by or before the Court again but only before a higher forum i.e. an appellate forum, Schemes and Mind Maps of Law

Download by or before the Court again but only before a higher forum i.e. an appellate forum and more Schemes and Mind Maps Law in PDF only on Docsity! International Environmental Law Research Centre HANG THEM NOW, HANG THEM NOT : INDIA’S TRAVAILS WITH THE DEATH PENALTY published in 40 Journal of the Indian Law Institute (1998), p. 143 Dr S. Muralidhar This paper can be downloaded in PDF format from IELRC’s website at http:/Avww.ielrc. org/content/a9803.pdf International Environmental Law Research Centre International Environment House Chemin de Balexert 7 1219 Chatelaine Geneva, Switzerland E-mail: info@ielrc.org Table of Content Introduction a. Constitutional Validity of Death Penalty b. Applying the Test of ‘Rarest of Rare’ Non-adherence to the Pre-sentencing Hearing Requirements a. The Law b. The Practice The Arbitrariness of Laws and Procedures Hanging an Innocent Person No Right of Appeal Uncertainty of the Mercy Jurisdiction The Retentionist Mode Death Penalty Statutes eoaon78 Death Penalty as a Cruel Punishment Indian Position South African Position International Practice Icc aoa Non-violence and Peace foe) 10 10 1 1 12 12 14 14 15 17 17 18 The majority of four judges in Bachan Singh negatived the challenge to the constitutionality of death penalty, affirmed the decision in Jagmohan and overruled Rajendra Prasad in so far as it sought to restrict the imposition of death penalty only to cases where the security of the state and society, public order and the interests of the general public were threatened. The Court continued to draw support from the Law Commission’s 35th Report. The fact that there was, among rational persons, a deep division of opinion on this issue, was itself, according to the court, a ground for reject- ing the argument that retention of the penalty was totally devoid of reason and purpose. The perceived majori- tarian view supporting retention meant that death penalty as an alternative punishment was neither unreason- able nor lacking in public interest. The court rejected the second limb of the challenge to the validity of section 354 (3) of Cr.PC on the ground that it permitted imposition of death penalty in an arbitrary and whimsical manner. It explained that the requirement under section 235 (2) for a pre-sentence hearing of the accused coupled with the requirement that the sentence of death had to be confirmed by the High Court under section 366 (2) of the Cr.PC, meant that errors in the exercise of the judicial discretion could be corrected by the superior courts. Although the court was not inclined to lay down standards or norms for guiding the exercise of judicial discre- tion, it accepted the suggestions of the amicus curiae! as to what could generally constitute aggravating and mitigating circumstances. The court recorded the following possible aggravating circumstances suggested by the amicus curiae: (a) murder committed after previous planning and involves extreme brutality; or (b) murder involving exceptional depravity; or (c) murder of a member of any of the armed forces or of any police force or of any public ser- vant and committed: i) while such member of public servant was on duty; or ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty Among the mitigating factors suggested by the amicus curiae were: 1. An offence committed under the influence of extreme mental or emotional disturbance. 2. The age of the accused. If the accused was young or old, he was not to be sentenced to death. 3. The probability that the accused would not commit criminal acts of violence as would con- stitute a continuing threat to society. 4. The probability that the accused could be reformed and rehabilitated. The state was to prove by evidence that the accused did not satisfy the conditions (3) and (4) above. 5. The accused believed that he was morally justified in committing the offence. 6. The accused acted under the duress or domination of another person. 7. The accused was mentally defective and that the said defect impaired his capacity to appre- ciate the criminality of his conduct. The court termed these euphemistically as ‘indicators’ and ‘relevant circumstances’ attitude required to be accepted. It, however, indicated that these were not exhaustive and that the court did not want to be seen as fettering judicial discretion in the matter of sentencing. The concluding remarks in the majority opinion marked the real shift in the judicial attitude towards sentenc- ing. It also reflected the changing perceptions of the judiciary influenced as it was by major strides in human rights jurisprudence. The majority said:!3 “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” In Machhi Singh v. State of Punjab! the court summarised the propositions emanating from Bachan Singh and spelt out the task for the sentencing judge. It said:!5 A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The court then explained how it envisaged the guidelines would apply. The questions that the sentencing court had to ask were:!6 (a) Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender? Thus both in Jagmohan and Bachan Singh, the court bowed to legislative wisdom and shrank away from strik- ing down the death penalty. But the similarity in the two decisions ended there. The change brought about by Bachan Singh, as explained by Machhi Singh, was significant. There was an affirmation that death penalty was the exception and not the rule. There was an affirmation that death penalty was the exception and not the mule. The formulation of the rarest of rare test, credited craftily by the court, still shy of being accused of legislating, to the amicus curiae who assisted it, acknowledgment of reformation and rehabilitation of the delinquent as one goal of punishment. It cannot be gainsaid that the rate of imposition of death penalty would definitely have been higher but for Bachan Singh. In retrospect, Bachan Singh was neither a small nor insignificant achieve- ment for the abolitionists. Bachan Singh also showed abolitionists that the challenge to the constitutionality of the death penalty was not a one-time exercise and had to be revived at regular intervals. Perhaps taking a cue, the challenge was renewed, albeit unsuccessfully, in