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ormal expression” means the recordation of the ruling of the Court on the matter presented before it, so far as the Court expressing it alludes to the fact that the same issue cannot be adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum
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International Environmental Law Research Centre International Environment House Chemin de Balexert 7 1219 Châtelaine Geneva, Switzerland E-mail: info@ielrc.org This paper can be downloaded in PDF format from IELRC’s website at http://www.ielrc.org/content/a9803.pdf
of the two punishments was not based on any legislative policy or standard or constituted an abdication by the legislature of its essential function attracting the vice of excessive delegation. Thirdly, the unguided sentencing discretion in judges rendered it violative of article 14 since two persons found guilty of murder could be treated differently – one sentenced to life the other to death. Fourthly, there was no procedure provided in the Cr.PC for determining which of the two punishments were to be awarded. The absence of a procedure established by law under which life could be extinguished resulted in a violation of article 21. The five judges refused to be persuaded by the decision of the U.S. Supreme Court in Furman v. Georgia^3 declaring death penalty to be in violation of the Eighth Amendment, which forbade cruel and unusual pun- ishments. Expressing doubts about transplanting western experience the court felt that “social conditions are different and so also the general intellectual level.”^4 In coming to the conclusion that capital punishment was neither unreasonable nor opposed to public interest, the court drew support from the 35th Report of the Law Commission and the fact that on four occasions between 1956 and 1962 bills or resolutions tabled in Parliament for abolition of death penalty had been rejected. Negativing the argument of excessive delegation the court opined:^5 “The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion... is liable to be corrected by superior courts.” As regards the procedure, the accused could always ask to lead additional evidence and counsel could address the court on the question of sentence. It was held that deprivation of life was constitutionally permissible as it was imposed after a trial in accordance with procedure established by law.
Three developments subsequent to the judgment in Jagmohan prompted a renewed challenge in Bachan Singh v. State of Punjab^6 to the constitutional validity of the death penalty. The Cr.PC was reenacted in 1973 and section 354 (3) required that the judgment recording conviction for an offence punishable with death shall state special reasons for such sentence.^7 Thus death sentence became the exception and not the rule as far as punish- ment for murder was concerned. Secondly, the decision in Maneka Gandhi v. Union of India^8 , required that every of law of punitive detention both in its procedural and substantial aspects must past test of reasonableness on a collective reading of articles 21, 19 and 14. Based on this interpretation, the Supreme Court had in Rajendra Prasad v. State of U.P.^9 held that the special reasons necessary for imposing the death penalty must relate not to the crime but the criminal. It could be awarded only if the security of the state and society, public order and the interests of the general public compelled that course. When Bachan Singh’s appeal came up for hearing in the Supreme Court before a bench of Sarkaria and Kailasam, JJ., the latter observed that the judgment of the majority in Rajendra Prasad ran counter to the judgment in Jagmohan and hence required reconsideration. The third development was that India had acceded to the ICCPR that came into force on December 16, 1976.^10 By ratifying the treaty, India had committed itself to the progressive abolition of death penalty. In support of the first limb of the challenge, to the validity of s.302 IPC, it was argued for the abolitionists in Bachan Singh that: (a) death penalty was irreversible and could be, given the fallibility of the processes of law, in- flicted upon innocent persons; (b) there was no convincing evidence that the death penalty served any penological purpose
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.^11 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^12 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:
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.^20 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.^21
Kuljeet Singh v. Union of India^22 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”.^23 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”.^24 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:^26 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.
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^27 ; the kidnapping and murder of a male child^28 or the merciless killing of a sister-in-law and her children^29 - 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.^30 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.
