In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.
Albert Camus in the famous essay titled ‘Reflections on the Guillotine’ stated that “knowing that you are going to die is nothing”, but “knowing whether or not you are going to live, that’s terror and anguish”. The horrors of the death penalty itself are known to one and all. But to make a convict wait endlessly thinking of the day he would be executed is worse than death itself. So, has also the Supreme Court of India stated in numerous cases. Narayan’s case is not an isolated one. The National Crime Records Bureau reports that till 31st Dec. 2005, there were 273 people sentenced to death (not clear as to by trial court or SC ) and at the same time, there has been only one execution in the last ten years. This in comparison to the fact that there were 1422 executions between 1954 to 1963 alone. I’m in no manner advocating that the execution of their sentence be carried out, but am sympathizing for one can not even imagine the plight of each of these people awaiting their sentence to be executed.
The law on this issue has been well settled by the Indian Supreme Court. The landmark case of Triveniben v. State of Gujarat stated that a delay in the execution of the death sentence is a valid ground for commutation of that sentence to a life sentence. It has been acknowledged that a receiving a sentence of death is one thing; but a death sentence followed by a lengthy period prior to execution is another. Earlier, in TV Vatheeswaran’s case, the Court stated that the question is whether in a case where after the death sentence is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, the Court can commute the sentence on that ground ?
The answer to this, affirmative as it is, lies in the rationale that after Krishna Iyer’s judgment in Sunil Batra’s case, even a prisoner has the rights guaranteed to every citizen by the Constitution. This also includes the right to life and liberty. To make the accused suffer endlessly as a form of torture till the time the execution of his sentence is carried out necessarily is a violation of this right and thus a ground for commutation of his sentence. Then why is it that so many still lie in the jails suffering such horrid moments and feelings ? Perhaps it is because the delay factor comes into play when the Apex Court pronounces its judgment on the case and other remedies exhausted. Though not in Narayan’s case ( the SC pronounced judgment in 2000 and no legal proceeding/ mercy petition since ), with the President of India sitting on 44 mercy petitions at present including the famous Afzal Guru, the State has a major role to play in factoring this delay. This is only a minor subset of the fact that thousands of poor people languish in jail awaiting a hearing in their case and not being able to afford bail. The Criminal justice system of the country is plagued by such unaddressed issues and still justifies itself as a moral institution with convictions in the Jessica Lal and Nitish Katara cases.
India shares the honor of being one of the last democratic countries in the world to keep capital punishment in its arsenal of repression. We believe that it is the right way to deter terrorism and other heinous crimes. The aspect of deterrence plays an important role then. In fact so much so, with 150 people dead in the Hooch liquor tragedy in Gujarat, the state Government is planning to introduce an amendment in the Bombay Prohibition Act so as to include the death sentence as form of punishment. If passed, it would be one of the few laws prescribing a death sentence apart from the penal code itself and would make a mockery of the requirements under the Indian Penal Code of a death sentence; act to be committed with intent to cause death or knowing that in all probability is must cause death etc… This aspect of deterrence playing a role itself is useless. For instance, various proclamations are being made to give the death penalty to terrorists. But we do know that preparing themselves to commit the most heinous of crimes also includes a preparation to die; thus minimizing the role if any, of deterrence. In fact, most death sentences or laws having a death sentence arise out of a special situation; like the one in Gujarat and to quote Camus here once again, “if, therefore, there is a desire to maintain the death sentence, let us atleast be spared the hypocrisy of a justification by example”.
As a society, both on legal and humanitarian grounds we believe that one must be put to death without causing any suffering. Suffering in this sense is not only of the time preceding the execution but also at the time of the execution. Few believe that the devastating degrading fear that is imposed on the convict for months and years is a fear more terrible than death. If one talks of retaliation; it is a fear and suffering that’s never imposed on the victim.