Shashi Nayar v. Union of India.!7 The petitioner requested reconsideration of Jagmohan and Bachan Singh on the ground that both those decisions were based on the 1967 report of the Law Commission which did not reflect current reality. However, the court was unmoved. It took “judicial no- tice... of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today”.!8 It was firm that “the present is, therefore, the most inopportune time to reconsider the law on the subject”.!9 It perhaps this continuing perception of a real link be- tween rising crime rate the severity of the punishment, the former justify ing the latter, that is the real stumbling block in the re-examination of the necessity for retention. b. Applying the Test of ‘Rarest of Rare’ Machhi Singh requires the trying court to draw up a balance sheet of the aggravating and mitigating circum- stances and opt for the maximum penalty only if even after giving the maximum weightage the mitigating circumstances, there is no alternative but to impose death sentence. However on an analysis of the decisions handed down by the Supreme Court since Bachan Singh, it appears that the exercise of balancing the aggravat- ing and mitigating circumstances is rarely performed.?° The reasons afforded by the court for either confirm- ing death sentence or commuting it appear to invariably turn on the nature of the crime or on the role of the offender in the crime. The background of the offender and the possibility of his reformation or rehabilitation is seldom accounted for.?! Dispensability as a Special Reason Kuljeet Singh v. Union of India2? was a decision rendered in a writ petition by the accused Ranga and Billa after their special leave petitions were dismissed by the Supreme Court. They were sentenced to death for killing a teenaged girl and her younger brother after giving them a lift in their stolen car while moving in the roads of Delhi. The court found that the death of the children was as a result of “savage planning” which bore a professional stamp. It said: “The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security”.”3 In another instance, the Supreme Court was dismayed that the sentencing court had adopted a not too serious approach in deciding whether the accused deserved to die. The Sessions Judge had observed in his order that “the accused has committed a terrific double murder and so no sympathy can be shown to him”.”4 The Supreme Court disapproved of this and said:25 The reasons given by the learned Sessions Judge for imposing the death sentence are not special reasons within the meaning of s. 354(3).... and we are not sure whether, if he was cognisant of his high responsibility under that provision, he would have necessarily imposed the death sen- tence. Shankarlal Gyarsilal Dixit, a married man, had been convicted and sentenced to death for raping and murdering a girl of five years. The Supreme Court found the vital link in the chain of circumstances missing and acquitted him. The poignancy of the situation was captured pithily by the court when it said:2 Unfaithful husbands, unchaste wives and unruly children are not for that reason to be sentenced to death if they commit murders unconnected with the state of their equation with their family and friends. The passing of the sentence of death must elicit the greatest concern and solicitude of the judge because, that is one sentence which cannot be recalled. Similar Crime, Different Punishment While certain kinds of crime have invariably been looked upon with severity and have unfailingly invited the maximum sentence - these include rape and murder of minor girls?7; the kidnapping and murder of a male child?8 or the merciless killing of a sister-in-law and her children29 - there are several instances where a simi- lar crime need not invite the same punishment. The case that demonstrates this best is Harbans Singh v. State of U.P.3° Harbans and three others, Mohinder Singh, Kashmira Singh and Jeeta Singh were involved in the murder of four persons. With Mohinder dying in a police encounter, the remaining three stood trial and were convicted and sentenced to death by a sessions court. This was confirmed by the High Court. What followed in the Supreme Court demonstrated how unpredictable the fate of an accused, no different from another, could be. Jeeta Singh’s SLP was dismissed on April 15, 1976. He was executed on October 6, 1981. Kashmira’s SLP sent from the jail was entertained and on April 10, 1977 a different bench of Bhagwati and Fazal Ali, JJ., commuted his sentence to life imprisonment. 4. The brutal killings of Rajiv Gandhi brought the Indian democratic process to a grinding halt in as much as the general election to the Lok Sabha and assemblies in some States had to be postponed. Such was the impact and after effect of the killing of Rajiv Gandhi. 5. The victims were not in a position to protect themselves from the human bomb as the ter- rorists intelligently and ingeniously used Dhanu as a human bomb. 6. For killing Rajiv Gandhi and others, some of the accused infiltrated into India, clandestinely and with the full support and participation of other accused who are local Tamils, this hei- nous crime was committed by the LTTE militants. 7. Giving deterrent punishment alone can deter other potential offenders and in future dis- suade our people from associating with any terrorist organisation to do such diabolical and heinous crimes. In the Supreme Court, nineteen of the twenty-six were found to be innocent of the offence of murder and all of them of any TADA offence. Of the seven that were found guilty of the murder charge, four including a woman Nalini, were sentenced to death. Of the three judges, who wrote separate opinions, Thomas, J., felt that Nalini did not deserve the maximum penalty. The reasons that weighed with him were that she was an elderly and educated woman; she was led into the conspiracy by playing on her feminine sentiments; she played no dominating role; she was persistently brainwashed by A-3 (Murugan) who became her husband and then the father of her child; she was made to believe in the virtue of offering her help to the task undertaken by the conspirators. Another consideration was that she was the mother of a little female child who had to be saved from orphanhood.5° However, the other two judges, Wadhwa, J. and Quadri, J. were of the view that Nalini did not deserve any leniency and the final order was that she too be sentenced to death.