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Death Penalty Must Be Applied Consistently Rather Than Emotionally

Judgments of the Supreme Court have pointed out that there is an arbitrary application of the death penalty. This is a gross violation of human rights and is also counterproductive. Harsh punishments will not serve as a deterrent, if the punishment itself is applied arbitrarily.

On a pleasant evening in Pune, ten-year-old Diya (name changed) was playing on the street with her brother. There was laughter and joy in the air. But the little girl suddenly went missing while they were playing. Her brother searched for her frantically but could not find her. So he informed his mother, who went to the police in distress.

Suddenly, a young man walked into the police station and told them that his father had killed a little girl and kept her body under his bed. The police immediately head to his bedroom and make a gruesome discovery. There is blood on the bedsheet and the body of a little girl under the bed.

Upon post-mortem examination of Diya’s body, it was found that her genitals were badly damaged. The medical examiner concluded that it was the result of the forced penetration of an adult male. She was likely in a tremendous amount of pain and fear during the whole ordeal. She was alone and scared with a strange man. The only respite she got was death when her rapist tightened a rope around her neck and drew the last breath out of her. Her rapist was arrested and stood trial before the Sessions Court in Pune.

One might think, “Surely this offender got the death sentence.” The crime sounds very similar to the infamous rape and murder of Nirbhaya in Delhi – an innocent, hapless and defenceless victim; a gruesome crime; a depraved offender; and an inconsolable family. The Sessions Court didn’t think so. It sentenced Diya’s rapist to life imprisonment. On appeal, the High Court enhanced the sentence to death. But then, more importantly, this was reduced back to life imprisonment when it reached the Supreme Court. But how was Diya’s case different from or less gruesome than Nirbhaya’s?

On 20 March, Nirbhaya’s adult rapists were put to death. This finally brought an end to a crime that shocked the nation for a little over seven years. However, the case should force us to ask some very pertinent and difficult questions about India’s criminal justice system – most notably, the imposition of the death penalty. Is the death penalty being applied according to the law or does it depend on more arbitrary considerations?

This piece is not intended to argue for or against the death penalty. Instead, its objective is to reflect on how this punishment is being meted out in our country. While exploring whether or not the death penalty should be retained after independence, India’s freedom fighters identified a prescient reason for its abolition. It was not just that this is the land of the Mahatma and ahimsa; there was also a strong possibility of error and arbitrariness in its imposition.

A seminal case in death penalty jurisprudence is Bachan Singh v. State of Punjab (1980). In this case, the Supreme Court laid down the ‘rarest of the rare’ guidelines, which are to be followed when applying the death penalty. It stated that the Court must not be inclined to take the life of a convict. This may only be done when the alternative option of life imprisonment is “unquestionably foreclosed”.

In addition, the Court must draw up a balance sheet of the aggravating and mitigating circumstances of the case (‘aggravating circumstances’ include the nature of the crime; ‘mitigating circumstances’ include the socio-economic background of the Accused). In this manner, Bachan Singh attempted to bring about some uniformity in the application of the death penalty by reducing judicial discretion.

Shockingly, in the opinion of many Supreme Court Justices and the Law Commission, this attempt at uniformity and consistency has failed. In Sangeet v. State of Haryana (2013), the Supreme Court lamented that the balance-sheet approach had brought about neither uniformity nor consistency. More astonishingly, the Court admitted that it had “not taken the sentencing process as seriously as it should” – and as a consequence, capital sentencing had become judge-centric.

Courts place a great degree of emphasis on the nature of the crime (the aggravating circumstances), while often examining the Accused and his or her background (mitigating circumstances) only in a cursory manner. Even Defense counsels often do not properly present the mitigating circumstances to the Court. The Supreme Court in Shankar Khade v. State of Maharashtra (2013) expressed the concern that it had become a matter of chance as to who would be hanged and who would not.

