“If the security guards behave in this manner who will guard the guards? The faith of the society by such a barbaric act of the guard gets totally shaken and its cry for justice becomes loud and …a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl, by the security guard certainly makes this case a ‘rarest of the rare’ cases which calls for no punishment other than the capital punishment”.
Thus spoke Justice A S Anand while confirming the death penalty given to Dhananjoy Chatterjee.1 These sentiments were shared by a majority of the people and the media 10 years after they were first uttered. Public outrage brought back the debate on death penalty centre stage in a case which abolitionists found difficult to defend. However, the aftermath of the hanging has led to a plethora of issues which were ignored and brushed aside such as the emergence of the hangman as a role model and the number of mock hangings leading to deaths of children. The impact of punishment in brutalisation of society is no more a rhetoric issue, but a reality.
India has retained the death penalty on the ground that it will be awarded only in ‘the rarest of the rare cases’ and for ‘special reasons’.2 In fact, India is one of the 78 retentionist countries (118 are abolitionist either completely or partially) and has even retained the death penalty for political offences. Death penalty was challenged as being unconstitutional in the Supreme Court in Bachan Singh’s case,3 an argument which was rejected by the Supreme Court. The courts have repeatedly held that the death penalty is not unconstitutional and does not offend Article 21 of the Constitution of India. In Machhi Singh vs State of Punjab,4 a three-judge bench of this court following the decision in Bachan Singh, observed that the rarest of rare cases is when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community or when the murder is committed for a motive which evinces total depravity and meanness, where the murderer is in a dominating position or in a position of trust, or a murder is committed in the course of betrayal of the motherland or when murder of a member of a scheduled caste or minority community, etc, is committed not for personal reasons but in circumstances, etc, which arouse social wrath. Or when the crime is enormous in proportion, as in the case of multiple murders, say, of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, or when the victim of murder is an innocent child, a helpless woman, the old or infirm, or when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, or when the victim is a public figure generally loved and respected by the community and the murder is committed for political reasons. The court lay down the following propositions: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’; (iii) life imprisonment is the rule and death sentence is an exception; and (iv) a balance-sheet of aggravating and mitigating circumstances has to be drawn up and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The court thereafter observed that in order to apply these guidelines the following questions may be answered: (a) Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence? and (b) Are the circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
The Supreme Court, however, has made its intentions clear by refusing to lay down a stark distinction of what constitutes the ‘rarest of the rare case’ and left it to the discretion of the judges hearing the case despite knowing that the same would lead to a differing set of results. Ultimately each judge’s conscience and political beliefs dictates the dictum. Thus, though the court was shocked by the manner of the offence and the fact that the security guard had raped and murdered an 18-year old girl, in Soni Thomas’s case, the Supreme Court overturned the death penalty given in the case of rape and murder of an 11-year old girl by the co-paying guest, and in Mohd Chaman’s case,5 the court gave a life sentence for the murder and rape of a one and half year old girl. The murders were all equally brutal and shocking and arguably fulfilled the ‘rarest of the rare’ criteria, but the court for reasons recorded in the judgment did not deem fit to give capital punishment. This difference in the political and legal understanding of the judges is most starkly seen in Krishna Mochi’s case.6 In this case, justice M B Shah acquitted the accused for insufficiency of evidence and the majority, but justices B N Agarwal and Arijit Pasayat not only found the evidence sufficient to convict but also enough to put the accused to death. According to the judges, the offence by militants which has been described by them as “caste war between haves and have nots” was one of extreme depravity and proportional to the crime. In Raja Ram Yadav and Others vs State of Bihar,7 the Supreme Court held that in the case of a feud between rajputs and yadavs the retaliatory killings by yadavs could not be held to be deserving of death penalty. Similarly in Ramji Rai vs State of Bihar8 the Supreme Court held that a case of triple murder by a mob by chopping off the bodies of the victims was not the rarest of rare case. In Kishori vs State (NCT) of Delhi9 the Supreme Court commuted the death of the accused who had murdered three members of a family during the Sikh riots in Delhi.