>! While Thomas J. dwelt on the mitigating circumstances for Nalini neither he nor the other judges considered those that would be relevant for the other accused being awarded the death sentence. Adopting the pattern followed by the trial court, they only recounted the aggravating circumstances emanating from the crime itself. The upshot of the discussion on the application of the rarest of rare test is that there is no consistent or reliable pattern under which judges will exercise their discretion. The gnawing uneasiness that the same case if heard by a different set of judges may have resulted in a different punishment will always rankle in the minds of those successful death row convicts facing the noose. One sure safeguard is the strict adherence to the pre-sentence hearing requirement. An examination of the track record of the judiciary in this area is not very encouraging. Il. Non-adherence to the Pre-sentencing Hearing Requirements a. The Law A less noticed area of the death penalty discourse has been the unwitting failure of the courts in general, and the trial courts in particular, to ensure compliance with the mandatory procedural requirement of a pre-sentence hearing as spelt out under s.235(2) read with s.354 (3) Cr.PC. The object of the provision was obviously to en- able the court to have information relevant to arriving at a decision on the choice of the appropriate sentence. In its 48th report the Law Commission acknowledged that one deficiency in the system was that there was a lack of comprehensive information as to characteristics and background of the offender. This obscured even more than before the aims of sentencing. Thus it became imperative that “the taking of evidence as to the cir- cumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to cooperate in the process”.52 The rationale of s.235 (2), as explained by the Supreme Court in Santa Singh v. State of Punjab,°3 was to pro- vide a separate stage when the court could hear the accused in regard to the extenuating or aggravating factors and then pass a proper sentence. The nature of the hearing envisaged was explained in Muniappan v. State of Tamil Nadu*4 where the Sessions Judge did not make any serious effort to elicit from the accused what he wanted to say on the question of sen- tence. The judge merely recorded “When the accused was asked on the question of sentence, he did not say anything”. The Supreme Court deplored this approach and explained:55 The obligation to hear the accused on the question of sentence which is imposed by s.235 (2) of the Cr.PC is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The judge must make a genuine effort to elicit from the accused all information, which will eventually bear on the question of sentence... questions which the judge can put to the accused under s.235(2) and the answers which the accused makes to those ques- tions are beyond the narrow constraints of the Evidence Act. The court, while on the question of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order then those which come to play on the question of conviction. The inviolability and non-dispensability of the hearing at the pre-sentencing stage was firmly reiterated in Allaudin Mian v. State of Bihar5®. The court pointed out that this requirement was intended to satisfy the rule of natural justice. The court emphasised that this was mandatory and should not be treated as a mere formality. Tt added:57 “We think as a general rule the trial court should, after recording the conviction, adjourn the matter to a future date and call upon the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender...” This position was reaffirmed in Malkiat Singh v. State of Punjab.*8 In that case when the accused were ques- tioned under s. 235(2) Cr. PC. “they declined to lead evidence.”°? However, that did not disentitle them to an opportunity to adduce evidence to show mitigating circumstances. b. The Practice Despite the above decisions, in Jai Kumar v. State of M.P. the trial court did not adjourn the case for hearing the accused on the question of sentence and pronounced the sentence on the same day. Further, the trial court recorded that “Learned counsel of both the parties were heard on the question of sentence. Both the parties do not want to give any documentary oral verbal evidence with regard to the above.” The Supreme Court held that where a judge invites the lawyers to address it on the question of sentence and lawyers do not seek an adjournment, the question of a further adjournment would not arise. The court felt that in the facts of the case where the accused had killed a pregnant woman as well as her minor daughter in a brutal manner by chopping of their heads, they could be no mitigating circumstances in order to strike a balance with the aggravating circumstances. The approach of the trial judge in the Rajiv Gandhi assassination case was no different. The judge recorded the proceedings thus: After finding the accused guilty, with the consent of the advocates for the accused and A3 Sriharan Jor hearing the accused on question of sentence under section 235(2) af Code of Criminal Procedure the case is passed over from 11.30 a.m. to 1.30 p.m. The case taken up by 1.30 p.m. Accused were questioned under section 235(2) af Cr.PC on the question of sentence. The judgment of the trial court does indicate that this entire exercise of hearing twenty-six persons on the question of sentence was completed in less than two hours’ time. It is not possible to imagine that there was enough time given to any of them to reflect on what they wanted to say. The Allaudin Mian requirement of a mandatory adjournment of the hearing by at least a day seems not to have been insisted upon. The judgment of the Supreme Court in the case also does not advert to this aspect. The position that emerges on the question of pre-sentence hearing is that despite the court in Bachan Singh accepting the proposition that the State must be required to show through evidence that the accused cannot be reformed or rehabilitated, there is seldom any attempt made in the trial court to have a full-fledged hearing on this aspect. There is no instance of the State having been asked to produce