The inconsistency in applying the death penalty should concern us. Laws must be clear and unambiguous, which also means that they should be applied consistently with consistent outcomes. Otherwise, the rule of law cannot be upheld. Worse, inconsistent sentencing hurts the legitimacy of the legal system in the eyes of the people. Inconsistent sentencing also compromises the purpose of punishment. Harsh punishments will not serve as a deterrent, if the punishment itself does not depend on certain objective criteria – or if it is inconsistently applied.

Enshrined in our Constitution is Article 21, which holds that the State shall not deprive any person of his life or personal liberty, save by a procedure established by law. The Supreme Court has interpreted the phrase ‘procedure established by law’ to mean a just and fair procedure based on the law – not an arbitrary procedure. The State cannot arbitrarily take away a person’s life or liberty.

Despite our Constitution stating this norm – and judgments of the Supreme Court having pointed out that there is an arbitrary application of the death penalty – we have done little to get back on to the right path. This is a gross violation of human rights and flies in the face of the ideals that Indians ought to guard zealously.

Diya’s case is tragic but differs from Nirbhaya’s in one crucial way. You had likely never heard of Diya’s case until you read this piece. There was no public outrage – no torches and pitchforks. No news anchors stoked public anger over the heinous crime. But the country did hear about Nirbhaya and her rapists instantly became the most hated men in India. Even before the police made any arrests, there were protests and demands that her rapists be hanged.

In an interview in 2014, even Pawan Kumar (the executioner who hanged the men) said that he was waiting to hang Nirbhaya’s rapists. He planned to tie the noose loose around their necks to ensure that they take at least ten minutes to suffer and die. This is as opposed to the five minutes that he says it should ordinarily take for an execution.

Justice Sinha in Santosh Bariyar v. State of Maharashtra (2010) emphasized that the ‘rarest of the rare’ guidelines must be compliant with Articles 21 and 14 of the Constitution and that the socio-economic background of the offender must be considered before sentencing. This does not happen in many cases.

Before the hanging of Nirbhaya’s rapists becomes a distant memory, we should explore their backgrounds. These men were admittedly from poor socio-economic backgrounds. Some had not even been to a school and the others had not completed their education. Some of the villages they were from do not even have a functioning school. Could education have made a difference in the conduct of these perpetrators? Could access to opportunities have steered them in a different direction?

Asking these questions is difficult because of the question that would logically follow: Whose responsibility is it to provide these schools or opportunities to the people of India?

While some cheered when the hangman pulled the lever, it behoves us to introspect on how we have failed as a society – and how our government has failed to ensure our fellow citizens aren’t driven to the gallows. This is not to say that the perpetrators did not have free will or that they were ‘compelled’ to commit such an unspeakable crime. However, their actions cannot be treated in isolation – or removed from their personal and social backgrounds.

Many scholars have opined that the death sentence often acts as a placeholder for prejudice and bias: One is more likely to be sentenced to death if he or she is viewed as an outsider to the community. In Nirbhaya’s case, it cannot be denied that the Government and the courts were under enormous pressure from the public to show no mercy. Some could argue that this was easy to do: None of the rapists had any clout, nor did they come from wealth.

None of this is to argue that Nirbhaya’s rapists did not deserve the death penalty. After they were hanged, Nirbhaya’s mother said that she hugged a photograph of her daughter with the assurance that she had got justice. There is no one more qualified to state whether or not justice was done. No one should have to experience what Nirbhaya or her family went through and the law should come down heavily on such offenders.

However, Indians must – as a people – eradicate apathy towards the duties of the Government. There is a blissful ignorance of the rule of law: Extra-judicial killings are often condoned and sometimes celebrated (as in the Hyderabad gang rape).

There are hundreds of cases pending before our courts like Diya’s, which are just as gruesome and depraved as Nirbhaya’s. But the perpetrators will not see the gallows and no media spotlight will be shone. Is justice not done in these cases? We may not be able to answer this question. We can be sure, however, that justice and arbitrariness do not go hand in hand. There must be a consistent and principled application of the law, independent from societal pressures.

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Abhirup Bangara is a practising advocate in the High Court of Karnataka and a graduate of International Legal Studies from New York University. He has previously worked with Justice S. Abdul Nazeer, Judge of the Supreme Court of India.