Harbans’s SLP also sent from the jail, was dismissed by Sarkaria and Shinghal, JJ., on October 16, 1978. Despite the registry of the court pointing out that Kashmira’s sentence had been commuted, a bench of Sarkaria and A.P.Sen, JJ., dismissed on May 9, 1980 the review petition filed by Harbans. The President rejected his mercy petition on October 6, 1981. He then filed a writ petition under article 32 before the Supreme Court. Faced with the obvious miscarriage of justice, an anguished court opined that Kashmira’s death sentence hav- ing been commuted by it, it would be unjust to confirm the death sentence imposed on Harbans. In a concurring judgment, A.N.Sen, J., exclaimed: “It will be a sheer travesty of justice and the course of justice will be per- verted, if for the very same offence, the petitioner has to.... pay the extreme penalty of death whereas the death sentence imposed on his co-accused for the very same offence is commuted...”.^31 However, since the President had rejected the mercy petition, the court felt “in the interest of comity between the powers of this Court and the powers of the President of India, it will be more in the fitness of things if we were to recommend that the President may be so good as to exercise his power under Article 72... to commute the death sentence imposed upon the petitioner into imprisonment for life.”^32 In Om Prakash v. State of Haryana^33 seven persons were murdered by a person working in the Border Security Force. All the seven victims including men, women and children ere sleeping at the time of the offence and firing was resorted to without any provocation to wreak vengeance over a dispute over a plot of land. The court accepted the argument that the accused was compelled to resort the crime because the authorities had paid no heed to the complaints made by him against the deceased in regard to encroachment on the property. The court took into consideration the fact that the appellant was working as a disciplined member of the armed forces having no criminal antecedents, was 23 years at the time of commission of the offence and that “there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society”.^34 In Shiv Ram v. State of U.P.^35 , death sentence was awarded for the murder of five persons, including a 10-year old boy, in a terribly depraved and brutal manner by dismembering the heads, carrying them in a procession and roasting the bodies in fire. In State of U.P. v. Bhoora,^36 which involved the murder of four persons, death sen- tence was commuted to life imprisonment. In Nirmal Singh v. State of Haryana^37 the murder by the appellant, who was on parole, of five persons of the family of the rape victim whose evidence at the trial had resulted in his conviction, invited the maximum punishment. Going by the individual role of the accused, the appellant’s brother was given the benefit of a commuted sentence.
The decisions where death sentences have been commuted do not appear to be based on any set pattern of sentencing. This deprives the decisions of real precedential value and necessitates formulating arguments for mitigation of sentence not on the basis of past practice but restricted to the facts of a case. In Panchhi v. State of U.P.,^38 four members of the family of the accused became killers of four members of another family consequent upon a long history of quarrels. The accused made 27 attacks with axes and daranti on the deceased. The three surviving accused included a septuagenarian, a youth in his prime age and a mother who had given birth to a child even while undergoing the sentence. The death sentence awarded by the trial court was confirmed by the High Court. The Supreme Court commuted the sentence for all the three stating: “No doubt brutality looms large in the murders in this case particularly of the old and also the tender age child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the ‘rarest of rare cases’.”^39 Apart from mentioning that a thirst for retaliation was a possible motive for the crime, the Court was totally silent on what mitigating factors had weighed with it.^40 In Raja Ram Yadav v. State of Bihar^41 where six murders had been committed in a cold diabolical manner, the court commuted the sentence on the accused to life imprisonment on account of the special fact that the sole eye witness to the crime was a child aged 9 years. This was an instance where the court did not travel outside the record to seek factors that would weigh with it for a decision on the appropriate sentence. An internal
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,^53 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^54 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 Bihar^56. 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. It 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.^58 In that case when the accused were ques- tioned under s. 235(2) Cr. PC. “they declined to lead evidence.”^59 However, that did not disentitle them to an opportunity to adduce evidence to show mitigating circumstances.
Despite the above decisions, in Jai Kumar v. State of M.P.^60 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:^61 After finding the accused guilty, with the consent of the advocates for the accused and A3 Sriharan for hearing the accused on question of sentence under section 235(2) of 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) of 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.