such material either. Lawyers in the criminal system must seriously address this issue and ensure that the mandatory requirement of the Cr.PC is not a dead letter. It does appear that the rigidity that ought to be attached to the procedure under which the death sentence is awarded is being followed more in the breach. The apprehension of the abolitionists in Jagmohan that the absence of a procedure established by law under which life could be extinguished through judicial orders de- serves serious renewed attention. Ill. The Arbitrariness of Laws and Procedures a. Hanging an Innocent Person The danger of an innocent person being hanged has never merely been a theoretical possibility. In the United States, a report issued in 1993 by the subcommittee on Civil and Constitutional Rights, Committee on the Judiciary of the US Congress, entitled ‘Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions’, noted that at least 48 people have been released from prison after serving time on death row since 1973 with significant evidence of their innocence. In 43 of these cases, the defendant was subsequently acquit- ted, pardoned or charges were dropped. Some of these men were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence.®2 The Rajiv Gandhi assassination case serves as a warning to the dangers of sending an innocent person to the gallows. The three judges of the Supreme Court who heard the case, in their separate judgments, concurred in holding that none of the 26 accused could be held guilty of the any of the offences they were charge with under TADA and acquitted all of them of those offences. Only seven of the accused was found guilty of an offence under s. 302 read with 120-B IPC and of these seven, four were sentenced to death. In other words, barring a conviction for some minor offences under the IPC, the Foreigners Act and the Passports Act, nineteen of the accused who had been sentenced to death by the trial court after having been found guilty of offences under TADA as well for murder under s. 302 IPC, were acquitted. They were directed to be set at liberty since they had served more than 8 years in jail when in fact the maximum punishment for those minor offences was just two years. The arbitrariness of the whole exercise serves a grim reminder of the dangers that the criminal justice system is fraught with. What is disturbing is that each of theses innocent persons has had to spend over eight years in jail without any justification or reparation for loss of reputation, for the acute mental agony and com- plete loss of liberty. The silence of the Supreme Court on this crucial aspect is too deafening to be ignored. Another disturbing feature is that the entire trial in the Rajiv Gandhi assassination case was conducted under the special procedure prescribed under the TADA which allows confessions made to a police officer to be ad- missible in evidence. Moreover, TADA does not provide a tier of appeal to the High Court. The provisions of bail are also very strict and in this case, none of the accused was released on bail even for a day. The Supreme Court, however, did not find the use of such confessions by the accused to the police officers as evidence to be illegal or impermissible. Inthe Indira Gandhi assassination case, one of the accused, Balbir Singh, was totally acquitted by the Supreme Court despite being found guilty and sentenced to death by the trial court as well as the High Court. The IPC prescribes death penalty as an altemative punishment to life imprisonment for eleven kinds of of- fences, the recent one being introduced by an amendment in 1993.86 By an amendment in 1988, section 31 A of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was introduced. This provision prescribes a mandatory death sentence for certain offences committed by a previous offender under that Act. A similar provision, section 303 IPC, which prescribed mandatory death sentence for the commission of murder by a life convict was held to be unconstitutional by the Supreme Court on the ground that “so final, so irrevo- cable and so irresuscitable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable”.8’ Based on Mithu, a writ petition challenging section 31 ANDPS Act was filed in the Goa bench of the Bombay High Court. It was rejected as premature since there ‘was no known instance yet of a court having awarded the death penalty under this provision.88 Section 3 (2) (i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is another provision, which prescribes a mandatory death sentence. It states: “If an innocent member of a scheduled caste or scheduled tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence shall be punished with death.”8° The Commission of Sati (Prevention) Act, 1987 provides for the death penalty among the punishments that may be imposed on any person who abets, directly or indirectly, the commission of sati. The National Security Guards Act, 1986 and the Indo-Tibetan Border Police Act, 1992 both prescribe the death sentence as an alterna- tive punishment for defined offences committed by members of the two armed forces. The abortive attempts by Tamil Nadu and Andhra Pradesh to enact special laws to deal with terrorism, both providing for death penalty, are pointers to the popular belief that retribution and deterrence are desired goals of punishment. This also explains the demand by the Home Minister, in which he is stated to have the support of many state governments, that death penalty be prescribed as a punishment for rape.2° The baying for blood as a shrill cry of retribution is not a new phenomenon. It was not too far in the past that the Rajasthan High Court ordered the public hanging of a mother-in-law whom it found guilty of causing a dowry death.°! Two passages from earlier decisions of the Supreme Court, often quoted by later benches, also reflect this trend of popular thinking. In Dhananjoy Chatterjee v. State of West Bengal the court sai In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry jor justice against the criminals. Justice demands that courts should impose punishment be- Jitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment”. Earlier in Mahesh v. Madhya Pradesh, which was a case of multiple murders committed in a brutal manner, the court said:93 It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appel- lants would be to render the justicing system of this country suspect. The common man will lose Jaith in courts. In such cases he understands and appreciates the language of deterrence more than the reformative jargon. Academics are not lacking in expressing similar sentiments. In a hard-hitting article,94 Professor Pande has demanded that the court should be imbued with social sentiment and treat the rarest of rare as a social category. Criticizing the Supreme Court’s judgment in Ravindra Trimbak Chouthmal v. State of Maharashtra?