Thanks to the Law Commission’s public discussions and the coincidence of Yakub Memon’s impending execution, I dug into my old writings to see what I had written on capital punishment. Here are some writings that were published in the Ahmedabad, Bangalore, Mumbai and Pune editions of Mirror):
FUTILITY OF LIVING DEATH (September 5, 2014)
The death sentence no longer furthers either retribution or deterrence
The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgements confirming the death penalty. Otherwise, all review petitions are considered by the judges in chamber without another hearing. This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man.
The futility of capital punishment has often found mention in this column. More recently, rulings of the Supreme Court on the unacceptable length of time between the imposition of a death sentence and execution were lauded – the court has consistently ruled that even a convict sentenced to death enjoys the constitutional protection of the right to life until the last breath. The Supreme Court has documented, with examples, how convicts on death row have gone insane or physically infirm, just waiting to know if they would be put to death or pardoned. Of late, under-trials accused of gruesome crimes that are widely reported in the media have been found dead in prison under mysterious circumstances – typically explained away as suicide, they are recipients of lawless justice meted by the honour code among prison inmates.
Expectedly, hardliners rail against such considerations. If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity. They would accuse defense lawyers of frustrating execution. A typical line one hears is that only in India one experiences delays in execution and that the system is broken. The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in American society.
Nothing could be farther from the truth as is underlined in a judgement handed down just six weeks ago by a Californian court. Striking down a death sentence handed down in 1995 to a rape and murder convict, the court has held the death penalty system in California to be violative of the constitutional protection against imposition of cruel and arbitrary punishment. The court found that since 1978 (when California introduced a new law on capital punishment), over 900 individuals were sentenced to death there. Only 13 have been executed, 63 died of natural causes, 22 committed suicide, and the rest still languish in prison. Indeed, some prison inmates have died of “drug overdose” or “violence in the exercise yard”.
The review and appeal of a death sentence takes more than 25 years in California. The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course. Since 2006, no execution has taken place. Over 20 per cent of the death row convicts have crossed the age of 60 in prison. The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed.
“Indeed, the law, and common sense itself, have long recognized, the judgement reasons, “that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition.” These observations could well have been about India. Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India.
The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts. In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike “plea bargains” rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny. The super-rich settle to save super-expensive litigation costs. The impoverished end up in jail. The quality of legal representation they then get is proportionate to their financial strength rather than strength of their merits.
Our Supreme Court’s latest decision on a public review of death sentences is therefore understandable – one has to be truly cautious about consigning any human into the living hell that the death sentence represents.
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LIFE AFTER DEATH (January 24, 2014)
The power to take away human life enjoins an obligation to do it with grace
It is a sudden blast of oxygen. The Supreme Court has passed a well-articulated and cogent order to save fifteen pathetic lives from the hangman’s noose. The methodically-documented record extracted in the judgement demonstrates the abject apathy of government towards convicts on death row.
Going by past experience, large sections of the media may air populist, shrill and typically-uninformed voices of critique. Acts of mercy toward death convicts are always controversial. When President Pratibha Patil granted pardon to some death row convicts, sections of the media derided her with headlines like “President Pratibha Patil, the Merciful”, “Who Has She Pardoned?”, “President Pratibha Patil goes on Mercy Overdrive”, and the like. Therefore, the progressive ruling of the Supreme Court that gives India room to stake claims of being sensitive and humane deserves robust defence.
First, a line on the scope of the relevant law: Articles 72 and 161 of the Indian Constitution empower the President of India and the Governors of Indian States to pardon from punishment, or to suspend, remit or commute any death sentence. Indeed, this power is an extraordinary executive power vested in the head of state. However, successive governments in our young Republic have resisted introduction of transparent clarity on how such discretion is to be exercised.
Governments have historically convinced courts that no guidelines should be laid down, that no timeframe should be set for decisions on mercy petitions, and, that absolute arbitrary and whimsical exercise of such discretion is perfectly legitimate. Disagreeing, the court has pointed out that the right question to ask is whether “supervening circumstances” have come into being. These include delay in processing the mercy petition, violation of procedure for handling the petition, and insanity of the convict. The original conviction would remain unchanged but courts may reduce the penalty to a lower one based on merits of the supervening circumstances.
For sections of society opposed to compassion towards any convict on death row, no supervening circumstances can matter. The easiest argument to adopt against any reduction in penalty is to recount the gravity of the crimes for which the death penalty was awarded. Nothing can be more fallacious. By law, death can only be handed for grave crimes. Therefore, necessarily, every petition for mercy from death would be one involving a grave crime. The court has rightly observed that it is no argument to point to the gravity of the offence as a ground to reject a mercy petition.