In the above context the denial of an automatic right of appeal to the Supreme Court in a case of confirmation of death sentence by the High Court requires to be examined. There is no automatic right of appeal in the Supreme Court where death sentences awarded by a trial court gets confirmed by the High Court.^65 It is only where there is a reversal acquittal by the trial court and awarding of life sentence or death sentence or a sentence of ten years or more by the High Court that the Cr.PC.^66 and the constitution^67 provide for a automatic right of appeal. While it has been a practice that the Supreme Court will not summarily reject a special Leave Petition where it involves death sentence, a recent instance makes real such a possibility. In that event there would not be really a right of appeal on the question of sentence, which gets confirmed for the first time in the High Court.^68 This may be inconsistent with the ICCPR treaty require- ment to which India is a state party.^69 The recent case of Sheik Meeran, Selvam and Radhakrishnan were sentenced to death is an eye opener in this regard. The three were sentenced to death by the Sessions Court at Tirunelveli, Tamil Nadu on October 5, 1998 after being found guilty of the murder of an under trial in the court hall of the Judicial Magistrate, Nagercoil even while the court was holding its proceedings. Together with four others the three accused inflicted as many as 12 serious cut wounds on the face head and body of the accused. They then dragged the body to the court compound threatening the onlookers. They also threw a country bomb on the side of the sessions court while departing from the scene of the offence. The High Court had no difficulty in holding this to be the rarest of rare case. Although it did not consider the mitigating circumstances, it held that there were none and confirmed the death sentence on April 30, 1999. The Special Leave Petition filed by the three accused was listed on an urgent basis during the summer recess of the Supreme Court since the date of execution had been fixed on July 15,
The power of the executive to grant clemency is vested in both the President^71 and the Governor^72 under our Constitution. In Maru Ram v. Union of India,^73 a Constitution Bench of the court held that the power under article 72 is to be exercised on the advice of the central government and not by President on his own, and that the advice of the government binds the head of the state. This was reiterated in Kehar Singh v. Union of India^74 in which the challenge was to the order of the President declining clemency to one of the accused in the Indira Gandhi assas- sination case on the ground that he could not “go into the merits of the case finally decided by the highest court of the land”^75. The court here explained that “the question as to the area of the President’s power under article 72 falls squarely within the judicial domain and can be examined by the court the way of judicial review.”^76 The court clarified that the order of the President cannot be subjected to judicial review on its merits except
within the strict limitation defined in Maru Ram.^77 The court held that the power of the President was not in any manner circumscribed by the decision of the court on merits of the case and that the President was required to take a decision independent of the judgment of the court.^78 However, the court declined the request of counsel for the petitioner that in order to prevent an arbitrary exercise of power under article 72, the court should draw up a set of guidelines for regulating the exercise. The court said: “it seems to us that there is sufficient indica- tion in the terms of article 72 and the history of the power enshrined in that provision as well existing case law, and specific guidelines need not be spelt out.”^79 In Swaran Singh v. State of U.P.^80 where the Governor of U.P. had granted remission of the life sentence awarded to the Member of State Legislature of Assembly upon being convicted for the offence of murder, the Supreme Court interdicted the order of the Governor. While the court acknowledged that it had no power to touch the order passed by the Governor under article 161, if such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of constitutionalism, the by product order cannot get the approval of law and in such cases the judicial hand must be stretched to it. It found that the order of the Governor in the case “fringes on arbitrariness”. In Gentela Vijayvardhanrao v. State of A.P.^81 the two appellants were dalit boys who set afire a bus for the purpose of robbery. This resulted in the death of 23 passengers and serious burns to a number of other passen- gers. The court considered the barbarity of the crime, depravity in the manner of the execution, the number of victims and greed as the aggravating factors and confirmed the death sentence awarded to both of them. Even while the mercy petitions were pending, human rights groups took a campaigning against the death sentence awarded to the two boys. Attempts were made to bring back the issue to the Supreme Court by way of writ petitions. These did not succeed. The President of India, however, deemed it fit to grant pardon to the two and commuted their sentence to one of life imprisonment. In the absence of the requirement to give any reasons for such decision and further since the order of the President is neither published nor made available, it is im- possible to know what weighed with the President in commuting the sentence. If such decisions were made public, as they ought to be, it would help know the factors in favour of not awarding death sentence and would provide guidance for the future. Otherwise the exercise of the clemency power on an extremely selective basis may give rise to the reasonable apprehension that it is capable of being arbitrarily used. With the President in this jurisdiction acting on the advice of the cabinet, the possibility of political considerations weighing with the decision to exercise clemency cannot be ruled out. The mercy jurisdiction then does not really offer a reliable answer to the charge that the arbitrary application of the rarest of rare test by the judiciary does not really have a corrective mechanism.
That the retentionists continue to dominate public opinion and therefore, legislative wisdom is an unmistak- able fact in the post Bachan Singh phase. A series of legislative measures have either introduced or continued with the death penalty for various offences.^82 There has been an increasing demand from the government and certain women’s groups for extending death penalty for the offence of rape. Deterrence continues to be viewed as the desired objective of punishment in academic and judicial circle as much as it is mistakenly believed that incarceration is a softer option. Overcoming some of these rigid positions has proved to be the biggest hurdle yet for the abolitionists.
The Terrorist and Disruptive Activities (Prevention) Act (TADA) which was first enacted in 1985 and reenacted in 1987 provides for death penalty as an alternative punishment for the commission of a terrorist act.^83 Despite the non-renewal by the Parliament of TADA after 1995 resulting in its lapse,^84 a large number of trials under TADA still await completion. A death sentence recommended in the first instance by the designated court try- ing the case under TADA becomes final when confirmed at the next level by the Supreme Court, there being no appeal against such confirmation of sentence^85.