> where the court commuted the death sentence awarded to the husband and father-in-law for killing a young eight month pregnant wife on the ground that dowry deaths have ceased to be of the rarest of rare types and that there were doubts ab out the deterrent effect of the death penalty, Pande argues that this was ignoring the strong and grow- ing opinion that dowry death and violence were the worst form of reprehensible behaviour and that the court’s opinion reflects “a clear preference for a classical utilitarian position that justifies punishment solely on the basis of its benefits to the society”. The failure on the part of law academics®” and even lawyers®® to see death penalty as a human rights issue has further harmed the cause of the abolitionists. However, they should be able to point out that the general decline in law and order, to which state-engineered lawlessness has contributed in no small measure, only demonstrates that the retention of death penalty has had no visible deterrent effect whatsoever.°9 They may also want to refer to the research findings the United Nations, which after a survey, concluded that: This research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment - such proof is unlikely to be following. The evidence as a whole still gives no possible support to the deterrent hypothesis. IV. Death Penalty as a Cruel Punishment a. Indian Position The Bachan Singh court negatived the contention that death by hanging constituted an unreasonable, cruel or unusual punishment. The Court noted that despite the U.S. Supreme Court in Furman v. Georgia!®! holding the penalty to be a cruel and unusual punishment in violation of the 8th and 14th Amendments, the legislatures of no less than 32 states, posthaste revised their penal laws and reinstituted death penalty for murder and certain other crimes. In the subsequent decision in Gregg v. Georgia, !0? it read down the concerns expressed in Furman and held “as a general proposition these concerns are best met by a system that provides for a bifurcated pro- ceeding at which the sentencing authority is appraised of the information relevant to the imposition of sentence and providing with standards to guide its use of the information.” !03 The cruel nature of death sentence by hanging, prescribed by s.354 (5) CrPC, was again examined by the Supreme Court Deena v. Union of India.!™ Justifying it, the court said: “The system of hanging is as pain- less as is possible in the circumstances, it causes no greater pain than any other known method of executing the death sentence and it involves no barbarity, torture or degradation. This conclusion is based reason, sup- ported by expert evidence and the findings of modem medicine.” Later in Pt. Parmanand Katara v. Union of India! the court was only prepared to hold that allowing the body to remain on the noose beyond the point of death violated the dignity of the human body and was unconstitutional. Nevertheless, the question of cruelty attaching the act of hanging itself has not been seriously addressed as was done by the South African Constitutional Court.!07 In Smt. Triveniben v. State of Gujarat!8 a Constitution Bench examined the contention of death row convicts that their sentences should commuted on ground of prolonged delay in the execution of death sentence. It was pointed out that the condemned prisoner undergoes inhuman suffering and mental torture in the long wait to execution. The court held that judicial delay in disposal of the appeal finally would not render the award of death sentence unconstitutional. The court also declined to fix any time limit for disposal even of mercy peti- tions. It however permitted a condemned prisoner to come to the court requesting it to examine the fairness of the death sentence if there was inordinate delay in its execution. In Madhu Mehta v. Union of India! a public interest litigation succeeded in persuading the court to commute death sentence awarded to one Gyasi Ram to life imprisonment. It held the delay of eight years in disposing of his mercy petition had caused him to suffer the “mental agony of living under the shadow of death for long, far too long.” 10 b. South African Position Section 12 (1) (e) of the Constitution of the Republic of South Africa, 1996!!! guarantees that everyone has the right to the freedom and security of the person which includes the right not to be punished in a cruel, in- human or degrading way. The question whether section 277(1) (a) of the South African Criminal Procedure Act, 1977 which prescribed death sentence as a competent sentence for murder came to be considered by the Constitutional Court in The State v. T. Makwanyane.!!2 The court was unanimous in declaring death penalty to bea cruel and inhuman form of punishment and therefore unconstitutional. Given the importance of the issue, each of the eleven judges constituting the court gave separate concurring opinions, bringing to the fore the di- vergent perspectives. The arguments of the abolitionists and retentionists heard elsewhere were addressed here as well. Only this time, the court was unanimous in upholding the view of the abolitionists. The court first considered whether the retention of death penalty satisfied the criterion under section 36 (1)!13 that any limitation on the right under s. 12 (1) must be both reasonable and necessary and must not negate the essential content of the right. Reference was made to the judgment of the Canadian Supreme Court in R v. Oakes!!4 where the need for proportionality between the limitation and the objective of the right was empha- sised thus: There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbi- trary, unfair or based onirrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question. > Third there must be a proportionality