On the other hand, in order to reduce the suffering at the time of death, various methods of execution are being used. We started out with beheading the convict, then the guillotine, firing squads, hanging, electrocution, gas chambers and the lethal injunction. Each of which, in a continuum designed to make the death less painful. When the United States and the European Union long ago dismissed hanging as mode of execution; it may primarily on this ground.
However, just two weeks ago, the Supreme Court of India categorically stated that hanging is not inhuman in any manner and that it was proven to be the least painful of all modes of execution. Wrong on all counts I must say. On the face of it, it gets one to start rethinking on the justice component in Court decisions. But after some research, I believe that the reason the Court said so, is far more complex. This because, the only mode of death recognized by Indian Law is by hanging and declaring that mode unconstitutional would result in making the death sentence inoperable. This was an argument, I recall, that was used by the petitioners in the Afzal Guru case and could be one of the reasons of the Court’s remarks just a few weeks ago. Extremely smart, yet illogical in its understanding of the death sentence, the way it is carried out and its horrors.
For a society that is known to show a concern for humanity and human existence as a whole, it has been my attempt to show that there are some frailties attached to the death sentence and the way be perceive and execute it. Perhaps we need to rethink on it being inflicted as a form of punishment itself. Else, we should devise ways such that infliction of the punishment itself is not in the form of suffering preceding the punishment, thus violating the prisoner’s rights and belittling a humanitarian ground if any.
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I especially loved reading all your responses and on some notes I agree with you while on the other I do not. Firstly as Sidharth Menon rightly mentioned that the death sentence is ordered in “rarest of the rare” cases. This to a layman would mean that the crime committed is so heinous that it can not be compensated for in any other way. We as law students are probably aware of the intricate procedure that the court and the judge undergo before pronouncing a death sentence. Again there is a provision which negates the applicability of the lower court’s decision to award penalty before it is approved by the HC. Thus as far as I or may be any logical person would reasonably conclude that the procedure must and should be foolproof. Taking examples of Abul Fazal, we all know he has done a crime as grave as spreading terrorism, killing innocent people who were trying to defend the nation and yet we keep him in jail as his petition is before the President. There are numerous examples of such cases. Take a recent example of Ajmal Kasab. Do any of us have even a bit of doubt of the fact that he had killed some 20 innocent people on CST. I hope none has. The videos clearly show him armed with AK 47 firing indiscriminately, what we do we keep him in jail for some 3 years trying to get to the root cause of the problem, we set up special cells for him, provide him with best food, provide him with security, in short spend humongous sum on him and after 5 year ‘if’ the court orders him a death penalty, he sends a letter to the president requesting to put a stay on the said decision and then the file stays with the preisdent for 5 years and by the time the decision comes the man is already too old to live. We are talking about the less painful way of sending him to the place where he deserves, you know because he is human and he has a right to die with dignity or some rights which protect him from getting the most heinous of punishments. I ask a simple question to you all, WHERE ARE THE RIGHTS OF PEOPLE WHO DIED IN THE ATTACKS??? or take another example of a rapist. Didn’t the woman whose reputation was taken over, didn’t she have a right to live with dignity???? I don’t understand why do we have to be so goody good to the hardened criminal…Why does our judiciary have to think twice before awarding a death sentence to a person who deserve nothing but that.
does police can register two criminal cases for one crime under section 107/151 CrPC after six months under section 452 IPC place time and date of crime are same please help!
Views reflected above seem to condense the two traditional streams of thought on the theories of justification of punishment namely the Deterrent Theory and the Retributive theory (Desert Theory). Yes, it is quite true that death penalty for obvious reasons pinch our conscience harder than most other forms of punishment. However, if we are to seek a logical answer to the question of rationality behind imposing the death penalty and its justification it would help to take a step back and evaluate the concept of punishment in itself. It is my personal belief that punishments as a deterrent is “not” an effective tool in many a circumstance. The reason for this is that not all actions which entail corresponding sanctions (punishments) have an element of premeditation. As a result I would agree with proponents of the classical retributive theory like Kant and Hegel that punishment as it exists today can be better explained(even though I doubt whether it can ‘justify’ the concept of punishment) if we give in to our intuitive sense of justice where a particular action “deserves” a corresponding consequence. Therefore, at some level or the other we acquiesce to a tacit agreement that the criminal deserves punishment.