The failure on the part of law academics^97 and even lawyers^98 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.^99 They may also want to refer to the research findings the United Nations, which after a survey, concluded that:^100 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
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^101 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,^102 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.”^103 The cruel nature of death sentence by hanging, prescribed by s.354 (5) Cr.PC, was again examined by the Supreme Court Deena v. Union of India.^104 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 modern medicine.”^105 Later in Pt. Parmanand Katara v. Union of India^106 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.^107 In Smt. Triveniben v. State of Gujarat^108 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^109 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.”^110
Section 12 (1) (e) of the Constitution of the Republic of South Africa, 1996^111 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.^112 The court was unanimous in declaring death penalty to be a 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)^113 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^114 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 on irrational 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.^115 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:^116 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 few 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
India being a state party to the ICCPR is required to periodically submit a country report about the measures it has taken to give effect to the rights recognised therein. The emphasis on progressive abolition is contained in article 6 (6) which states: “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” In 1989 the UN General Assembly adopted the Second Optional Protocol to the ICCPR which aims at abolition of death penalty. Article 1 requires that no one within the jurisdiction of a State Party to the Second Optional Protocol shall be executed. India is not a signatory to the Second Optional Protocol. At the meeting of the Human Rights Committee, set up by the ICCPR to examine complaints against state par- ties, held on July 24 and 25, 1997, the Attorney General for India was questioned in particular about India’s track record on the death penalty. The Attorney General informed the Committee that in India even when sentences are imposed in the rarest of rare cases, they are normally not carried out. He also furnished statistics gathered from various states: In 1991, there were 24 sentences imposed out of which about only 4 were carried out. The President intervened in about 75% of cases. In 1992, 6 sentences were carried, in 1994, 1 and in 1995, 2 and the percentage of sentence carried out was getting less and less as compared to what was imposed.^122 The explanation offered by him for India not signing the Second Optional Protocol was that “the legislative wisdom today is that the actual sentencing is rare. The actual execution is even rarer because the President intervenes in about 75% cases and reduces the sentence to life imprisonment and therefore today the legislative perception is that capital punishment should not be abolished, particularly because it is rarely exercised, but some sort of a concept of retribution still remains in the mind of the legislature.”^123 In its report, which it required should receive maximum publicity, the Committee expressed concern at the lack of compliance of the Penal Code with article 6 paragraphs 2 and 5 of the Covenant. It therefore recommended that India abolish by law the imposition of the death penalty on minors and reduce the number of offences car- rying the death penalty to the most serious crimes, with a view to its ultimate abolition.^124 A document produced by Amnesty International in May, 1999 shows that at the end of 1998, 68 countries in the world have totally abolished death penalty for all crimes. As many as 91 countries including India and the United States have retained death penalty as a form of punishment. United Kingdom and Canada became abo- litionist for all crimes during 1998. While there is a strong move towards abolition, there have been moves the other way too. Ethiopia, St. Kitts and Sri Lanka have, after a long gap, reintroduced death penalty as an offence and this purportedly has popular support in those countries. In Thailand too death sentences have resumed after a number of years and execu- tions are being carried out by shooting by the machine gun. A court in Vietnam recently sentenced a Thai busi- nessman to death for having cheated two state owned corporations in export deals.^125
On July 17, 1998, after three years of discussions, governments assembled for the conclusion of the diplomatic conference in Rome to establish a permanent International Criminal Court (ICC). 120 countries voted in favour of the statute creating the ICC, 21 including India abstained and only 7, including the U.S.A. and China voted against it. When the statute receives the 60 ratifications it will enter into force and have jurisdiction to try in- dividuals for crimes against humanity, war crimes, genocide and aggression. In the deliberations that preceded the signing of the treaty, there were divergent views on whether the death penalty should be explicitly included as a penalty, with Trinidad and Tobago, the Arab states, Nigeria, and Rwanda in favour of its inclusion. The U.S.A., supported by Japan, made an intervention that the principle of complementarity would permit coun- tries to still use capital punishment to punish the core crimes. The end result is that the death penalty cannot be awarded by the ICC as a punishment for any of the offences it tries.^126 This is not an insignificant development since such a large body of countries has overwhelmingly rejected death penalty as a form of punishment. For those concerned with popular opinions and majoritarian views, the ICC statute cannot possibly be ignored.
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.”^127 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.^129 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.^130 The Cr.PC^131 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 fundamental human rights. The concept carries in it the ideas of humaneness, social justice and fairness.” He then queries:^134 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 convicted 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