The judgments do not provide a clue as to what constitutes the ‘rarest of the rare’. The impossibility of laying down guidelines could lead to an arbitrariness of the decision and also amount to cruel and degrading punishment. The rationale of proportionality of the crime and aggravating circumstances, in practice, have no objectivity as one cannot objectify that ‘this’ minus ‘that’ equals death. The abolition of the death penalty has been argued mainly within the liberal legal framework as it fails to achieve the stated objectives of punishment, i e, deterrence and just deserts. Cesare Beccaria wrote in 176410 that capital punishment is founded on vengeance and retribution, and not on reformation of the criminals and prevention of future crimes, which is the purpose of punishment, i e, the deterrence argument. The retributivists also argue that capital punishment is cruel and degrading and disproportionate and opposed to the original social contract, which does not give the state the right to take life. There is considerable evidence to support these arguments. Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, concluded that “it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment”.11 It also concluded that “The fact that the statistics... continue to point in the same direction is persuasive evidence that countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance upon the death penalty”.12 Thus there is no evidence to support that crime rates decrease with the imposition of the death penalty.
Crime and Punishment
Recent crime figures from abolitionist countries fail to show that abolition has harmful effects. In Canada, the homicide rate per 1,00,000 population fell from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to 2.41 in 1980, and since then it has declined further. In 2002, 26 years after abolition, the homicide rate was 1.85 per 1,00,000 population, 40 per cent lower than in 1975.13 From the retributivist or just deserts argument too, which focuses on the morality of punishment and justifies the same as it is given for moral wrongs committed by autonomous individuals who are morally accountable for their actions, punishment should be for the offence committed and should be commensurate with the same. While retributivists do not deny that punishment has certain consequentialist concerns like prevention of crime, it is not the sole purpose of punishment. The main purpose of punishment is ‘censure’ for a moral wrong or ‘burden’ for the unfair benefit gained from the crime. The punishment should not only be such as to negate the benefit of the crime, but also proportionate to the offence. The retributivists are opposed to death penalty for reasons that utilitarians support and also for reasons of fallibility of judgment. A judgment being given by human beings based on evidence produced in courts, the possibility of human error cannot be ruled out and the irreversibility of death penalty makes it dangerous and opposed to the principles of proportionality.
Since 1973, 113 prisoners have been released from death row in the US after evidence emerged of their innocence of the crimes for which they were sentenced to death. Some had come close to execution after spending many years under sentence of death. Recurring features in their cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defence representation. Other US prisoners have gone to their deaths despite serious doubts over their guilt. The then governor of the US state of Illinois, George Ryan, declared a moratorium on executions in January 2000. His decision followed the exoneration of the 13th death row prisoner found to have been wrongfully convicted in the state since the US resumed executions in 1977. During the same period, 12 other Illinois prisoners had been executed. In January 2003 governor Ryan pardoned four death row prisoners and commuted all 167 other death sentences in Illinois.14 In India where torture as a means of evidence gathering is in practice, the number of convicts who are actually innocent can be only imagined. In Joginder Singh vs State of UP15 the Supreme Court while dealing with the issue of custodial torure, quoted the National Police Commission’s third report which while referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the expenditure of the jails.
However the problem with the liberal legal discourse is that the same argument could be used to argue the normatively opposed value. And the deterrence and proportionality principle are used by retentionists too. This is most glaringly seen in the two judgments of the US Supreme Court. In Furman vs Georgia,16 the court struck down the death penalty stating that it was cruel and unusual punishment in violation of the eighth and 14th amendments. However in Gregg vs Georgia17 the same court held that death penalty was constitutional and held that capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime and that the concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information. The views expressed in Gregg’s case could be well that of our Supreme Court. The same liberal argument can be used to support and to oppose death penalty. The death penalty is demanded most vociferously in the case of a poor offender for whom imprisonment is not considered a harsh enough penalty as his life outside prison may be harder than life imprisonment. Reformation is also opposed for this reason – it is seen as a reward for punishment. Hardship as a normative value in punishment will support harsh penalties for the poor whose lives are harder. The statistics also beg the questions: Would death penalty be justified had it been effective? And do at least some of the cases where death penalty was awarded satisfy the ‘rarest of the rare cases’ criteria?
