//Musings on the Death Sentence

Musings on the Death Sentence

The death penalty is carried out by hanging in IndiaIn 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.

Aditya, 24 July 2009, www.somethingaboutthelaw.com