Now if we are to focus on the issue at hand, namely death penalty, the criticism to the explanation that retributive theory offers is that it is not possible to objectively evaluate the severeness of the punishment that the criminal deserves or in other words, we cannot determine the proportionality of the punishment to be imposed. We have to again fall back on our intuitive conception of justice and morality to decide which particular action deserves a death penalty. Liberal democracies have therefore over the years insisted that the life of a person be taken away only when the crime is of such a nature that it scars our shared sense our morality and justice, gravely and only through a ‘procedure established by law’. This seems to explain the jurisprudence of the Supreme Court in coming up with the “rarest of the rare” criteria.
It is surprising therefore how at one level our progressive ideas of justice and morality tell us how the death penalty in itself is inhumane but then we try to convince ourselves that the utility that accrues to the society by way of deterring other criminals justify this punishment. If deterrence truly is the concept that works in the background as an explanation or justification of the death penalty I wonder why we talk about humanitarian concerns about the modes of executing this punishment. Shouldn’t we adopt what the Taliban has quite effectively used to deter people – public hangings and beheading? Most of us would answer this question intuitively in the negative, but why?
The most viable option in the face of this visibly irreconcilable conflict would be to abolish the death penalty. This is why I was surprised when I came across an Amnesty International report which inter alia documented the re introduction of the death penalty by few countries which had previously abolished it. It looks like we’ll have to wait a while before the world decides to choose between the inexplicable comfort of retaining the death penalty and the convincing rationale behind arguing for its abolition.
P.S: I fail to understand what chimps have to do in the discussion simply because of the fact that they are not considered capable of committing a crime (.i.e. if you are not alleging a motive behind the incident that led to the death of the deputy mayor of Delhi…..kidding) like someone of unsound mind (lets ignore the issue of political correctness in comparing people with unsound mind to apes) though I do agree that we need to review our ideas of modernity.
I just came in from http://gorilla.wildlifedirect.org/2009/07/30/ape-rights-and-wrongs/#comment-12066 and said the following:
I absolutely adore our great apes and other wild and pet life. I salute the work you folks do and frankly envy you.
As somebody who is a rather hapless legatee of the exquisite traditions of cow worship ie worship of the loving, the productive, the meek, I can sense how we are so so off balance.
Morally hanging upside down in our worship of destruction and dominance.
If you ask me, apes and other non human species must have ancestral rights and territories.
Of course, we have to relook our ideas of modernity.
Your musing draws attention to cruelty and there can be no question that we just jail somebody and “throw away the keys”.
Norman Mailer’s coverage of Gary Gilmour, in his “Executioner’s Song” is if memory serves right, about the same issue of delayed executions.
just because the execution is delayed is no ground to criticize the reasoning of granting the capital punishment to the accused .. what guarantee do we have anyway that the other forms of execution dont take that long?
The reasoning in Afzal Guru’s case as pointed out in this post clearly reflects a lack of holistic understanding on the whole issue of death penalty.
Arguendo,if this reasoning holds good then the Court in its belief that hanging is the least painful is factually contradicted by the interminable delays in its execution which aggravates the death penalty. The logic of this which I have been exposed to explores the sadistic angle of making the person suffer because of the grave and heinous crimes committed by him, hence the issuance of a death penalty. Apparently, death is not enough but is in fact making it easier for the criminal to escape (If it can be termed that way) and he should suffer more. This “sufferance” which should led to regret would be reduced by hanging-instant death as compared to slow and painful torture. However, even if this is accepted then the regret or acknowledgment of one’s wrongs comes a tad bit late when the person is already dead.
I guess the Court is trying its best to justify the existence of death penalty by prescribing the “least painful” mode of execution or rather believed to be least painful.