The death penalty has to be opposed on not just moral grounds but also because of the political economy of crime and punishment. Normative theories that advocate justice and equal respect for all individuals overlook the systemic inequities that exist and target different individuals in a different manner. This appears to be a systemic failure, but is a more institutionalised response embedded in the nature and role of the State. Individualisation of crime helps maintain the façade of neutrality of crime and punishment. Marxist criminologists, Rusche and Kirchheimer state that the penal practice of a society is functionally adapted to the needs of the labour market: changing forms and uses of punishment can be explained by reference to the changing character of the economy and to oscillations in the labour market. Blue-collar illegalities are brought into the domain of criminal law and white-collar illegalities constitute the field of civil law. The biases in the criminal legal system against the poor are thus inbuilt to the system. Industrialisation and urbanisation led to greater segregation between the classes. The upper classes perceived a greater threat from the lower classes and thus the need for disciplining them through the agency of the criminal law administration, and its administrators – the police. The substantive and procedural laws relating to crime and the administration of justice all reflect biases in the system. This has been reflected in many studies and is apparent in the reading of the death penalty judgments. A study of Chicago Tribune, quoted in Hood’s book, of the 131 death row inmates executed during George Bush’s tenure as governor of Texas reflected that 43 of them were represented by defence advocates who were publicly sanctioned for misconduct, 40 of them presented no evidence to the court or provided only one witness on their client’s behalf and 29 used psychiatric testimony condemned as untrustworthy by the American Psychiatric Association.18 Justice P N Bhagwati in his dissent in Bachan Singh’s case has made two astute observations. Firstly, that it is impossible to eliminate the chance of judicial error. Secondly, that the death penalty strikes mostly against the poor and deprived sections of society.
Distribution of Punishment
Hood’s book on the basis of studies and data has noted that “those who kill white persons are considerably more likely to be sentenced to death than those who kill blacks, regardless of the race of the defendant”. Though only 50 per cent of homicidal victims are whites, statistics show that 80 per cent of those executed in US since 1977 were executed for having killed a white person.19 This racial discrimination is further revealed by the fact that out of the 749 persons who were executed in the US between 1977 and the end of December 2001, only 11 were white persons who had killed black victims.20 Moreover, the death sentence is rarely awarded when the murder victim is black: a study conducted in Texas in the 1980s observes that 13.2 per cent of black persons who killed whites were sentenced to death whereas only 2.4 per cent of whites who had killed black persons were accorded capital punishment. These figures belie the assumption that the judiciary is above bias and public pressure.
Does that mean that one condones any crime? Bonger, another Marxist criminologist argues that capitalist society breeds crime. Criminality according to him has its sources in need and deprivation on the part of the disadvantaged sections of society and motives of greed and selfishness which are generated and reinforced in competitive capitalist societies. According to studies of the 1.3 million criminal offenders handled each day by some agency of the US correctional system, the vast majority (80 per cent) are members of the lowest 15 per cent income level.21 Gary Slapper points out that more deaths have taken place due to occupational hazards, due to negligence of corporations than due to homicide. Most of the former were foreseen but neglected. Most of these deaths, which can be considered more calculated and cold-blooded than many ‘murders’, are not even prosecuted. The definition of crime as an individual wrongdoing where every person is punished for his own wrongdoing, requiring the requisite mens rea allows most corporate crimes to go unpunished it. As Slapper puts it, “In orthodox morality, intention to do wrong is regarded with greater abhorrence than recklessness as to whether or not harm occurs, but as Reiman (1979: 60) has argued, a reverse formula can be just as cogent: if a person intends doing someone harm there is no reason to assume that he or she poses a wider social threat or will manifest a contempt for the community at large, whereas if indifference or recklessness characterises the attitude a person has towards the consequences of his or her actions then he or she can be seen as having a serious contempt for society at large.”22
Criminologists have also pointed out that though criminal conduct is no lower class monopoly and in fact does not do as great a social harm in terms of monetary loss and physical injury and death, as crimes committed by the rich, the same is not true of distribution of punishment which falls, overwhelmingly and systematically on the poor and disadvantaged.
