Context

On March 5, a three-judge bench of the Supreme Court delivered verdicts in three different death penalty cases. In two of those the court entirely exonerated the suspects, while in the third it not only found the accused guilty of murder, but also deserving of capital punishment.Retention of the death penalty utterly undermines India’s moral foundations.

The arbitrariness of the Death Penalty

• Collectively, the cases demonstrate how arbitrary the death penalty is, how its application is mired by a belief in conflicting values, and how the fundamental requirement of precision in criminal law has been replaced by a rhetorical cry for avenging crime by invoking the “collective conscience” of society.

Lack of uniformity in dealing  with the cases

• In the first of the cases, Digamber Vaishnav v. State of Chhattisgarh, two persons were convicted of murdering five women and were sentenced to death in 2014.

• But the chief testimony, was that of a nine-year-old child.This, the court therefore ruled, was effectively a conviction premised on surmise and conjecture.

• Ankush Maruti Shinde v. State of Maharashtra, the second of the cases,a trial court found six persons guilty .However, in 2009, the Supreme Court not only dismissed the appeals filed by those sentenced to death, but also, astonishingly, enhanced the penalties of the three persons whose sentences had been commuted by ordering that they too be punished with death.

Court’s Justification for changing ruling

• During this time, as the court records, “The accused remained under constant stress and in the perpetual fear of death.

Failure of Rarest Of the rare doctrine

• After all, if these decisions had shown us anything, it was that the judicial process is far from inerrant.

• But the collective conscience of society, represented through the court’s capital punishment jurisprudence, it appears, is still alive and kicking.

• For in the third of the cases, in Khushwinder Singh v. State of Punjab, it not only affirmed the conviction of the accused, on charges of murdering six members of a family, but also gave its imprimatur to the award of the death penalty. The murders, the judgment holds, were “diabolical and dastardly” and the case fell into the “rarest of rare” categories where “there is no alternative punishment suitable, except the death sentence”.

• The rarest of rare doctrine has its origins in Bachan Singh v. State of Punjab (1980).

• There, the court declared Section 302 of the Indian Penal Code, which prescribes the death penalty for murder, as constitutionally valid, but bounded its limits by holding that the punishment can only be prescribed in the rarest of rare cases.

• Since then, the court has repeatedly cautioned that capital punishment ought to only be decreed when the state can clearly establish that a convict is incapable of being reformed and rehabilitated.

• But, in Khushwinder Singh, the court does not place on record any such piece of evidence that the state was called on to produce.

• Indeed, the court does not so much as attempt to answer whether the accused was, in fact, capable of reformation or not. Instead, it merely endorses the death sentence by holding that there simply were no mitigating circumstances warranting an alternative penalty.

Victims of such system

• That capital punishment serves no legitimate penological purpose is by now abundantly clear.

• There’s almost no empirical evidence available showing that the death penalty actually deters crime.

• If anything, independent studies have repeatedly shown the converse to be true.

• In the U.S., for instance, States that employ capital punishment have had drastically higher rates of homicide in comparison with those States where the death penalty is no longer engaged.

• In India, evidence also points to a disproportionate application of the sentence, with the most economically and socially marginalised amongst us suffering the most.

• The Death Penalty India Report (DPIR), released on May 6, 2016, by Project 39A of the National Law University, Delhi, for example, shows that 74% of prisoners on death row, at the time of the study, were economically vulnerable, and 63% were either the primary or sole earners in their families.

• More than 60% of those sentenced to death had not completed their secondary school education, and 23% had never attended school, a factor which, as the report states, “points to the alienation that they would experience from the legal process, in terms of the extent to which they are able to understand the case against them and engage with the criminal justice system.”

Need For Reforms

• In the face of this invidiously prejudiced application, the retention of capital punishment utterly undermines the country’s moral foundations.

• The Supreme Court may well have expanded the rights of death row prisoners:delays by the President in disposing of mercy petitions now constitute a valid ground for commutation; review petitions filed by death row convicts now have to be mandatorily heard in open court.

• But as the judgments delivered on March 5 reveal, the very preservation of the death penalty creates iniquitous results.

• Cases such as Ankush Maruti Shinde, where the accused, as the judgment records, were very poor labourers, “nomadic tribes coming from the lower strata of the society,” ought to make it evident that the death penalty is an abhorrent and unjust device.

• The Constitution promises to every person equality before the law. But capital punishment renders this pledge hollow.

• t legalises a form of violence, and it closes down, as Judith Butler wrote, expounding Jacques Derrida, “the distinction between justice and vengeance,” where “justice becomes the moralised form that vengeance assumes.”