With each judge understanding the guidelines of capital punishment in India differently, the death penalty becomes a "lethal lottery".

Death penalty for rarest of rare How do judges make the call
Voices Capital Punishment Wednesday, December 20, 2017 - 16:00

A Tiruppur court on December 12 awarded six men the death penalty for the role they played in an 'honour' killing that sent shock waves across Tamil Nadu.

The killing took place on March 13 2016, at Udumalaipettai, just eight months after Sankar, a Dalit, and Kausalya, a Thevar, got married. Defying her dominant caste family’s wishes, Kausalya went ahead and married Sankar, whom she fell in love with in the first year of her college.

As per the plan concocted by Chinnasamy, Kausalya’s father, four men set out to kill Sankar on March 13, 2016. CCTV footage of the murder showed three men getting off a motorbike and attacking the couple, who were out shopping that day. Kausalya had just received her salary and the two had decided to buy something for Sankar’s birthday. The men hacked Sankar to death using sickles and Kausalya sustained grievous head injuries.

But Kausalya was not one to be cowed down. She deposed against her family, and as a result, six people have been sentenced to death.

The Special Public Prosecutor, U Sankaranarayanan, argued in court that this crime fell under the category of ‘rarest of rare’ and, hence, the accused deserved capital punishment.

But what does ‘rarest of rare’ mean?

Is it how ‘rare’ the crime is or is it ‘rare’ in the sense that brutality to that degree is not witnessed very often?

What constitutes ‘rarest of rare’?

In the iconic Bachan Singh vs the State of Punjab verdict, the 5-member bench of judges defined the guidelines to be followed while prescribing a death sentence, wherein life is the norm and death is the exception. As per the recommendations laid down, judges must look at the aggravating and mitigating factors of the crime and the criminal, they have to weigh the factors and justify that the convict is beyond reformation.

Section 354(3) of the Criminal Procedure Code (CrPC), which was added to the Code in 1973, also requires judges to justify the reasons behind awarding death instead of giving life. But how does one argue that a convict is beyond reformation unless they have been given the chance to change for the better?

“Practically speaking there are no guidelines to arrive at a conclusion that in a given case reformation is possible and death penalty may be avoided,” says Justice K Chandru, retired judge of the Madras High Court. “It has been proved that most murder cases happen either due to a family quarrel, such as land disputes, or if the convict suspects the fidelity of the spouse. It is comparatively rare to see murders motivated by politics or for pecuniary gain. So the possibility of reformation is higher in the former examples … What judges normally look at is how heinous the crime was and the larger interest of society.”

Understanding ‘rarest of rare’

‘Rarest of rare’ is often misunderstood to mean the rarity of the case. However, the argument is far more nuanced than that. Judges are supposed to look at the case holistically – understand the factors that led to the crime, the circumstances of the convict and the criminal, among other things – before pronouncing the judgement.

And because there is no clear guiding principle to follow, the argument of rarest of rare rings hollow and judgements are becoming more judge-centric.

A study titled ‘Matters of Judgement’, published by the Centre on the Death Penalty, at National Law University, Delhi, in which sixty former judges took part, looked closely at the principle of ‘rarest of rare’. The judges who took part in the study admitted that this principle is extremely confusing. Different courts and different judges follow different methods when it comes to their understanding of the principle.

“Let’s take the example of Naxalism in India. When a person is accused of being a Naxal and is produced in court, there are two ways judges can view him based on their understanding of how society works and how they interpret Naxalism in the country. One may view him as absolute scum who deserves the highest punishment for working against the State … The other may view him as a misguided youth who thinks he is ushering in change – that he can be reformed to become a part of society again,” says Dr V Suresh, National General Secretary of the People’s Union for Civil Liberties.

According to the Death Penalty Report 2016, most prisoners awarded the death sentence in India are from economically and socially vulnerable sections of society – they mostly belong to backward communities and religious minorities.

The study found that over 80% of prisoners facing capital punishment had not completed their school education and nearly half of them had begun working before the age of 18. It also found that a quarter of the convicts were either juveniles or between the ages of 18 and 21 or were above 60 years when the crime was committed. Of the death-row convicts the study had access to, Dalits and Adivasis constituted 24.5%, while members of religious minorities made just over 20%.

Gap between number of judgements and executions

India recorded an 81% jump in the number of death sentences awarded in 2016 as compared to 2015, a recent Amnesty report has found. However, in the last decade, India has seen only three executions – Afzal Guru, Ajmal Kasab and Yakub Memon.

The Death Penalty Report 2016 found 1,486 people were given capital punishment between 2000 and 2015, but the Supreme Court upheld only 73 cases. In 2015 alone, 101 convicts were given capital punishment, but in 49 cases the sentence was eventually commuted to a life term. The year saw a single execution – that of Yakub Memon, who was convicted in the ’93 Mumbai blasts.

This gap, in the number of death penalties awarded and the number that is actually carried out, is once again the result of the judicial confusion that exists over capital punishment in India.

A major concern in the legal fraternity is how the public seems to be baying for blood in high-profile cases even before the accused is produced in court. Judges may then get swayed into believing that by awarding capital punishment, they are appeasing the masses.

“In the Rajiv Gandhi murder trial, the special court judge Navaneethan handed out the death sentence to all 26 defendants, without making any distinction of the individual role they played in the conspiracy. In fact, during the appeal in the Supreme Court, an argument was advanced by the defence counsel that the action of the special court was nothing but judicial assassination,” says Justice Chandru.

This differing perspective – which is so dependent, among other things, on the judge’s background, his/her upbringing and education, the values s/he upholds, how s/he understands the social fabric of the country, etc. – is where the confusion stems from, making the death penalty a “lethal lottery”.


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