between the effect of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. In his judgment Chaskalson, J., pointed out that the as far as the second component was concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative punishment would be relevant to the question whether the death sentence impairs the right as little as possible. He drew starkly the picture of a condemned prisoner in the following words:!16 A prisoner is not stripped naked, bound, gagged and chained to his or her cell. The right of as- sociation with other prisoners, the right to exercise, to write and receive letters and the rights of personality... are of vital importance to prisoners and highly valued by them precisely because they are confined, have only limited contact with the outside world, and are subject to prison dis- cipline. Imprisonment is a severe punishment; but prisoners retain all the rights to which every person is entitled under Chapter Three subject only to limitations imposed by the prison regime that are justifiable under section 33. Of these, none are more important than the section 11(2) right not to be subjected to “torture of any kind... nor to cruel, inhuman or degrading treat- ment or punishment”. There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the present case. The contrast with the approach in Bachan Singh, where our court looked to the abolitionists to provide all the facts and figures, is telling in the following passage of the judgment of Chaskalson, J. where he repelled the contention that death penalty had a deterrent value: We would be deluding ourselves if we were to believe that the execution of the few persons sen- tenced to death during this period, and of the comparatively fe w other people from now onwards will provide the solution to the unacceptably high rate of crime. There will always be unstable, desperate, and pathological people for whom the risk of arrest and imprisonment provides no deterrent, but there is nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of such people, or that there will be no more of them if imprison- ment is the only sanction. No information was placed before us by the Attorney General in regard to the rising crime rate other than bare statistics, and they alone prove nothing, other than that we are living in a violent society in which most crime goes unpunished - something that we all IV. Non-violence and Peace Kent E.Gipson, an attorney representing death row inmates in their post-conviction appeals in Missouri, U.S.A. points out that: “The death penalty in America is a ‘cruel lottery’, because at each stage of the process from the prosecution’s decision to seek the death penalty to the carrying out of the sentence, a defendant’s chance of being given the death penalty depend to an astonishing degree on arbitrary and capricious circumstances rather than on the defendant’s criminal and moral responsibility. This system, permeated with unfairness from beginning to end, is so flawed as to be unjustifiable.”!27 These observations might as well apply to our country beset as it is with its endemic problems of an overbur- dened judicial system, an inadequate network of legal aid and assistance and poor prison conditions. Early on the Supreme Court had, in a series of far-reaching orders in public interest litigation cases, highlighted the harshness of both the criminal justice and penitentiary systems.128 Prisoners in our jails die a thousand deaths before they reach the gallows. There is a general misconception that incarceration for long terms is a less severe form of punishment when compared to the death penalty.!29 The system of legal aid developed thus far has not held out much promise for the poor, who constitute the larg- est percentage of the litigants within the criminal justice system. The Legal Services Authorities Act, 1987 does entitle a person in custody to avail of legal aid. However, this legislation was enforced by the government only in November, 1995 and its effectiveness remains to be seen.!3° The Cr.PC!3! provides that a sessions judge may request a lawyer to act for an unrepresented accused. The working of this system has been unsatisfactory since the litigant does not have the choice of a lawyer. 132 Even while we need to grapple with some of these systemic deficiencies, on a different plane, rather than confine the debate over the death penalty to the acknowledged domains of the abolitionists and retentionists, it might be necessary to introspect and resurrect the values of non-violence and respect for human dignity that forms the core of our constitutional values. We may usefully learn from the search for indigenous values that has deeply influenced the approach of the South African Constitutional Court to the question of retaining death penalty. Drawing on the concept of ‘ubuntu’ Madala .J, points out:133 “The Constitution in its post-amble declares: «..... there is a need for understanding but not ven- geance, and for reparation but not for retaliation, a need for unbuntu but not victimisation’. The concept ‘unbuntu’ appears for the first time in the post-amble, but it is a concept that permeates the Constitution generally and more particularly Chapter Three, which embodies the entrenched JSundamental human rights. The concept carries in it the ideas of humaneness, social justice and JSairness.”” He then queries:!34 As observed before, the death penalty rejects the possibility of rehabilitation of the convicted persons, condemning them as “no good”, once and for all, and drafting them to the death row and the gallows. One must then ask whether such rejection of rehabilitation as a possibility ac- cords with the concept of ubuntu. He then concluded that “the death penalty does not belong to the society envisaged in the constitution, is clearly in conflict with the constitution generally and runs counter to the concept of ‘ubuntu’”.135 Yet another judge, Kentridge, J., quoted Churchill’s address to the House of Commons in 1910, to drive home the point: The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the comicted criminal, against the State - a constant heart- searching by all charged with the duty of punishment - a desire and eagerness to rehabilitate in the world of coinage of punishment: tireless efforts towards discovery of curative and regenera- tive processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it. 36 Albie Sachs, ajudge of the South African Constitutional Court as well as amember of its Truth and Reconciliation Commission (TRC), spoke in India in December, 1998 about the philosophy of the TRC. Emphasising the need to move from the microscopic truths that courts and the law determine to a dialogic truth, he said: Court records... are notoriously arid as sources of information. Outside the microscopic events under enquiry, you learn little. The social processes and cultural and institutional systems re- sponsible for the violations remain uninvestigated. The answer to this puzzle must lie in the dif- Jering objectives of the respective enquiries. Courts are concerned with accountability in a nar- row individualised sense. Due process of law relates not so much to truth, as to proof. Before you send someone to jail there has to be proof of the responsibility in the microscopic sense. When the penalties and consequences are grave and personalised you need this constrained mode of proceeding. The nation wishing to understand and deal with its past, however, is asking much larger questions: how could it happen, what was it like for all concerned, how can you spot the signs and how can it be prevented from occurring again? If you are dealing with large episodes, the main concern is not punishment or due compensation after due process of lav, but to have an understanding and acknowledgment by society of what happened so that the healing process can really start. Dialogue is the foundation of repair. The dignity that goes with dialogue is the basis for achieving common citizenship. It is the equality of voice that marks a decisive start, the beginnings of a sense of shared morality and responsibility.137 Can we measure up to the challenge posed? Are we prepared to ask the right questions and seek the kind of information we need? Surprisingly the general consensus on the reasons for the spiralling crime rate has not prompted a debate over its real causes. Law persons must show the lead in reviving the platform for an in- formed debate on the retention of death penalty. Given the fact that there is very little information made avail- able on how many people are being sentenced to death at any given point in time, how many await decisions on their mercy petitions, how many wait the hangman’s noose to be tightened around their necks and where, there is much that needs to be done to facilitate research and analysis. Prison doors need to be knocked at and prisoners engaged in a dialogue. This task needs to be undertaken on a priority basis before mounting the next challenge to the constitutionality and justification for retaining the death penalty. Endnotes 135th Report of the Law Commission of India, p.354. 21973) 1 SCC 20. 333 LEd 2d 346 4 Supranote 2 at 28. 5 Id. at 35. 6 1980 (2) SCC 684. 7 The Joint Committee of Parliament in its Report stated the object and reason of making the change, as follows: A sentence of death is the extreme penalty of law and it is but fair that when a court awards that sentence in a case where the alternative sentence of life imprisonment is also available, it should give special reasons in support of the sentence. 8 1978 (2) SCR 621. 9 (1979) 3 SCC 646. 10 Article 6 (2) ICCPR: In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. The main objective of the provision was spelt out in the Resolution 32/61 of December 8, 1977 of the General Assembly of the United Nations which said: “The main objective to be pursued in the field of capital punishment is of progressively restricting the number of offences for which the death penalty may be imposed with a view to the desirability of abolishing this punishment.” 1 The dissenting opinion of Bhagwati. J, (as he then was) is reported in Bachan Singh v. State of Punjab (1982) 3 SCC 24. 12 Dr Y.S.Chitale, Senior Advocate 13 [dat 751. 14 (1983) 3 SCC 470. 15 Jd. at 749 16 hid. 17 (1992) 1 SCC 96. The petitioner’s husband was convicted for the murder of his father and stepbrother. The petition was filed after his mercy petitions had been rejected first by the President of India and then by the Governor of Jammu and Kashmir. 18 Id. at 99. 19 Tid. 20 A notable exception is the decision in Anshad v. State of Karnataka (1994) 4 SCC 381 where the Supreme Court commuted the death sentence awarded to three persons by the High Court on a reversal of acquittal. The Supreme Court held that the reasons given by the High Court without balancing the aggravating and mitigating circumstances were not ‘special reasons’ contemplated by law. 21 The cases that follow are only illustrative. 22 (1981) 3 SCC 324. 23 Id. at 325. A subsequent petition questioning the rejection of their mercy petition by the President was also dismissed: Kuljit Singh v. Lt.Governor of Delhi (1982) 1 SCC 417. the stay of the executions. 71 Article 72: Power of President to grant pardons, etc., and to suspend, remit or commuie sentences in certain cases.-(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence- (a)... ).... (c) In all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the governor of a State under any law for the time being in force. 72 Article 161: Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. 73 (1981) 1 SCC 107 74 (1989) 1 SCC 204 75 Id. at 209 76 Id. at 217 77 Id. at 214 78“The President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given it by this court”. Supra note 74 at 214 79 Td at 217 80 (1998) 4 SCC 75. See also Harbans Singh v. State of U.P. supra note 30 81 (1996) 6 SCC 241 82 See Usha Ramanathan, “The Death Penalty and Some Issues” Frontline 123 (June 4, 1999) 83 For definition of a terrorist act see supra note 47 84 The challenge to the constitutional validity of TADA failed in the Supreme Court: Kartar Singh x: Union of India (1994) 3 SCC 569 85 See $.20 (6) TADA 86 §_364 A (kidnapping for ransom) was introduced with effect from May 22, 1993 by the Criminal Law (Amendment) Act, 1993. The other eight offences are waging war against the government of India (s.121), abetting mutiny actually committed (s. 132), giving or fabricating false evidence upon which an innocent person suffers death (s.194), murder (s.302), murder by life convict (s.303 — though struck down by the Supreme Court in Mithu (1983) 2 SCC 277, it still remains in the statute book), abetment of suicide of a minor or insane, or intoxicated person (s.305), attempt to murder by a person under a sentence of imprisonment for life ifhurt is caused (s.307), dacoity accompanied with murder (s.396) and criminal conspiracy to commit any of the above offences (s.120-B). 