. They set fire to the bus and twenty-three sleeping passengers were engulfed in flames and charred to death. Several others sustained serious burn injuries. The culprits were arrested ten days later and the case culminated in the Supreme Court which upheld the death sentence on August 28, 1996. The Supreme Court judgement which narrated the gruesome details of the crime was reported in the India Kanoon portal: “Gentela Vijayavardhan Rao And Anr vs State Of Andhra Pradesh on 28, August, 1996” (https://indiankanoon.org/doc/1517391/). George Fernandes and Rajni Kothari filed a mercy petition. President Shankar Dayal Sharma rejected it. Mahaswetha Devi filed a second mercy petition. The Supreme Court stayed its own sentence in view of the pendency of the mercy plea. Finally, President K. R. Narayanan commuted their sentence.      

 

On August 14, 2004, Dhananjay Chatterjee an ‘impoverished guard’ in a Kolkata building was hanged. “Although bearing a Brahmin name, Dhananjay Chatterjee was far from being a member of the Kolkata bhadralok, or intellectual elite…His execution followed a shrill campaign…”, wrote N. Jayaram:  “How India hanged a poor watchman whose guilt was far from established” (Scroll.in. July 21, 2015. https://bit.ly/35d7FSe). An emerging 24/7 news channel added its bit to the shrillness of the campaign. The misfortune of birth status added to Chatterjee’s misery of poverty. He had spent fourteen years in jail before he was hanged. President, A. P. J. Abdul Kalam rejected his mercy plea. However, it must be said in his defence that although the President is vested with the authority to pardon a criminal under Art. 71 (1) (c) of the Constitution, in practice, the President merely follows the recommendation of the Home Ministry. The case did not arouse ‘the quality of mercy’ in the conscience of civil rights activists. No NGO or civil rights group knocked on the doors of the Supreme Court to open it in the small hours to hear a revision plea. No newspaper headlined the next day “And they hanged Dhananjay Chatterjee”! 

 

If the frenzy of misplaced social vigilantism took its toll in Chatterjee’s case it was the political frenzy that impacted the Indira Gandhi assassination case. This is not to say that the assassins did not deserve death sentence. One of the assassins, Beant Singh fired thirty-three bullets into her body. He was killed instantly when her ITBP security guards opened fire. A second assassin Satwant Singh fired twenty-three bullets but was seriously injured in the crossfire with a bullet lodged in his spine. In normal circumstances, his condition would have rendered him ineligible for hanging. A plea to the Supreme Court to allow him to recover was disallowed. A medical team hastily removed the bullet to ‘ready’ him for the hanging. (Bhatnagar, Rakesh. “The accused did not want to be defended”. DNA. October, 30, 2009 https://bit.ly/2Iw5T5c). Ram Jethmalani pleaded in vain that the case against the third assassin, Kehar Singh was flimsy and highly circumstantial and did not ‘prove guilt beyond all reasonable doubt’. The President disallowed mercy petitions with utmost dispatch. 

 

The partisan approach of civil rights groups, political parties, state legislatures and the ‘intelligentsia’ in seeking mercy for convicts has not escaped the attention of the Supreme Court. Balwant Singh Rajoana, who was sentenced to death for killing Punjab Chief Minister Beant Singh in 1995, did not file a mercy plea but the NGO ‘Lawyers for Human Rights International’ sought a review of the trial court verdict. The Punjab state legislature passed a resolution seeking mercy for Rajoana. Similar resolutions were passed by the Jammu & Kashmir legislature in the Afzal Guru case and the Tamil Nadu legislature in the Rajiv Gandhi assassins’ cases. On the other hand, the Court pointed out; poor people like Dhananjay Chatterjee who does not have societal support always got a raw deal with respect to mercy petitions. (“Why wide disparity in treatment of mercy pleas? SC asks” The Times Of India. May 27, 2012. https://bit.ly/31Q51jf). The Supreme Court, however, agreed that there was subjectivity and it was individual perceptions of the judges that decide whether a convict should be awarded death sentence or life imprisonment. (Mahapatra, Dhananjay. “Judges' perception dominant factor in death or life sentence: SC”. The Times Of India. Jan 25, 2011. https://bit.ly/30MffzX).

