PUBLISHED: 21:41 GMT, 20 October 2013 |

Does the injunction, thou shalt not kill, apply to the state’s death penalty?

The International Commission of Jurists, Geneva (of which I am now an Hony. Commissioner) has correctly declared: “Capital punishment is state sanctioned vengeance. The deliberate and premeditated act of taken of taking a human life can never constitute a form of justice. It is an irreversible form of punishment that we have seen time and again cannot be administered without some degree of subjectivity and arbitrariness.”


On 30 December 2013, Justice Dattu, speaking for three judges, in Gudda’s case (murder of a man, wife and 5 year son because of the man’s association with the accused’s wife), prophetically and wisely said: “In a civilized society – a tooth for a tooth and an eye for an eye ought not to be the criterion to clothe a case within the rarest of rare (death penalty)… jacket.”

Public protests have led to productive judicial reforms in India - but have also increased the pressure on judges to hand down death sentencesPublic protests have led to productive judicial reforms in India – but have also increased the pressure on judges to hand down death sentences

It was also reiterated that “…awarding of life sentence is the rule.”

The four legs on which justifications for the death penalty stands are: revenge, deterrence, reform and just desserts. Justice Dattu has knocked off one of the justifications. He accepts that deterrence may be a reason in a “diabolical” case. But, “revenge” – whether sought by the complainant or collectively by the crowd, media or public as in the Nirbhaya rape – cannot be a reason for the death penalty.

This clarification by Justice Dattu comes at a timely juncture. What the court is saying: Forget eye-for-an-eye. Forget deterrence in all except diabolical cases. The test is: no death sentence unless it is diabolically rarest of rare. It follows that ‘rarest of rare’ does not include revenge.

The punishment tariff does not pay enough attention to reform of the accused (in terms of clean records, good pre-trial behaviour and future possibilities). Consistent with the others, the test has to be: Is the convict totally beyond redemption and reform?

Parliament attack convict Mohammed Afzal Guru was executed by India in February this year Parliament attack convict Mohammed Afzal Guru was executed by India in February this year

What is courageously forthright about the Gudda judgment is that it will dampen the ardour of a hanging judge reacting to the public clamour for death, revenge by hanging or any form of legicide. Unfortunately public clamour is becoming an intense pressure. What Justice Dattu seems to be saying, is: Take a balanced, non-vindictive stance recognising that life, not death, is the norm.

Justice Dattu’s other judgment in Jagat Rai, on the same day, is more elaborate in elucidating “rarest of rare” parameters for the death penalty.

In the late 1970s and early 1980s, there was a division in the Supreme Court between the abolitionists (Krishna Iyer, Bhagwati) and retentionists (Thakkar The “rarest of rare” formula was the compromise. In Jagat Rai, the court pointed out that while under the old code (pre 1974) death penalty was the norm (Section 367(5)), the present code (post 1974) reverses this.

As Jagat Rai surmises: Impose death penalty when any other punishment would not meet the ends of justice after maximum weightage is given to the mitigating circumstances in favour of the offender (Machi (1983))?


So how is the balance sheet between mitigating and aggravating circumstances to be drawn? Murder itself is not sufficient to pronounce the death penalty. In Lachma Devi (1985) death as a sentence was characterised as “a barbaric penalty”. The test is: it must be brutal, diabolical, revolting? The truth is that we don’t quite know what this means.

In 1976, AR Blackshield found the sample of Indian cases to be inconsistent. In 2008, the Amnesty Report made a similar conclusion pointing to egregious blunders in respect of evidence, facts, law and sentencing.

Justice Dattu’s sample is also disconcerting. The major test is: does the murder or offence shock the conscience? Whose conscience? Of the Court? Of the Court as the trustee of the collective conscience of the community? Or as the Supreme Court put it in Surja Ram (1997) that after a dispassionate assessment: “Punishment must also respond to the society’s cry for justice against the criminal.”

We are going round in circles. To say that “rarest of rare” means an objective assessment of what hurts or damages some normative moral notion is based on guess work rather than brilliance. But to say that the death penalty is a response to “society’s cry for justice against the criminal” is totally astonishing.

In the first instance the issue relates to objectively assessing moral norms. In the second version, the court is supposed to take on board the actual wishes of the mob, protest on the streets or the media or in all of them? The second alternative is simply unacceptable. It is like a Nero putting his thumbs up or down after hearing the roar of the crowd. It is a social form of lynching. Either way, the test is unreliable in fact and practice.

But the import of Justice Dattu’s judgment that if individual eye-for-eye is barbaric, so is collective revenge.


Justice Tarkunde called death penalty a “judicial murder”. We might understand this on a wider scale if we note that 8000 persons in Pakistan and over 1000 in Bangladesh have been sentenced to death. Suppose it is ordered that all of them are to be hung at the same time and the same place, would it seem like genocidal killing even if done away from the public gaze? Does it become less lethal and more acceptable if the hangings were done over a space of time in different places?

Judicial murder, state legicide or killing by law in cold blood seems as precarious as it is wrong. Abolish the death penalty. Try it for 10 years, but insist a life sentence is a life sentence subject to just prison or sentencing exceptions. Just try it.

The writer is a Supreme Court lawyer

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