The administrative division of investigation and prosecution gives tremendous power to the police and other investigative agencies, and the courts have to act on the basis of the evidence collected by these agencies leaving scope for corruption and caste, class, religious and racial biases to go unchecked. Discriminatory decision-making throughout the whole criminal justice system ensures that the socially advantaged are regularly filtered out: they are given the benefit of doubt, or are defended as good risks or simply have access to the best legal advice.23 Rusche and Kirchheimer point out that penal regimes have to be made ‘less eligible’ than the lives of the poorest and in a country like India where the majority are poor, making life ‘less eligible’ after punishment would leave little option apart from death, as social disadvantage is seen as ‘dangerousness’ of the criminal to society at large. Public opinion is portrayed by governments as the reason for retention of the death penalty, but this is a false argument of governments who in principle want to retain this tool for use in furtherance of their ends as is evident in Krishna Mochi’s case. The death penalty may not have achieved any of its stated objectives and may have led to the killing of many innocent people, but is popular as it performs many functions – it expunges the criminal from society, drains ‘dangerous criminals’ of their power completely and permanently, it has a symbolic function as it warns other deviants of the same result, diverts the public mind from the real issues of unequal distribution, controls the poor by instilling in them a moral indignation against the offender, making them internalise and institutionalise the narrow and sectarian concepts of justice and morality, stops the questioning of its values and biases and reinforces the power and supremacy of the state which includes its power to take away life at will.24
Notes
[Paper presented by Committee for Protection of Democratic Rights at a Public Meeting – ‘Against Capital Punishment’ – held on October 1, 2004.]
1 Dhananjoy Chatterjee vs State of West Bengal 1994 SOL Case No 275.
2 Section 354(3) of the Code of Criminal Procedure.
3 Bachan Singh vs State of Punjab, AIR 1980 SC 898.
4 1983(3) SCC 470.
5 2000 SOL Case No 705.
6 2002 CrLJ 2645.
7 1996(9) SCC 287.
8 1999 SOL Case No 633.
9 1999 SOL Case No 760.
10 Cesare Beccaria, On Crimes and Punishment (1764), Trans H Paolucci (1963), Indianpolis: Bobbs-Merrill.
11 Roger Hood, The Death Penalty: A Worldwide Perspective, Oxford University Press, third edition, 2002, at p 230.
12 Ibid, 214.
13 http://web.amnesty.org/pages/deathpenalty-facts-eng.
14 Ibid.
15 1994 CriLJ 1981.
16 408 US 238 (1972).
17 428 US 123 (1976).
18 Op cit, supra note 14.
19 Amnesty International: USA (1995).
20 NAACP Legal Defence and Educational Fund Inc.
21 Jeffrie G Murphy, ‘Marxism and Retribution’ in Anthony Duff and David Garland (eds), A Reader on Punishment (Oxford University Press, Oxford) (1994) 47 at p 60.
22 Gary Slapper, ‘Corporate Manslaughter: An Examination of the Determinants of Prosecutorial Policy’ (1993) 2 Social and Legal Studies 423 at 430.
23 Anthony Duff and David Garland (eds), A Reader on Punishment (Oxford University Press, Oxford) (1994) at p 306, most of the references to criminologists views are from this book.
24 These categories have been adapted from Matheison quoted in ibid.
