Live And Let Die

Gautam Patel

He has been on death row for years. Now, three days before he was scheduled to be put to death, the Central Government has stayed his execution. This particular case, Balwant Singh Rajoana, seems to be peculiar. He was convicted for the assassination of Punjab’s Chief Minister Beant Singh in 1995. He chose not to represent himself. He still does not seek a reprieve. He says he has no grounds to do so, and has no faith in our system. Instead, today, it is the ruling party in the state that urges clemency.

This political tug-of-war — and it is entirely political — distracts from the question we should be asking ourselves: is it time to abolish the death penalty?

In a few weeks, it will be 32 years since five Supreme Court judges in Bachan Singh v State of Punjab held the death penalty to be constitutional, but limited it to the “the rarest of rare cases”, saying “for 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.”¹

When are the alternatives foreclosed? Are they ever foreclosed? Bachan Singh was the second constitutional challenge to the death penalty;² and a later case, arguing that Bachan Singh left open the door for periodic review, also failed.³ In a 1998 paper, Dr S Muralidhar argued that though the trial court must draw up a “balance sheet” of aggravating and mitigating circumstances and only impose death where there is “no alternative”, this seldom happens.⁴ Invariably, the reasons “turn on the nature of the crime or on the role of the offender in the crime. The background of the offender and the possibility of his reformation or rehabilitation is seldom accounted for.” This is precisely what Bachan Singh did not have in mind.

The arguments against the death penalty (for its abolition) appear to me to be compelling. The Asia Pacific Human Rights Network points out that the recent trend, though not universal, is toward abolition, including in international treaties to which India is a signatory, in the establishment of war crimes tribunals for Rwanda and former Yugoslavia, and the International Criminal Court. In our system, too, there is the same trend. The 1983 Machhi Singh case, of truly horrific contours, apparently watered down the earlier rulings; it actually set out five categories, and if the case fell within any of those, a death sentence was held to be justified.⁵ More recently, in 2008, two judges of the Supreme Court in the Swamy Shraddananda case disagreed on the sentence, and it was referred to a larger bench.⁶ Here, the Supreme Court acknowledged that the manner in which these sentences were being handed down was uneven, that there is “the subjective element” and sentencing “depends a good deal of the personal predilection of the judges”. It spoke of a “want of uniformity” and a “marked imbalance”, lopsidedness, a poor reflection on the criminal justice system, and expressed its reluctance in confirming the death sentence in that particular case. Instead it recommended a life sentence, for the entirety of the convict’s life.

The largest issue with death sentencing is the sheer irreversibility of the process. If a mistake has been made — and this is not unknown — there is no way to set the clock back, to make reparations. Arguably, this is every judge’s worst nightmare: what if I made a mistake? In arguing for and against at the theoretical level of justice and jurisprudence, we forget the terrible, frightening intimacy of the issue.

Shortly after he retired, Justice Lentin, one of the Bombay High Court’s most humane and just judges, wrote a sparkling memoir of his life and career as a lawyer and as a judge. For the most part a witty and endearing read, it contains one passage of heart-rending pathos. The young Lentin, as a lawyer, defended a man accused of murder. He was found guilty and sentenced to death. While awaiting execution, he sent for Lentin. Visiting him in Thane Jail for the only time in his life, Lentin recalls:

But he was found guilty and sentenced to death. Head high, proud and erect, he took it with bravado, unflinchingly.

While awaiting execution, he sent a message through the jailer that he wanted to see me. It was a forbidding prospect. Again came the message; he wanted to tell me something and that this would be his last request before he was hanged a few days hence. I could not refuse. I went to Thane Jail for the first and the only time. Gone was the high head. Gone was the pride. Gone was the erect bearing. Gone was the bravado. Gone was the huge hulk of a man. Instead, I found a broken man, a crushed, stooping figure who could but whisper and who spent the last few hours of the life left to him reading the Gita he had never read before, praying to a God he had never believed in. I determined never to visit anyone in jail again. I never did. I determined never to do a murder case again. I never did.

This resolve I carried to the Bench. I never tried a murder case and therefore never imposed the death penalty. Frankly, I was afraid to do so. For that is a penalty which can never be recalled.

Lentin did not advocate abolition. But his words raise more basic questions. Can a society that allows the killing of human beings call itself civilised? Should retribution have any place at all in any system of ‘justice’? This is not the world of gladiatorial combat with its thumbs-up/thumbs-down crowd-pleasing decision making. This is not entertainment. In any truly civilised society, whether to allow a man to live or to execute him is something that should be decided not by emotion and politics but by reason; and if we cannot trust ourselves to reason alone, and if the judges of our highest courts are themselves so often in a moral, ethical and jurisprudential quandary, then that is not a decision we should allow ourselves ever to take.