The applause over the death sentence pronounced for the Nirbhaya killing and the almost euphoric media and public reaction to it have cemented the continuance of the death sentence in India. For a country bred on a pacifist philosophy with the Apostle of non-violence being the proclaimed Father of the Nation, the huge support for enforcing a death sentence is baffling. While countries that are neither pacifist in their philosophy nor blessed with a Father like ours have done away with this practice as barbaric, India stands steadfast. And while an overwhelming number of democratic and modern countries have declared that civilised society has no room for State turning executioner, India stands as a solitary reaper still propagating it.
The anti-death penalty lobby in India has grown stronger over the years but all that is required is one Nirbhaya case to make people return to the fold of State-sponsored killing—the State’s involvement in the exercise of taking life being the thin dividing line between “justified execution” and “murder”.
A Constitution Bench of the Supreme Court had several decades ago, by a majority of four Judges to one (the minority being Justice Bhagwati—later a Chief Justice of India) upheld the constitutionality of the death sentence and the 1860 enactment which imposed the death penalty found judicial approval. But over the years, the judicial conscience has mellowed and shown a justifiable hesitation in taking a man’s life through use of State machinery. Thus evolved the “rarest of rare doctrine”. An expression which at best could be termed as being delightfully vague! For what is rarest of rare for one may not carry the same aura of rarity for another.
Especially in a country where the Supreme Court sits in Benches of two or three judges, this difference in outlook could mean that the thread between being awarded the death sentence or being committed to prison would hang on which Bench of the Court was hearing the case. Thus, we saw a series of death sentences being handed out in different crimes through judgments which were almost “cut and paste” by a given Bench while in a case that many judges would have gladly condemned the convict to death another Bench invariably commuted the sentence to imprisonment for life. Should a man’s life or death be dependent on the ideology of the Judges hearing the case and if such inconsistency in applying the law actually exists, would the death sentence not be fraught with sufficient uncertainties becoming violative of the most precious protection in the Indian Constitution—Article 21, the right to life and liberty?
That the continuation of the death sentence is not gladly accepted but is treated as a necessary evil is now becoming apparent from the expanding jurisdiction the Courts have given to themselves to repeatedly enquire into and hear such cases. Apart from the doctrine of “rarest of rare”, Courts have introduced the mitigating circumstances test. Review of judgments, which are normally considered in the hallowed privacy of their chambers by the judges without lawyers or parties present or arguing, in the case of death sentences have now become open court affairs with a full hearing. Almost akin to a second appeal before the Supreme Court itself.
The President’s delay in considering the Constitutionally guaranteed mercy petition has been frowned on by the Court and in a series of cases, persons duly sentenced to death whose review petitions and subsequent curative petitions had been repeatedly rejected by the Supreme Court, found reprieve through commutation of their death sentences to life on account of such delay. Because prolonged incarceration under the threat of death caused by a callous State in delaying the consideration of a mercy petition would in itself amount to a form of torture and run foul of Article 21. After all, is it not said that often the threat of death is worse than death itself? The Court in a most enlightened judgment applied this theory even though its consequence was that child rapists, brutal murderers and even the assassins of Rajiv Gandhi escaped the noose.
It is, therefore, clear that India as a country has been slowly moving towards joining other countries of the free world in abolishing the death penalty. Persons who were at one time virulent anti-abolitionists are slowly moving to a more humane point of view. Yes, the movement has been slow but it has been steady nonetheless. Hopefully one day, in the not too distant future, we shall see the death penalty abolished. But then, along comes a Nirbhaya case and sends everybody scrambling back to the familiar feelings of revenge, retribution, hate and final glee that “justice has been done” and injects fresh life to the death penalty.
C Aryama Sundaram
Senior Advocate, Supreme Court
aryama_sundaram@hotmail.com