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India: Lethal Lottery: the Death Penalty in India

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India: Lethal Lottery: the Death Penalty in India Lethal Lottery: The Death Penalty in India A study of Supreme Court judgments in death penalty cases 1950-2006 Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry) May 2008 AI Index: ASA 20/007/2008 Amnesty International 2 Lethal Lottery: The Death Penalty in India ACKNOWLEDGEMENTS This report has been researched and written by Bikram Jeet Batra, consultant to Amnesty International India. Part I was written by Dr. V. Suresh and D. Nagasaila, PUCL-TN&P. The report was edited and finalised by the International Secretariat of Amnesty International. Monica Vincent and Anita Abraham were previous consultants on this project. Nithya V. Raman and Cyble Soans assisted with the cases database while Devmani Upadhyay assisted with statistical analysis. A number of interns and volunteers worked on the collection and initial analysis of cases: Aditi Malik, Ajai Krishnan, Mohammad Amanullah, Ankur Singla, Ayesha Sen Choudhury, Ashirbani Dutta, Benji Zeitlyn, Dhananjaya Chak, Jhuma Sen, Kumarpal Chopra, Joel D'Silva, Lorraine Misquith, Mitasha Chandok, Neha Bhat, Neha Nanchal, Neha Sachdev, Rahul Mathur, Rakhi K., Richa Mehra, Sanat Kapoor, Saptarshi Chakraborty, Shabeena Anjum and Veronica V. Dr. S. Muralidhar, Dr. Usha Ramanathan and Vrinda Grover contributed to the initial conceptualization of the report. Amnesty International AI Index: ASA 20/007/2008 Lethal Lottery: The Death Penalty in India 3 Acknowledgement from PUCL-Tamil Nadu & Puducherry This Report is the product of the collaboration between PUCL-Tamil Nadu and Puducherry and Amnesty International and reflects the culmination of a need much felt by anti-death penalty activists. The anti-capital punishment movement in India got re-galvanised in 1995 in the wake of the wholesale sentencing by the trial court of all the 26 accused in the Rajiv Gandhi assassination case to death sentence. In the years immediately thereafter, a number of imminent executions of death sentences had to be stopped by PUCL. As the battles raged inside and out of courts, the absence of a detailed study was acutely felt. In response to the persistent questions in the law courts and from policy makers, PUCL-Tamil Nadu & Puducherry decided to embark on a study on Death Penalty. Very soon it became apparent that the absence of definite data was a major limitation to a multi-dimensional study. In the end it was decided to launch a study to critically analyse Supreme Court pronouncements on death penalty cases from the inception of the apex court in 1950 till date. The initial conceptualization and creation of analytical framework for study of the case laws was done by PUCL-TN following numerous meetings and brainstorming sessions. Thereafter when Amnesty International India office initiated a similar study, the collated material was shared with AI to continue the study. Several batches of law students from the National Law School and other law schools were involved with the initial phases of the study. Though the list of students and activists who contributed is too long to enumerate, the contributions of four then- students (and now important professionals in their own right) Gopalakrishna Shenoy, Pradeep Nayak, Prashanth Venkatesh and Shailesh Rai in particular needs, to be recorded. K.G. Kannabiran, National President PUCL, not only encouraged but also helped to guide the study. It is a matter of immense satisfaction that the study has been completed and the report is finally being released. Dr. V. Suresh President PUCL-TN/Puducherry March 2008 Amnesty International AI Index: ASA 20/007/2008 4 Lethal Lottery: The Death Penalty in India PREFACE By K. G. Kannabiran Senior Advocate President – National Executive, People’s Union for Civil Liberties On the morning of 30th December 2006, those of us living in countries of the eastern hemisphere were startled to witness the unforgettably morbid and macabre sight of a very composed Saddam Hussein being prepared for his execution. Rarely, in recent memory, has the world been witness to an execution within minutes of the event. While the imminence of the execution was no secret, the turning of the entire world into a stage to endlessly replay the actual hanging has been an unparalleled event in recent memory. Continuous replay of the event provoked repugnance in many; it equally strongly stoked the voyeuristic in some, fed the morbid curiosity of others, and gave a diabolic twenty first century expressive form to the practice of revenge through ‘blood letting’, in a manner no fictional creation could as evocatively or forcefully ever have. The sentence of death awarded to Saddam Hussein, the former President of Iraq by an interim Iraqi Government still under the supervision of US and allied forces was, like all judicial sentences of death, pure and simple pre-meditated judicial