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.
