Death Sentence: Some observations

Justice R.A. Jahagirdar (Retd)

I have already written on death sentence. My said article has been published in Radical Humanist. I have shown, in that article, how all over the world, public opinion is veering against death sentence. Humanists, by their philosophy, are against death sentence.

Amnesty International is, from the beginning, against it. Human rights activists are against death sentence. The U.N. General Assembly has asked for a moratorium on death sentence. India is one of the countries that still retains death sentence. Statistics show that 138 nations have so far abolished death sentence. Our own neighbours, Nepal and Bhutan, have joined the abolitionist camp. Philippines and South Korea have also joined abolitionist camp. Japan, which at one time was zealous about death sentence, has recently abolished it. The following are the supporters of the abolition:

• President of Chico;
• Canada;
• Great Britain;
• European Union;
• Turkey;
• South Africa;
• State of Massachusetts (USA).

A report called “Lethal Lottery: the Death penalty in India” compiled jointly by Amnesty International and People’s Union of Civil Liberties” (Tamilnadu and Puducherry) has, apart from other points, mentioned lack of uniformity and consistency in awarding death sentence.

The Law Commission of India has upheld the death sentence in India on the ground that public opinion demands it or justifies it. Bachan Singh was not before the Law Commission. Bachan Singh pointed out that Judges are ill-equipped to capture public opinion. Sometimes, not infrequently, public opinion may run counter to constitutionalism and law. Well known case is that of Bhagalpur blinding where people came in support of illegal blinding.

To repeat, the Law Commission of India has opined that death sentence deserves to be retained. In the year 2005, A.P.J. Abdul Kalam, who apparently is against death sentence, called a public debate on the subject. It has been found in the USA that several people who were innocent had been sentenced to death. This has been established by studies of D.N.A. Unfortunately, in India there is no study of this kind. Amnesty International and PUCL in a joint study called “Lethal Lottery Publication” has condemned death sentence.It is not necessary to dwell more on the desirability of abolition of death sentence. The world opinion is now almost veering around its abolition. The land of Buddha and Gandhi deserves a homage.

On 29th November, 2008, the Home Minister mentioned in the Rajya Sabha that 44 mercy Petitions are pending before the President. These are pending since 1998 and 1999. This shows how callous we are. Unfortunately, till 1999 they were not attended to by the Home Minister on whose recommendation the President acts. Now she has commuted the death sentence of 18 convicts. How does the President exercise the powers of commutation?

Article 72 of the Constitution confers power on the President, among other things, to commute death sentence. It is an executive power to be exercised on the advice of the Home Minister. The judiciary does not come in the picture at all. It is not a judicial power, so the convict cannot insist that he should be heard.

A person has been convicted and sentenced by a Judge who must be regarded as someone trained in law. Why should such a person be pardoned? Why should the President (or the Governor in some cases) be given such a power? Some people still think such a power should not be available by law or Constitution.

From time to time power to commute death sentence into sentence of life imprisonment has been exercised by the President. It is a matter partly legal, partly ethical. That is why the Constitution does not enumerate the circumstances in which such power should be exercised. It is a matter of discretion. Courts cannot interfere with such discretion. The Courts have limited power of judicial review in order to ensure that the President has considered all the relevant material and to see that the President has not ignored a circumstance which is vital for the decision.

The Law Commission of India (1967) noted that there are matters which have not been considered by the Court where hands are tied down by the evidence led before it. Yet, death sentence may require reconsideration because (1) some crucial facts were not before the Court; (2) the facts may not have been placed in the proper manner and (3) Acts indicting innocence may be discovered after the trial.

In 1925, the U.S. Supreme Court pointed out that executive clemency exists to afford relief from hardness or from undue harshness or evident mistakes. It was pointed out again that there must be some authority to ameliorate or avoid particular judgments.

Take for example the case of Nalini in Tamilnadu. She has a child born in jail. She is in jail for the last 18 years. She has not taken any active part in the assassination of Rajiv Gandhi. The Advisory Board of Tamilnadu says “No” to her release. Why?

More irrational has been a recent decision of the Supreme Court of USA. One Teresa, a widow, was married to one Julian who had a stepson from his previous wife. After some years, Teresa developed a thirst for Julian’s property and the insurance on his son. In order to appropriate both, she decided to kill both of them. For this purpose she hired one Mathew and Rodney.
On 30th October Teresa left the door open to facilitate Mathew and Rodney to enter the house quietly. The murder took place. Both Mathew and Rodney, along with Teresa, were arrested, tried and convicted.

Here comes the rub. Rodney was given life sentence; Mathew was given life sentence. Shockingly, Teresa, who had not pulled the trigger, was given death sentence. Why? Both Mathew and Rodney had cooperated in the investigation. So what? A woman who, no doubt, arranged the death of her husband. She was not the perpetrator of the crime. The trial Court called her the head of a serpent. Her mercy Petition was rejected by the Governor. State of Virginia has recently convicted a 40 year old woman. Criminal procedure in Virginia reeked of inconsistencies. Lack of consistency is one of the arguments for abolition.

In 1980 the Indian Supreme Court upheld the constitutional validity of death sentence. Firstly the Constitution itself mentions death sentence. Secondly, law in fact lays down life sentence first and then death sentence. It laid down that death sentence should be given in the rarest of rare case, a feature not uniformly followed by all. In a recent judgment, the Supreme Court has clarified that if the accused is not of criminal mind and could be rehabilitated, his life should not be eliminated.

Justice R.A. Jahagirdar (Retd)