Abolition, A Systemic Correction

It is the grey areas in the administration of criminal justice that cause these anomalies. If all are equal in the eyes of the law, why was the mercy plea of Dhananjay Chatterjee rejected and the one in the Chilakaluripeta bus burning case entertained? The contrast is stark. A person whose crime might not have been ‘proven beyond all reasonable doubt’ was sent to the gallows but the sentence of the duo who murdered twenty-three people in cold blood was commuted. In the Neeraj Grover murder case (2008) a small time film actress (whom Grover, creative head of Synergy Adlabs was helping to find a foothold in the film industry) and her boyfriend were accused of committing the crime. The duo cut up Grover’s body into 3oo pieces, packed them in gunny bags and was carrying the body to burn it deep in a forest. Mumbai tabloids published other macabre details of the crime and its aftermath. According to one, after the boyfriend stabbed Grover, with the dead body lying in the next room, the duo had sex twice before their ‘next operation’. The actress was sentenced to three years, not for murder but for trying to destroy evidence. She was released by the end of the trial. The boyfriend was sentenced to three years for destroying evidence and ten years for culpable homicide, with both sentences to be run concurrently. In the Naina Sahni murder case (2013) the accused, Sushil Sharma cut up her body and tried to burn the pieces in a restaurant tandoor. He was not awarded death sentence. In the Jessica Lal (2010) and the Priyadarshini Mattoo (2010) cases too no death sentences were awarded. In two ‘high profile’ murder cases in Hyderabad the well-heeled accused, to use an Americanism, ‘walked’.

In an article in the ‘Journal of Law and Criminal Justice’, Arvind P. Bhanu mentioned that fourteen retired judges wrote to the President that “Supreme Court had erroneously given the death penalty to 15 people since 1996”. (“Arbitrariness in Capital Sentencing System: No Disappearance of Furman-Like Challenge”. Journal of Law and Criminal Justice. December 2014, Vol. 2, No. 2, pp. 187-199). The Law Commission Report on Death Penalty (No. 262, 2015) pointed out that the differences in the quantum of punishment was due to the interpretation of ‘mitigating circumstances’, such as age. According to it, the data collected “substantiate the picture of inconsistent, arbitrary and judge-centric application of the death penalty.” (p.149). The following portion of the report is worth citing verbatim:

“Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.” (pp. 223-224)

The report, however, takes into consideration concerns regarding terrorism and makes the following caveat:

“… [C]oncern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences. The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.” (p. 226)

The inconsistencies and vagaries in the application of law need no further elaboration. It is a systemic failure and needs systemic correction. Is it time the death sentence is abolished for all crimes except terror-related cases? The most compelling argument for the abolition of death sentence is that it is irreversible, even if at a later date fresh evidence surfaces to prove the innocence of the accused. It is also advisable to make the definition of ‘life sentence’ not amenable to subjective interpretation. In serious crimes like homicide, a ‘life sentence’ should mean ‘till the normal end of a life, without remission’. In serious crimes against humanity it may be necessary to avoid philosophical distinctions such as whether it is ‘retributive’ or ‘reformative’. The punishment should be seen only as a ‘deterrent’ till such time the society evolves to a level when a further revision could be considered.

Playing God, Ungodly?

How would it be if it were possible to ‘order’ the birth of a baby girl who would grow to be as beautiful as Venus and as intelligent as Marie Curie? Or the birth of a baby boy who would grow to be as handsome as Adonis and as intelligent as Einstein? How would it be if it were possible to choose the colour of the eyes, hair and skin tone? Does the idea sound outré, utopian? Recent scientific advances indicate that the idea of ‘designer babies’ is neither all that outré nor all that utopian. It is a possibility in the not too distant future. It is the ethics of the issue that should worry mankind. Is genetic engineering ethical or even desirable?

