Saturday, October 12, 2019

Death Penalty: Inconsistent Sentencing, Political Mercy Pleas, Erroneous Convictions. Abolition, A Systemic Correction

Inconsistent Death Penalties

Had the wheels of justice ground faster—instead of at the proverbial snail’s pace—this man would have been hanged by now. The convict from a remote village in the Nanded district of Maharashtra was accused of killing his wife and four children in 2007. The District Sessions Court awarded him death sentence which was upheld by the High Court and the Supreme Court. His review petition was dismissed by the Supreme Court in 2012, which it now ‘recalled’ observing that all the courts relied on an ‘extra-judicial confession’ and ‘ignoring medical evidence’. His sentence has been commuted to life imprisonment. (ChoudharyAmit Anand. “SC admits mistake in awarding death sentence, commutes it to life sentence.” The Times Of India. October 2, 2019. https://bit.ly/31SNFSW

In May 2019 the Supreme Court had acquitted six persons whom it sentenced to death ten years before in a case involving dacoity, gang-rape and murder of five persons of a family in Nashik in 2003. The case escalated through the tortuous judicial processes and the Apex court confirmed the death sentences on April 30, 2009. In its latest judgement the Court observed that the accused were

“… from the lower strata of society and are very poor labourers … false implication cannot be ruled out since it is common occurrence that in serious offences, sometimes innocent persons are roped in.” (Mahapatra, Dhananjay. “6 awarded death by SC in 2009, acquitted in 2019”. The Times Of India. May 5, 2019. https://bit.ly/2oVJbwu)

A google search for “SC admits mistake”, prompted by the first report cited above, yielded five results. Here are the remaining three: “SC seeks Centre's reply on plea challenging mandatory death penalty under SC/ST Act” (The Times Of India. May 10, 2019. https://bit.ly/2MmvHBH); “Decade after awarding death, SC commutes sentence to life imprisonment for delay in deciding mercy plea”. (ChoudharyAmit Anand. The Times Of India. February 22, 2019. https://bit.ly/2LUYpuAand “SC reverses man’s death sentence; revives debate on extreme penalty” (Mahapatra, Dhananjay. The Times Of India. November 28, 2018. https://bit.ly/2pTbbRP). All these cases were reported by The Times Of India between November 2018 and October 2019. 

Socio–Politics Of Mercy Petitions

On March 8, 1993, an APSRTC bus from Hyderabad was on its way to Chilakaluripeta in the Guntur district of Andhra Pradesh. In the pre-dawn hours, it was waylaid by two dacoits, Sathuluru Chalapathi Rao and Gentela Vijayavardhan Rao, as it cleared the town of Narasaraopeta and was just twenty kilometres from its destination. The duo brandished deadly weapons and threatened the passengers to hand over their valuables. One of them carried a can of petrol and sprinkled it from the back of the bus to the front entrance. They threatened to set fire to the bus if their demands were not immediately met. Whether some passengers resisted or whether the dacoits panicked was not clear but the duo closed the door and carried out their threat. They set fire to the bus and twenty-three sleeping passengers were engulfed in flames and charred to death. Several others sustained serious burn injuries. The culprits were arrested ten days later and the case culminated in the Supreme Court which upheld the death sentence on August 28, 1996. The Supreme Court judgement which narrated the gruesome details of the crime was reported in the India Kanoon portal: “Gentela Vijayavardhan Rao And Anr vs State Of Andhra Pradesh on 28, August, 1996” (https://indiankanoon.org/doc/1517391/). George Fernandes and Rajni Kothari filed a mercy petition. President Shankar Dayal Sharma rejected it. Mahaswetha Devi filed a second mercy petition. The Supreme Court stayed its own sentence in view of the pendency of the mercy plea. Finally, President K. R. Narayanan commuted their sentence.      

 

On August 14, 2004, Dhananjay Chatterjee an ‘impoverished guard’ in a Kolkata building was hanged. Although bearing a Brahmin name, Dhananjay Chatterjee was far from being a member of the Kolkata bhadralok, or intellectual elite…His execution followed a shrill campaign…”, wrote N. Jayaram:  “How India hanged a poor watchman whose guilt was far from established” (Scroll.in. July 21, 2015. https://bit.ly/35d7FSe). An emerging 24/7 news channel added its bit to the shrillness of the campaign. The misfortune of birth status added to Chatterjee’s misery of poverty. He had spent fourteen years in jail before he was hanged. President, A. P. J. Abdul Kalam rejected his mercy plea. However, it must be said in his defence that although the President is vested with the authority to pardon a criminal under Art. 71 (1) (c) of the Constitution, in practice, the President merely follows the recommendation of the Home Ministry. The case did not arouse ‘the quality of mercy’ in the conscience of civil rights activists. No NGO or civil rights group knocked on the doors of the Supreme Court to open it in the small hours to hear a revision plea. No newspaper headlined the next day “And they hanged Dhananjay Chatterjee”! 

