In an essay written in the Yale Law Journal in 1989, scholar Paul Whitlock Cobb Jr. discussed the significance of mercy in death penalty. He talked about various facets of compassion. However, he lamented that “mercy, which encompasses the discretion of decision-makers at every stage of the death penalty process, has been eroded by politics and an increasingly bureaucratised capital punishment system”.
The delay in execution of the convicts in the Nirbhaya case has led to anguish and dissatisfaction among the common people. A plea for mercy stands rejected by the President at an alarming speed. In the meantime, political parties also tried to capitalise on the public sentiment in a blame game with one another, as the Delhi Assembly election nears.
The aggression on the streets should not replace an informed debate on the death penalty. It is an indubitable fact that what was done to the victim was an extremely heinous crime that warranted a severe and meaningful punishment. The grief of Nirbhaya’s parents is inestimable. We need to support them even while opposing death penalty. Empirically, capital punishment has never been an effective remedy against crimes. It does not act as a deterrent.
Amidst the populist emotions, unpopular views may not be well received. No one will now talk about the age of the accused or their social, educational or economic background. No one would ask if they had any criminal antecedents, or if they are reformable. No one will also dare talk about a possible non-involvement of any one among the accused in the crime. If at least one among them, or more than one, had no role in the crime, despite the conviction, how the state would be able to indemnify the life, once it is taken away, is again a question that may remain unpopular.
American legal scholar Jack Greenberg, in his study, has put the issues in a nutshell: “The contemporary debate over capital punishment has been conducted principally in terms of whether it is an effective deterrent, appropriately retributive, racially discriminatory, arbitrary or inevitably prone to error.” (Capital Punishment as a System, Yale Law Journal, Vol. 91, 1982)The history of death penalty in India is full of judicial fallacies and constant inconsistencies. A Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab (1980) authoritatively laid down the law on the topic. The court, after an extensive survey of precedents and global jurisprudence on the topic, said that death penalty is permissible only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”.
Nirbhaya’s murder indisputably belongs to the rarest of rare category. It also shook the conscience of the whole world. The question however, is whether the alternate option, namely imprisonment for the whole life, is “unquestionably foreclosed”. Such a discourse requires an ambience of genuine contemplation and deep understanding.The proposition in Bachan Singh was not properly applied by several subsequent Benches of smaller strength. Though the “rarest of rare” doctrine was invoked frequently based on the individual notions of judges, the examination whether “the alternate options are unquestionably foreclosed” was seldom done.
Bachan Singh said that “(the) judges should never be bloodthirsty” and that “hanging of murderers has never been too good for them”. More importantly, the Constitution Bench warned that the judges should not be “oracles or spokesmen of public opinion”. It advocated for an accused-centric approach based on the reformability of the individual. But even the Nirbhaya verdict expressly referred to collective conscience as a reason for its conclusions.
The seeming contradictions in the top court verdicts on death penalty would shock legal minds. In Santosh Kumar Bariyar (2009), a Division Bench of the court took note of an earlier decision in the Swamy Shraddananda case in which the court revealed that sentences of death penalty often depended upon “the personal predilection of the judges constituting the Bench”. In the Ravji case (1995) the court said that it is the nature of the crime, and not the factors relating to the accused that are relevant to determine the punishment. This was diametrically opposite to the reformative jurisprudence in Bachan Singh. But the erroneous decision in Ravji was followed in at least six subsequent cases. The top court was generous enough to acknowledge this serious error in the confessional verdict in Santosh Kumar Bariyar (2009). V Venkatesan, in a 2012 essay, enlisted the names of 13 convicts who were executed illegally and erroneously.
Curiously, 14 retired judges wrote a letter to the President in 2012 requesting him to commute the death sentence of 13 death convicts, as their convictions were erroneous. A bench headed by Chief Justice Sathasivam in January 2014 commuted the death sentence of 15 convicts. The jurisprudence of death penalty in India thus remains convoluted and complex, and in the process, justice often became a casualty.
Charles L Black wrote the book Capital Punishment: The Inevitability of Caprice and Mistake way back in 1974. Black highlighted the individual and institutional limitations leading to arbitrariness in the decisions on life. No human-made system can ever claim to be fault-free and immaculate.Globally, among the members of the UN, more than 135 countries have abolished the death penalty in law or in practice. The preference is for more effective and humane alternatives. As Albert Camus famously said: “Capital punishment upsets the only indisputable human solidarity—our solidarity against death.”