In a nation with over-abundance of human lives, the value of human life is naturally low. The record of state apathy towards the lives saved by the court is heart-rending. In violation of the law and past court rulings, many death-row convicts were segregated and held in solitary confinement without any human company despite appeals or mercy petitions being pending. The court has urged the jail system to read and honour the law.
The power to grant mercy under Articles 72 and 161 is to be exercised under the aid and advice of the government elected to office by the people – the President is only the designated head of state. Most of the convicts covered by the order have been in custody for a decade or more. Their mercy petitions have moved back and forth between the Home Ministry and the Rashtrapati Bhavan. Often, the files gave the President inadequate information. In some cases, jailors sent repeated reminders without avail. In some files, the Home Ministry parroted a recommendation of rejection without supplying all the information the President sought. In no case did the Home Ministry explain the inordinate delay. Meanwhile some convicts were driven officially insane – rendering them legally unfit for death penalty and physically unfit for life.
Except for considering laws to enable convicts to contest elections, our politicians have had no interest in making other laws to govern humane treatment of convicts – death-row convicts are a meaningless component of the electorate. The Supreme Court has reiterated that until the point at which the noose snaps life out of the convict, the right to life guaranteed under the Constitution would be validly available. Since India is a signatory to international conventions that outlaw cruelty and degrading treatment of convicts, the courts would treat the conventions as if they were local law.
The court has also laid down guidelines on how to handle mercy petitions in future. The right of human beings to legitimately take away another human’s life enjoins an obligation to do so gracefully. The Supreme Court has done well to ring a reminder.
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NO MORAL HAZARD WITH PARDON (January 31, 2014)
Last week, this column lauded the Supreme Court’s decision to commute death sentences for fifteen convicts into life imprisonment. One of the points made in it was that pointing to the gravity of the crimes involved is no argument since an award of the death penalty could only have been in the case of grave crimes. There is another dimension to the issue that bothers a lot of readers.
One question routinely asked is whether granting pardon from punishment to a convict erodes the sanctity of a punishment legally handed out by due process of law. Another aspect is whether mercy petitions arbitrarily enable a review of the ultimate judicial decision objectively taken earlier on the merits of the crime. Both these issues are important. They point to what economists would call a “moral hazard” – of whether it erodes the disincentive to commit crime by re-opening even a final sentence in a grave crime. Each of these questions has comprehensive answers.
First, pardon is granted in extraordinary circumstances – it is an exception and not the rule. The decision on whether to pardon, reduce or alter the sentence of punishment is taken on the basis of supervening circumstances. The power to grant pardon is a discretionary one, exercised only by the President of India or the Governor of the states. The provision is a power i.e. a right of the head of state to make an extraordinary intervention to grant pardon. It is not an obligation that casts a duty on the head of state to grant pardon.
Constitutions of various nations bestow such a power because they are conscious that even the judicial system is ultimately manned by human beings who are amenable to making mistakes. Moreover, a death sentence may been imposed despite noticing that the quality of the trial and the evidence was suspect – for example, the conviction and sentencing of Afzal Guru in the case of the attack on Parliament was driven by the fact that the attack was on a symbol of Indian democracy. Somewhat like how the British sentenced Bhagat Singh to death in a murder case after he admittedly bombed the central legislative assembly.
In such circumstances, the Constitution permits discretion to the head of the state to consider whether an intervention would be necessary. Such a power could be exercised due to extraordinary supervening circumstances (say, the convict having become insane) or even purely to achieve the objectives linked to matters of state. For example, when Sarbjit Singh, an Indian convict was sought to be brought back from Pakistan, it was a provision enabling mercy petitions in Pakistan’s Constitution that would have been used.
In short, the very same constitutional system that legally metes out punishments also empowers heads of state with extraordinary powers to make extraordinary interventions if circumstances warrant. Therefore, there is no erosion of legal sanctity at all – the legally-meted conviction remains intact. A criminal is punished for who he is. When supervening circumstances inflict an enormous change on him, the Constitution provides a forum to pardon him – there is no moral hazard.
Second, India’s Supreme Court has repeatedly held that a challenge to a grant or refusal of pardon cannot be arbitrary. The check and balance of judicial review against arbitrariness would apply to such cases too, and writ petitions may be entertained. Therefore, it is necessary for the head of state to be cogent, reasoned and obedient to the guarantee of non-arbitrary conduct when the head of state deals with such petitions.