Man ‘created’ angels, gods and goddesses in his own image. It is for this reason they are referred to as anthropomorphic gods. In his ‘creation’ man made gods and goddesses the most beautiful creatures; again beauty being a product of his own imagination. The creation of anthropomorphic gods is but an expression of man’s endless quest to replicate nature or improving upon it. It was an enticing subject that drew artistes and scientists alike. In general the artistes were wary of the dangers of replicating or improving upon nature. Here are a few examples. Mary Shelly’s 1918 Gothic novel ‘Frankenstein or The Modern Prometheus’ described the horrors that would result in tinkering with nature. So did Aldous Huxley’s dystopian ‘Brave New World’ (1932) and Ken Follett’s science-fiction ‘The Third Twin’ (1996), but to a less horrific degree.

But the scientists would not be deterred. For as long as the history of science could be traced, maverick – for want of a better word – ‘scientists’ in many nations conducted experiments with the objective of transmuting base metals into gold, to find a universal solvent and to find a potion that would extend longevity. The ‘scientists’ were collectively known as alchemists. Although for long they were dismissed as charlatans and although they did not achieve the objectives they set out to do, their work had advanced science as far as the purification of metals.

In recent times genetic engineering has been focusing on four areas of human development. They are muscle enhancement to improve athletic performance; memory enhancement to improve intellectual performance; growth hormone treatment to improve physical stature and selection of sex and genetic traits of children. The selection of sex is already a reality. It must be noted that gender screening tests are illegal in India. There are several companies in the USA which already offer ‘sex selection’ with certain pre-conditions that would preclude its possible misuse. The process/product is offered to only those couples who have one child and who desire to have a child of the opposite sex to ‘balance their families’.

The theory of eugenics is as old as Aristotle. It appears the fourth century BCE philosopher had suggested that ‘men should tie their left testicles prior to intercourse if they wanted a male child’! In ‘The case against perfection: ethics in the age of genetic engineering’ (2007), Michael J. Sandel discussed both the pros and cons of genetic engineering. As societies evolve, old mores give way to new norms. Sandel cites a character from the 1981 British historical film, ‘Chariots of Fire’. It was the story of two athletes, Eric Liddell, a devout Scottish Christian and Harold Abrahams, an English Jew who competed in the 1924 Paris Olympics. Prior to 1924, employing professional coaches for training to compete in amateur sport was scoffed at. It was considered ‘ungentlemanly’. Abrahams defied the custom as he felt that it was just a cover for anti-Semitism. The point being made is that today employing coaches is an accepted norm. In fact it is unimaginable for any athlete to go into high level competitions without a personal trainer.

Much of the opposition to genetic engineering stems from the negative connotations associated with eugenics. The objective of eugenics was to increase the proportion of healthy and intelligent individuals in the general population. Conversely the poor and unhealthy were prevented from conceiving by forced sterilisation. It is generally assumed that forced sterilisations as a measure of eugenics were practised only in Nazi Germany. According to a report published in the website PsychCentral.com, by the 1930s thirty states in the USA had sterilisation laws. Between 1927 when Carrie Buck, the first victim of the Virginia sterilisation law was sterilised and the 1970s, 65,000 Americans with ‘mental illness or developmental disabilities’ were sterilised. When the Buck case reached the Supreme Court, Justice Oliver Wendell Holmes ruled:

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough.” (See Tartakovsky, Margarita. ‘Eugenics & The Story of Carrie Buck’. July 8, 2018. Accessible from http://bit.ly/2mZHs8Q).

To forestall genetic engineering for ethical considerations amounts to throwing the baby out with the bathwater. Scientists believe that the key to finding remedies for diseases like thalassemia and cancer is in genetic engineering.

When the banking industry introduced information technology tools in the 1980s doomsday predictors hollered that it would lead to thousands going out of employment. We live in a world of over the counter (OTC) remedies and food supplements for growth and beauty enhancement. Not an hour passes when we don’t see bamboozling advertisements about them on television. Bariatric surgery and cosmetic surgery for beauty enhancement are fairly common with only the cost being the limiting factor. Would it be the only limiting factor for ‘made to order babies’ too? Or are ethics involved?

Should we in the end accept and live with advances in genetic engineering or heed the warning of Mary Shelly and Aldous Huxley about ‘Promethean hubris’? The last word in the debate is yet to be pronounced!

The article first appeared in TheTimes Of India Blogs