The award of death sentence by a court of law is a perplexing legal question which straddles humanitarian, social, psychological, and ethical landscapes. Many a time, the lower courts are seen swayed and saddled by popular and social perception, media frenzy and shock factor. However, the solace has been that the higher courts do a threadbare analysis, usually called a cymini sectores in legal parlance.
To state cases in point, there was cheers when the trial court handed out the noose to six people involved in the honour killing of Dalit youth Shankar in Tirupur. Same was the case when death sentence was pronounced on S Daswant, the youth convicted for the rape and murder of a seven-year-old girl in Chennai.
The brutality of the crimes had shocked society and it’s the collective psyche seeking death penalty. However, the cases have now been referred to the Madras High Court for ratification.
Its decision will hinge not much on societal factors but on the doctrine of the ‘rarest of rare.’ This was put forth as a ‘guiding doctrine’ by the SC for such cases in the Bachan Singh vs State of Punjab case (1980 ). The SC had then asked trial courts to apply the principle: life imprisonment is the rule; death sentence an exception.
The doctrine says that capital punishment should be awarded in the gravest cases of extreme culpability. There too, death can be awarded if life imprisonment seems inadequate considering the nature of the crime. The apex court said the trial court should balance the ‘aggravating and mitigating circumstances’ to ensure proper justice delivery. But the doctrine has not been imbibed well by the trial courts, it seems.
The degree of brutality, the shock and awe on the collective conscience of society seem to be the pervading factors even to this day. A trial court judge, seeking anonymity, said using collective conscience as a relevant consideration tends to reflect what the public feels and wants as a proportionate punishment for a crime.
A study undertaken in 2015 was revelatory. Looking at 1,790 death sentences delivered by trial courts in the 15 years and prior to that, only a meagre five per cent were confirmed by the Supreme Court. In the rest, an extraordinary 95 per cent, the convictions were overturned, indicating how trigger-happy the trials were.
“The rarest of rare doctrine is so subjective that nothing concrete emerges at the end. Mostly, the sensational and emotional aspects kick in. This results in most death sentences turning out to be instances of mob justice. But solace is when the matter comes to HC; the decision is made based on the facts, abating the emotional quotient,” said R John Sathyan, a lawyer. This was endorsed by the study, Matters of Judgement, published by the Centre on the Death Penalty, National Law University, Delhi, in which 60 former judges took part.
“Death sentences were imposed not by an identifiable and consistent interpretation of legal principles but instead by individual predilections of the judges. Punishment was not just about the accused, but was also about sending a message to society,” it said.
Despite there being an explicit prohibition in the Bachan Singh verdict on sentencing, judges are only attempting to determine the demands of public opinion.
“Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion... The perception of community standards or ethics varies from judge to judge... Judges have no divining rod to divine accurately the will of the people,” said the apex court. Advocate M Radhakrishnan said the trial court judges often had a very poor understanding of the doctrine.
“A case which appears to be rarest of rare to a particular judge will be taken by another judge as an ordinary case of murder deserving life imprisonment. Some judges look to the criminals and their psyche rather than the crime.”
There are arguments that all murders are brutal. But the judgment in Bachan Singh lists the ‘probability of reformation’ as one of the mitigating factors to be considered, and makes it clear that the obligation is on the State to establish that there is no such probability while seeking death sentence.
Veterans in the profession cite the lack of a sentencing policy and also absence of training for trial court judges on undertaking principled sentencing for the recent swell in capital punishments. This has a serious impact on delivery of justice as the possibility of trial court judges erring or becoming fallible in the absence of structured guidelines.
Death commuted to life for children’s sake
Even while it confirmed the guilt of Kamaraj and Elangovan, convicts in the murder of three women in Coimbatore, a division bench of the Madras High Court comprising justices P N Prakash and C V Karthikeyan reduced their death sentence to life. The sole mitigating factor that weighed on the minds of the judges while commuting the sentence was the ‘uncertain future’ of the three children of the convicts, Kamaraj and Elangovan. Holding that the court must also ensure that these three children do not have any anger or any reason to wreak vengeance in any manner when they grow up and enter society, the bench said, “to young minds, words of robbery, murder and death sentence are meaningless. All they would know is that the government or the judiciary was responsible for the death of their father. Leaving out to society these children would be more hazardous...”