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On 4 January, 2018, the Delhi High Court – through Justice S Muralidhar – handed down a death penalty reference (01 of 2016) commuting the death sentence of two death row convicts (Ravi Kapoor and Amit Shukla) in the 2009 Jigisha Ghosh murder case. I do not intend to reduce this piece to a mere abolition-versus-retention debate as most of us normally do (to politicise the debate) every time there is a hanging or a death row prisoner is waiting for the noose.
In fact, doing so would severely undermine the importance of the Delhi High Court’s decision, which has the potential of making a significant, positive impact for the future of death penalty jurisprudence in India.
Report that had Convinced the Trial Court
In March 2009, Jigisha Ghosh, 28, was kidnapped (from New Delhi’s Vasant Vihar area) and killed by the three convicts in this case: Ravi Kapoor, Amit Shukla and Baljeet Malik. The three men also robbed Jigisha of her jewellery, mobile phones, debit and credit cards before throwing her dead body in Haryana.
After seven years, on 14 July 2016, the Saket court convicted all three of them for offences under various Sections of the Indian Penal Code (IPC) (including sections 302, 364, and 394). Although the offence under Section 120B of the IPC could not be proved, there was sufficient evidence for the common intention shared by the three convicts (as per Section 34 of the IPC).
The trial court also tasked the Probation Officer (PO) to prepare and submit a pre-sentence report (PSR) in respect of the convicts. The PSR referred to the conduct of Ravi Kapoor and Amit Shukla in jail being unsatisfactory along with the fact that the two were involved in other criminal cases.
Based on the PSR (as well as on the IO’s report on the financial condition of the convicts), the trial court concluded that out of the three convicts, Ravi Kapoor and Amit Shukla were incapable of being reformed and rehabilitated, and accordingly, recommended death penalty for them.
The magnitude and brutality with which the two convicts committed the crime, according to the trial court, made it a “rarest of rare” case, warranting death sentence.
Categorising a Case as the ‘Rarest of Rare’
In practice, a determination on whether a case falls in the category of “rarest of rare” requires courts to strike a balance between certain aggravating (crime test) and mitigating (criminal test) factors with a view to establishing that the option of imposing the second harshest punishment, namely, life imprisonment, is unquestionably foreclosed. So far, this assessment has largely been based on a faulty standard such that the society’s “collective conscience” has dominated court’s reasoning in such kinds of cases, making judges mere “oracles of public opinion.”
Take for instance, the death sentence by the Supreme Court in the case of Jyoti Singh, the victim of the brutal gang rape and murder that took place in New Delhi in December 2012. In its decision delivered in May last year, the Supreme Court explicitly stated that the brutality with which the crime was committed was “bound to shock the collective conscience which knows not what to do” and that any punishment short of capital punishment will “shake the confidence of the public in the administration of the criminal justice system.” Several mitigating circumstances in favour of the convicts were not considered.
In Justice Banumathi’s own words:
Crimes like the one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime good conduct of the accused, the statement of the accused as to their background and family circumstances, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of “rarest of rare cases”.
The Supreme Court’s passion for satiating the “collective conscience” in such cases is not new-found and similar justifications were given in the cases of Dhananjoy Chatterjee and Afzal Guru, among others.
Blaming the Supreme Court, however, would be overly simplistic. On the contrary, the deletion of mandatory death sentence (Section 303 of the IPC) and the formation of the “rarest of rare cases” doctrine show uncompromised judicial compassion. It is the application of the “rarest of rare” doctrine that has caused great concern and that is to do with the fact that the standard is difficult to maintain judicially.
For some judges, death penalty is nothing short of a “lethal lottery” involving a balance sheet of the “good” and the “bad”, while for others it is the only available pill to satiate the “will” of the people. One former Supreme Court judge even went on to note that a determination by judges on whether an accused would be reformed or not “is like astrology”.