 

If the frenzy of misplaced social vigilantism took its toll in Chatterjee’s case it was the political frenzy that impacted the Indira Gandhi assassination case. This is not to say that the assassins did not deserve death sentence. One of the assassins, Beant Singh fired thirty-three bullets into her body. He was killed instantly when her ITBP security guards opened fire. A second assassin Satwant Singh fired twenty-three bullets but was seriously injured in the crossfire with a bullet lodged in his spine. In normal circumstances, his condition would have rendered him ineligible for hanging. A plea to the Supreme Court to allow him to recover was disallowed. A medical team hastily removed the bullet to ‘ready’ him for the hanging. (Bhatnagar, Rakesh. “The accused did not want to be defended”. DNA. October, 30, 2009 https://bit.ly/2Iw5T5c). Ram Jethmalani pleaded in vain that the case against the third assassin, Kehar Singh was flimsy and highly circumstantial and did not ‘prove guilt beyond all reasonable doubt’. The President disallowed mercy petitions with utmost dispatch. 

 

The partisan approach of civil rights groups, political parties, state legislatures and the ‘intelligentsia’ in seeking mercy for convicts has not escaped the attention of the Supreme Court. Balwant Singh Rajoana, who was sentenced to death for killing Punjab Chief Minister Beant Singh in 1995, did not file a mercy plea but the NGO ‘Lawyers for Human Rights International’ sought a review of the trial court verdict. The Punjab state legislature passed a resolution seeking mercy for Rajoana. Similar resolutions were passed by the Jammu & Kashmir legislature in the Afzal Guru case and the Tamil Nadu legislature in the Rajiv Gandhi assassins’ cases. On the other hand, the Court pointed out; poor people like Dhananjay Chatterjee who does not have societal support always got a raw deal with respect to mercy petitions. (“Why wide disparity in treatment of mercy pleas? SC asks” The Times Of India. May 27, 2012. https://bit.ly/31Q51jf). The Supreme Court, however, agreed that there was subjectivity and it was individual perceptions of the judges that decide whether a convict should be awarded death sentence or life imprisonment. (Mahapatra, Dhananjay. “Judges' perception dominant factor in death or life sentence: SC”. The Times Of India. Jan 25, 2011. https://bit.ly/30MffzX).

Abolition, A Systemic Correction

It is the grey areas in the administration of criminal justice that cause these anomalies. If all are equal in the eyes of the law, why was the mercy plea of Dhananjay Chatterjee rejected and the one in the Chilakaluripeta bus burning case entertained? The contrast is stark. A person whose crime might not have been ‘proven beyond all reasonable doubt’ was sent to the gallows but the sentence of the duo who murdered twenty-three people in cold blood was commuted. In the Neeraj Grover murder case (2008) a small time film actress (whom Grover, creative head of Synergy Adlabs was helping to find a foothold in the film industry) and her boyfriend were accused of committing the crime. The duo cut up Grover’s body into 3oo pieces, packed them in gunny bags and was carrying the body to burn it deep in a forest. Mumbai tabloids published other macabre details of the crime and its aftermath. According to one, after the boyfriend stabbed Grover, with the dead body lying in the next room, the duo had sex twice before their ‘next operation’. The actress was sentenced to three years, not for murder but for trying to destroy evidence. She was released by the end of the trial. The boyfriend was sentenced to three years for destroying evidence and ten years for culpable homicide, with both sentences to be run concurrently. In the Naina Sahni murder case (2013) the accused, Sushil Sharma cut up her body and tried to burn the pieces in a restaurant tandoor. He was not awarded death sentence. In the Jessica Lal (2010) and the Priyadarshini Mattoo (2010) cases too no death sentences were awarded. In two ‘high profile’ murder cases in Hyderabad the well-heeled accused, to use an Americanism, ‘walked’.

In an article in the ‘Journal of Law and Criminal Justice’, Arvind P. Bhanu mentioned that fourteen retired judges wrote to the President that “Supreme Court had erroneously given the death penalty to 15 people since 1996”. (“Arbitrariness in Capital Sentencing System: No Disappearance of Furman-Like Challenge”. Journal of Law and Criminal Justice. December 2014, Vol. 2, No. 2, pp. 187-199). The Law Commission Report on Death Penalty (No. 262, 2015) pointed out that the differences in the quantum of punishment was due to the interpretation of ‘mitigating circumstances’, such as age. According to it, the data collected “substantiate the picture of inconsistent, arbitrary and judge-centric application of the death penalty.” (p.149). The following portion of the report is worth citing verbatim:

“Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.” (pp. 223-224)

The report, however, takes into consideration concerns regarding terrorism and makes the following caveat:

“… [C]oncern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences. The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.” (p. 226)

The inconsistencies and vagaries in the application of law need no further elaboration. It is a systemic failure and needs systemic correction. Is it time the death sentence is abolished for all crimes except terror-related cases? The most compelling argument for the abolition of death sentence is that it is irreversible, even if at a later date fresh evidence surfaces to prove the innocence of the accused. It is also advisable to make the definition of ‘life sentence’ not amenable to subjective interpretation. In serious crimes like homicide, a ‘life sentence’ should mean ‘till the normal end of a life, without remission’. In serious crimes against humanity it may be necessary to avoid philosophical distinctions such as whether it is ‘retributive’ or ‘reformative’. The punishment should be seen only as a ‘deterrent’ till such time the society evolves to a level when a further revision could be considered.

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