A Resounding Dissent Against the Death Penalty

It has been unequivocally exposed by two Supreme Court rulings, that the death penalty in India has the rationality of the roulette table—it is a lethal lottery, and the only principle underpinning its continuation is bloodlust, which does not have any validity in law. Time and again, courts, even the Supreme Court has justified the imposition of the death penalty to snuff out the lives of criminals who are a menace to the society, and these now sound as clichés repeated ad nauseam. Only last week, a trial court in Delhi handed death penalty to a man convicted of participating in the 1984 anti-Sikh riots, and this decision was celebrated in many political circles.

In such a scenario, it takes exemplary courage for a Supreme Court judge to hold that: “[T]he constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being “arbitrarily and freakishly imposed” and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. …. It is also a matter of anguishing concern as to how public discourse on crimes have an impact on the trial, conviction and sentence in a case. The Court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the Court when it deals with the collective conscience of the people or public opinion. After all, the society’s perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper.”

But Justice Kurian Joseph, in a minority judgement delivered on November 28, in the case of Channu Lal Verma  has displayed this courage. The two other judges on the bench agreed with him in commuting Verma’s death penalty to life imprisonment because of the numerous errors and infirmities riddling the high court and trial court rulings, but differed with him on the issue of the constitutionality of imposing capital punishment.

Undeterred, Justice Joseph, relying extensively on the Law Commmission of India’s 262nd report (2015), which emphasised that the march of jurisprudence in the country, and global trends called for abolition of the irreversible judicial dictum of death and nothing else, issued a ruling which could be compared to the US Supreme Court’s landmark judgement in Furman v Georgia  in which the court termed the death penalty as a “cruel machinery of death” riddled with judicial caprice and serving no penological purposes at all.

Lethal, Irreversible Errors

Justice Joseph’s emphatic opinion should draw one’s notice to the errors the Supreme Court itself has admitted.

On November 20, 2012, a bench headed by Justice Madan B. Lokur admitted in Sangeet  & Anr v State of Haryana  that many innocents have been executed because the court has wrongly relied on the flawed precedent of Ravji v State of Rajasthan (1995) which violated the constitution bench ruling in Bachan Singh that mandated that the focus should be on the nature and circumstances of the criminal and not the crime.

The genesis of Justice Lokur’s ruling lies in the 2009 Supreme Court decision in Santosh Bariyar, in which a bench headed by Justice S.B. Sinha admitted that in seven cases, death sentences had been erroneously given. A similar error was immediately noticed in the sentencing of six more convicts, taking the total number to 13.

In the 2013 Supreme Court decision in Shankar Kisanrao Khade, the judges admitted that the execution of death penalty in the case of Dhananjay Chatterjee (2004) was erroneous, but this came nine years too late since Chatterjee had already been sent to the gallows.

In a perceptive piece, legal scholar Usha Ramanathan has pointed out that a comparison of the decisions of three judges of the Supreme Court relating to the death penalty in the first decade of this century shows a highly unsettling inconsistency. “Justice Pasayat dealt with 29 per cent of the reported cases on death penalty, confirmed the death sentence in 16 of the 22 cases that he heard and decided, enhanced the sentence from life imprisonment to death in two cases, and reversed acquittal and imposed the sentence of death in two cases. That these enhanced sentences have no higher court to which the convicted person may appeal is a chilling facet of these judgments. Overlapping with this period, Justice S B Sinha heard 23 per cent of the death penalty cases, and upheld the sentence in none of the 17 cases he decided. Justice K.G. Balakrishnan heard 12 per cent of the cases, and upheld the sentence in six of 13 cases. In three cases, Justice Sinha held that the accused be acquitted,” Ramanathan wrote.

She bemoaned the fact that the angst about the death penalty which has gripped the judiciary since the 1980s had not touched Parliament, which was revelling in imposing capital punishment even for non-homicidal offences.

Perhaps Justice Joseph’s dissent will wake up both Parliament and the judiciary from their slumber.

Saurav is an independent journalist based out of Delhi, and specialises in reporting on legal, human rights and gender issues. He earlier used to teach media law and jurisprudence in Bombay and Pune. He tweets @SauravDatta29.