Brutality is a Necessary but not Sufficient Condition
Any debate today on the “rarest of rare” necessarily revolves around how brutal and barbaric the crime is. When the Bombay High Court commuted the death sentence of the accused in the Bilkis Bano case, senior journalists hastened to express their anguish on Twitter.
For her part, Barkha Dutt tweeted:
Rajdeep Sardesai too tweeted: “Nirbhaya killers given death sentence. Those who gang raped Bilkis Bano, killed her child, given life. Law is supreme. Or is it an a**?”
Many other registered their anguish along similar lines.
It is important to understand that brutality is only one of the factors that judges need to look at while pronouncing death penalty. Apart from that, courts must look at whether the crime was pre-planned, whether the crime was committed against persons with disabilities, so on and so forth. The assessment does not end there.
The assessment does not end there either. If the court is of the considered opinion that there are one or more aggravating factors and not a single mitigating circumstance in favour of the convict, the court must then, as a last resort, proceed to determine if the convict in future would commit criminal acts of violence as that would constitute a continuing threat to society or if there is probability that the convict can be reformed or rehabilitated. The objective behind making this assessment is clear: Life is sacrosanct (and death is irrevocable) and the State must not take peoples’ lives casually.
Like most cases in the trial court (a recent study shows that in a whopping 95 percent of the cases, death sentence awarded by trial courts are commuted to life imprisonment by appellate courts), the decision to award death penalty as the only form of punishment to Ravi Kapoor and Amit Shukla was based on an inadequate and partial understanding of the “rarest of rare cases” doctrine.
Brutality of the crime once again became the dominating (rather only) factor behind the pronunciation of the death penalty. Besides, the trial court proceeded to assess whether the convicts could be reformed or not even before it could satisfy itself that the case actually fell under the category of “rarest of rare.”
Cultivating Reverence for Life
Justice Muralidhar was cautious to note this inaccuracy:
In any event, the exercise of calling for a PSR from the PO has to be preceded by a firm determination that the nature of the crime is such that it calls for the award of the extreme penalty. The court has to be satisfied that the nature of the crime is such that it can be characterised as “rarest of rare”.
In the present case, it is not clear as to which of the three convicts – whether all of them or only few of them – actually committed Jigisha’s murder. What is proved beyond reasonable doubt, though, is that all of them were involved in the crime and shared the common intention. One is, therefore, inclined to ask: If the other convict involved in the crime and, who was more or less similarly situated, received the benefit of life imprisonment, then is it not just and fair that the other two convicts must also be given life imprisonment and not capital punishment?
Besides, Justice Muralidhar did not, and rightly so, accept the conduct of the two convicts in jail as undertrials as a sufficient factor to award capital punishment. Justice Muralidhar’s reasoning is self-explanatory:
In any event the behaviour of a prisoner during his term as an undertrial cannot be a sufficient marker for his potential for reform and rehabilitation. It might be unsafe to conclusively determine, even while the prisoner is an undertrial, that his conduct in prison can indicate his capacity for reform. Such a determination would require observing the prisoner over some period of time separated sufficiently in time and circumstance.
I was watching an interview given by Jigisha’s mother, Sabita Ghosh, to a media channel celebrating the trial court’s verdict awarding death penalty to two of the convicts. Justice Muralidhar has most certainly disappointed Jigisha’s mother. But has he delivered near-complete justice? I think so.
It would be apt to end here with a note of caution and advice from the Supreme Court (Santosh Bariyar vs State of Maharashtra):
Rarest of rare policy and legislative policy on death punishment may not be essentially tuned to public opinion. Even if we presume that the general populace favours a liberal death penalty policy, although there is no evidence to this effect, we can not take note of it. We are governed by the Constitution of India. We are afraid that the Constitution does not permit us to take a re-look on the capital punishment policy and meet society’s cry for justice through this instrument.
Justice Muralidhar must be congratulated for cultivating reverence for life in a land where the government, media, and the society is constantly baying for blood of those accused of heinous crimes.
(The writer is a lawyer and legal academic. He tweets at @ashish_nujs. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)
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