assassination. While political trials with international ramifications are a special case, it remains absolutely essential to contest the validity of all death sentences as a form of punishment. It is also important to recognise that the extent of power enjoyed by a state (and the extent of its fear of dissent) determines the character and conduct of state institutions entrusted with dispensing justice and thereby the harshness of punishments meted out. The practice of executing felons for wrongs done to society has been with us for centuries and putting an end to this practice will be a Herculean task. Many of us in India have been fighting each death sentence as it arises but we have not succeeded in securing abolition as a matter of principle. The apex Court has ruled that courts should award the death sentence only in the ‘rarest of rare’ cases, but if every court trying a person for a capital offence finds that the case before it is the rarest, the progress of the abolitionists will be illusory. The study that follows should leave no one in any doubt about the arbitrary way in which the Supreme Court has upheld or commuted death sentences using the ‘rarest of rare’ formula and the judicial equivalents that preceded it. The neutrality of law and the clinical detachment of professional members of the Bench and the legal profession has always been an opaque and invalid assumption in India. As Justice Holmes of the US Supreme Court pointed out over a century ago, the life of law is not logic. Any understanding of law and justice would comprehend “the felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed and unconscious even prejudices judges share with their fellow men… The decision will depend upon a Amnesty International AI Index: ASA 20/007/2008 Lethal Lottery: The Death Penalty in India 5 judgment, an intuition more subtle than any articulate major premise.” In its unexpurgated sense, this applies to India now where examples of the partiality of rule of law institutions abound. Criminal cases such as those of Jessica Lal and Priyadarshini Mattoo in which the accused (with powerful connections) were acquitted at the trial stage are recent examples of the vulnerability of the criminal justice system to pressures unrelated to the legal system. Unless the police and investigative machinery are fully cleansed, it would be a crime to talk about deterrent or retributive sentencing and employ the death penalty as a form of punishment. The current state of impunity enjoyed by the Indian state and its investigative agencies should make us pause to think whether those awaiting execution should at all be executed. The 1984 Sikh massacre in Delhi, the post Babri Masjid Mumbai killings, the death and destruction that followed the Coimbatore blasts and the killing of thousands of Muslims in Gujarat are all examples of the state’s suspension of the rule of law during and following incidents of massive violence. Does this not itself undermine the credibility of the death sentence as a principle of rule of law? In the words of A S Zuckerman (1989)1, “The willingness of the public to accept the authority of the criminal court as a dispenser of punishment depends on the extent to which public believes in the moral legitimacy of the system. The morality or fairness of a system of adjudication hinges on many factors, such as the impartiality and incorruptibility of the judiciary. Amongst these must also be numbered a publicly acceptable judicial attitude towards breaches of law. A judicial community that is seen to condone, or even encourage violations of the law can hardly demand compliance of its own edict.” In all scientific and social formulations there will always be irreducible uncertainty, the possibility of inevitable error leading to unavoidable injustice. That we provide for irreducible uncertainty is most evident in law itself. The entire law on evidence does not require establishment of truth but proof of facts leading to an event. Implied in this effort is only an approximation. The evolution of the concept of justice implies that an accused is presumed not to be guilty unless proved otherwise and that proof should be beyond all reasonable doubt. When the ruling principle in criminal jurisprudence for centuries has been to save an innocent even if it should mean that a hundred guilty escape, how can one be so dogmatic about the absolute guilt of the accused and with an air of finality award a death sentence? It is these principles of irreducible uncertainty and the indeterminism built into criminal jurisprudence that have been what I consider to be the civilizing agent of human thought and action. With an imperfect tool to judge the guilt or otherwise of a person accused of a capital crime, what is being questioned is the certainty of the adjudicator who hands down a death sentence. To me it appears to be a subversion of the system of Rule of Law as it has evolved through the centuries.
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