87 Mithu v. State of Punjab supra note 86 at 298. 88 Unreported judgment dated March 9, 1998 of the High Court of Bombay at Goa in W.P.No.80/98 —Jos. Peter D'Souza v. Union of India 89 It appears that the challenge to the constitutional validity of this provision failed: See AIR 1994 MP 143 99 For a criticism of this move see Usha Ramanathan, “Only a Safety Valve” The Hindu New Delhi 25 (November 22, 1998) 91 Fortunately in Attorney General of India v. Lichhama Devi, ATR 1986 SC 467, the Supreme Court cried halt stating “a barbaric crime does not have to be visited with a barbaric penalty such as public hanging”. When her appeal was finally taken up, the death sentence was commuted by the Supreme Court which found that” .... the decision to award death sentence is more out of anger than on reasons. The judicial discretion should not be allowed to be swayed by emotions and indignation.” : Lichhamadevi v: State of Rajasthan (1988) 4 SCC 456 at 462. 92 (1994) 2 SCC 220 at 239. The case involved the rape and murder of a teenage girl in Calcutta. This passage was cited in the confirming judgment in Jai Kumar v. State of M.P. (supra n. 30) 93 (1987) 3 SCC 80 at 82. Followed in Sri Mahendra Nath Das v. State of Assam 1999 (3) SCALE 700. °4 BB. Pande, “Murder Most Foul, Though Not Rarest of Rare” (1996) 5 SCC (Journal) 1 95 (1996) 4 SCC 148 96 Supra note 94 at 5 97 An extreme example in the recent past is the reported statement of the Dean of the Law Faculty , Delhi University who when asked why his department was not teaching a human rights course was reported to have said “I don’t think human rights have much to do with law. It is more of a philosophical subject which deals with human values and responses, right and wrong”: See Gautam Roy, ‘Rights Course Stuck in Quagmire’, The Hindustan Times, New Delhi July 15, 1999, p.1. 98 The bar awaits the likes of the lamented R.K.Garg, who valiantly led the abolitionist onslaught through Jagmohan, Bachan Singh and Deena and kept the fight going in various other cases, many of which are listed in this piece. ° For the orders made by the Supreme Court in connection with the mass cremation of thousands of persons by the Punjab Police after labelling them as unidentified, see Paramjit Kaur v. State of Punjab (1996) 7 SCC 20; 1996 (6) SCALE SP-21; 1996(8) SCALE SP-6. The Report of the NHRC for the period Between April 1, 1994 and March 31, 1995 records that among the cases admitted for disposal by it were 111 of deaths in police custody, 51 in judicial custody, 9 other custodial deaths, 55 cases of disappearances, 114 cases of illegal detention, 497 other “police excesses”. 100 United Nations: The Question of the Death Penalty and the New Contributions of Criminal Science to the Matter at 110 (1988) 101 Sypra note 1 102 49 L Ed 859 103 The U.S. is one of the countries which continues to retain death penalty. 24 States in the U.S. permit children below 18 to be sentenced to death. Between 1985 and 1998 11 persons who were 17 at the time of the commission of the crime were executed and one of them was 38 years of age at the stage of execution. Currently nearly hundred persons who were children at the commission of the offence are on death row. 104 (1983) 4 SCC 645 105 Td. at 688. The question was raised again in Shashi Nayar v. Union of India supra note 17 but to no avail 106 (1995) 3 SCC 248 107 In The State v. T. Makwany ane, (infra n.114) that court referred to description of the execution of the death penalty by Professor Chris Barnard as follows: The man’s spinal cord will rupture at the point where it enters the skull, electrochemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor...” (Rand Daily Mail (June 12, 1978). 108 (1989) 1 SCC 678. The earlier decisions in ZV. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68 and Javed Ahmed Pawala v. State of Maharashtra (1985) 1 SCC 275 which had declared that a delay of over two years in carrying out the execution would result in automatic commutation, were overruled. 109 (1989) 4 SCC 62 10 Jd at 70 111 Th the Interim Constitution of 1993, this was S.11 (2) 112 The references hereafter are to the printed copy of the judgment dated June 6, 1995. 113 g§_ 33 (1) of the Interim Constitution. 114 (1986) 19 CRR 308 115 R v, Big M Drug Mart Ltd. at p. 352 116 Sypra note 112 at 84 U7 Tq. at 72 (para 121). In Shashi Nayar v. Union of India in 1991 after taking judicial notice of the rising crime rate, and casting the onus on the petitioners to produce materials to take a view contrary to Bachan Singh, our Supreme Court simply declared “The death penalty has a deterrent effect and it does serve a social purpose” (supra n.19 at 99) 18 sypra note 112 at 51-52 119 Jd at 125 para 178 120 (1980) 381 Mass 648 at 678-9, 681 and 683. A similar account was furnished by Gubbay CJ in Catholic Commission for Justice and Peace, Zimbabwe ¥: Attorney General 1993 (4) SA 239 at 268: “From the moment, he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is ‘the living dead’.... He is kept only with other death sentence prisoners - with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying specture of being hanged by the neck and the apprehension of being made to suffer a painful... death is .... never far from mind”. 121 sypranote 12 at 210 122 This is an extract from the transcript of the Attorney General’s address to the Human Rights Committee. This is perhaps the first time that any statistics concerning the use of death penalty in India has been shared with anyone. That such information is not readily available to anyone within the country explains the difficulty in making any meaningful analysis of how often death sentence is used and in what instances. When Kehar Singh v. Union of India (supra n.76) was being argued, the Attorney General of the day informed the Supreme Court that “a mere 29 persons were hanged when 85,000 murders were committed during the period 1974 to 1978” (supra n.76 at 218). 123 Jbid. This sort of a claim made before an international body must require the abolitionists in the