The court would not at all be sitting in another appeal over whether the conviction was meritorious. The court would solely be reviewing whether any relevant factor was ignored (example: the convict having become insane), or whether irrelevant factors were considered (example: the convict was pious). Therefore, merely because the power to grant or refuse pardon is discretionary, it does not follow that the discretion is absolute. The state cannot grant or refuse pardon whenever and however it chooses without having to explain itself to the court carrying out the review. A decision refusing pardon should meet with as much reason and application of mind as one granting pardon.
It is the abject disregard of relevant factors such as insanity in some cases, and the absolute arbitrariness and apathy in handling of the petitions that led to the Supreme Court’s intervention last week. If the state had reasonably rejected all those petitions within reasonable time, our society and the convicts would have achieved timely mutual closure. No supervening circumstance would have emerged. There would have been no case for judicial intervention.
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DEAD MAN TALKING (March 13, 2015)
India’s Daughter has caused turmoil. Any film in the “lest-we-forget” genre should spark unease to make society face up to unpleasant realities. However, that would not mean that other conflicting realities do not exist. For India, the perception that it is not a safe place for women is an unpleasant reality. Yet, the perception that India is indeed as safe or as risky a place as any other part of the world too is a reality.
Acknowledging one reality does not negate the existence of other conflicting realities. The refusal to accept a disturbing reality makes a society appear like one that lacks strength of belief in conflicting realities. Just last week, a friend from abroad toured India for the first time, covering Delhi, Agra and Rajasthan even the world’s attention was riveted on women’s safety in India thanks to the ban on India’s Daughter. She enjoyed a completely uneventful and safe trip through the heartland of what is considered by many non-travelling Indians to be the lawless zone.
In reply to a Facebook post expressing happiness at this tour, some felt that I should thank my stars that she escaped unhurt. Another non-Indian lady who too had undertaken an enjoyable uneventful solo tour here a few years ago said she was not surprised at all. Meanwhile, a professor in a German University denied internship to a male Indian student since India’s sons have not been able to resist raping her daughters for just too long. After the German Ambassador to India intervened, a formal apology followed.
Most human minds are capable of only seeing one appealing reality to any story. At best, the mind may grudgingly accept another reality, but would emphasize that the other reality is a marginal exception to the rule. One such unpopular reality is that India’s Daughter threw a convict on death row to the wolves. Mukesh Singh, the illiterate driver of the bus in which the Nirbhaya sexual assault was committed agreed (presumably, he was not tricked into it) to be interviewed for the film and face up to his realities. Evidently, the other convicts (housed in the same jail and whose faces were featured in the film) did not participate in interviews.
Singh aired his views on what could take a victim’s life – one, her resistance (lesser in degree to former CBI Director Ranjit Sinha’s infamous “when the rape is inevitable” remark) and two, the dangerous fallout of death penalty (similar to views of credible women’s rights activists). If the daylight slaughter of a rape-accused in Nagaland is any barometer, Singh’s life is in grave danger inside jail – after all, his brother was mysteriously found dead within days of arrest.
For every Shukla, Mishra and Tiwari, the film’s footage of Singh’s interview is adequate to demonstrate his lack of remorse. No one believes that one needs to be a psychologist or face-reader to make this conclusion. Some even say his words did not contain remorse because he was defending himself. Singh stands demonized in the Indian eye.
One neither has unedited footage of all that was filmed nor aware what questions were put to him to beget these answers. The government has now called for unedited footage. A psychiatrist friend says, for most people, spoken words alone matter. Why else, she asks, do people get happy just hearing the word “sorry” regardless of whether it is meant. An apology under duress from the Indian-hating German professor gives them closure. But the participation in the film by Singh (potentially, remorse-driven) does not aid closure.
Late Vinod Mehta recounts an anecdote in Lucknow Boy: Journalist Alistair Cooke says to Jawarharlal Nehru: “I was taught there were two sides to every story. But I find frequently there are four or five sides to a story.” Nehru’s reply: “Welcome to the Hindu view of truth.”
To address social problems, it is important to make films to understand the convict’s mind. It is as important to protect the rights of convicts, particularly those on death row who agree to help society study their minds. If society believes that such convicts have no rights at all, no assault, including sexual, on them, would shock such a dead society. Since India cannot officially view India’s Daughter, she should view Susan Sarandon’s Dead Man Walking.