Death Penalty is State-Sponsored Murder, the Indian Judiciary Must Put a Stop to Executions

An Ahmedabad trial court’s decision to sentence as many as 38 people to death for the 2008  bomb blasts that killed 56 people in Gujarat tears to shreds the judicial circumspection urged by the Supreme Court of India in Bachan Singh v. State of Punjab (1980) on the question of capital punishment.

Judge A.R. Patel accepted the prosecution’s claim that the role played by over three dozen people satisfied the “rarest of rare” doctrine, while sentencing 11 others to life.

The convicts have already spent 13 years in jail and their defence lawyers intend to appeal. Over the past several decades, death sentences pronounced by trial courts have mostly been overturned by the higher judiciary. It is to be hoped that the 38 men will also have their lives spared when their appeals are heard. At the very least, their cases deserve closer scrutiny and well-considered adjudications.

The fact that all of the 38 are Muslim, while Hindus found guilty of mass murder on the same scale have been spared the death penalty is bound to raise questions about the true meaning of ‘rarest of rare’.

While sentencing Babu Bajrangi, Maya Kodnani and others for their roles in the Naroda Patiya massacre of 97 Muslims in the 2002 Gujarat riots, judge Jyotsna Yagnik ruled out imposing capital punishment because she said it went against “human dignity”.

It is another matter that the two persons she found guilty of directing the massacre, rape and vandalism that took place at in Ahmedabad on February 28, 2002 – Babu Bajrangi and Maya Kodnani – are permanently out of jail, perhaps thanks to their closeness to the current prime minister, who was Gujarat chief minister at the time. Kodnani has in fact been acquitted by the high court and the state refuses to file an appeal, while Babu Bajrangi is on bail claiming ill health.

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The late Chief Justice of India,  Y.V. Chandrachud, came around too late to abolitionism after having presided over Bachan Singh, which set the ‘rarest of rare’ doctrine – observed more in the breach, with too many trial court judges summarily pronouncing the death sentence.

Incidentally the majority verdict in Bachan Singh by a five-judge bench of the Supreme Court (with Justice P.N. Bhagwati dissenting) was written not by Chief Justice Chandrachud but by Justice R.S. Sarkaria.

Did the Justice Chandrachud harbour doubts, hesitation or misgivings over the matter even then? On that, a little more below.

But to stay with Bachan Singh for a minute, what did the Supreme Court majority in 1980 say after weighing in great detail the arguments for and against the death penalty?

“…[F]or persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” (emphasis added)

As a well-researched report by Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry) of 2008 said:

“In 1989 Justice Chandrachud said, ‘Life is never static. It moves on. I believe that the time is now ripe for asserting that the death penalty ought to be abolished… It would not be far from right to say that the death penalty neither deters the criminal who is determined to kill, nor does it act as a fear in the mind of a marginal criminal who is always optimistic that he will not be found and if found not be convicted of murder and if so convicted will not be sentenced to death…Since the death penalty has served no purpose, neither logic nor experience would justify its continuance on the statute book…The death sentence…must be discarded once and for all’.”

Powerful words. If only he had said something akin to this and acted on it nine years earlier.

The dissent by Justice P.N. Bhagwati in Bachan Singh is a tour de force that ought to be a must-read for every judge and lawyer. 

This dissent is dated 1982 as he took two years to write it. 

“What might’ve been” is a question historians avoid. And yet, for non-historians, it is tempting to ask: if Chief Justice Chandrachud had indicated doubts even then, might his and Justice Bhagwati’s opinions have persuaded one or more of the other three – perhaps even Justice Sarkaria himself who went to great lengths in weighing differing views – and Justices A.C. Gupta and N.L. Untwalia to swing to an abolitionist stance?

Justice Bhagwati wrote:

“Death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and the affluent usually escape from its clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being violative of (the Indian Constitution’s) Articles 14 (equality before the law) and 21 (protection of life and personal liberty).”

Justice Bhagwati had assiduously sought to inform himself about global jurisprudence just as his own minority view got mentioned, albeit in a footnote (Number 104), by the great Justice Arthur Chaskalson (who noted the non-availability of the full text of Justice Bhagwati’s dissent then), while delivering the verdict in State v Makwanyane (1995) as president of the Constitutional Court of the Republic of South Africa. That was the judgment in which he and his multi-racial, multi-religious colleagues unanimously ruled that that the death penalty was unconstitutional.

Had the Supreme Court of India ruled against capital punishment in 1980, the executive and legislative branches might most likely have swallowed it, with little opposition.

Consider what India was like in 1980: the year Indira Gandhi returned to power after having massively lost the 1977 elections she had called following the lifting of the State of Emergency she imposed in June 1975. The 1970s had generally been peaceful years in most parts of India. Even the movement led by Jayaprakash Narayan was almost entirely peaceful, the only violence that occurred having come from state entities. The violence in Punjab – responsibility for which lies with more entities than is generally believed – was still nascent. 

It is possible to imagine that Mrs Gandhi would probably have taken an anti-death penalty judgement in her stride and moved on. 

She might well have remembered that after the M.K. Gandhi assassination, his own sons and Narayan Desai, son of Mahadev Desai (the legendary secretary who had predeceased Gandhi), had appealed against the death penalty for Nathuram Godse.

Moreover, she would have been preoccupied with consolidating her position. 

Also, by then several countries, including Britain, had abolished the death penalty. Globally the human rights organisation Amnesty International had begun campaigning for worldwide abolition. 

Incidentally, President A.P.J. Abdul Kalam, who sent a most likely innocent man – Dhananjoy Chatterjee – to the gallows in 2004 went on record later about his opposition to the death penalty. Chatterjee was an indigent security guard at a nondescript apartment building in Kolkata. Researchers from the Indian Statistical Institute in Kolkata, having gone through the so-called evidence on offer, concluded that he had been framed for the murder of Hetal Parekh.

At least two of India’s recent presidents, K.R. Narayanan and Pratibha Patil – refused to sign on state-sponsored-murder orders that had been sent to them by the Union home ministry.

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The latest Gujarat court sentence will most likely be overturned on appeal: that is the very least the higher judiciary can do to respect the Bachan Singh “rarest of rare” doctrine. 

But the sentence should never have been pronounced in the first place: the struggles for justice begin mostly in the lower judiciary. That is where the defence of the indigent accused – especially peoples of the ‘lower’ castes and Muslims – is sadly lacking. 

N. Jayaram is an independent journalist.