India’s dysfunctional legal ecology cannot support capital punishment

This is not an article about the religious, moral, retributive or utilitarian basis for opposing the death penalty. This is also not about Yakub Memon or the arguments for and against his hanging. This is not about terrorism, or Pakistani/ ISIS inspired terrorists. It is not about the Mumbai riots or the Mumbai bomb blasts, either. It is not about Islamic terror or Saffron terror or about other convenient labels that make for animated discussions in TV studios or Parliament. It is about our legal eco-system and its fitness and professional integrity to qualify it for putting people to death. Muslims, Hindus and Sikhs.

Such a health check is necessary, because at this very moment 1617 condemned human beings are awaiting death in our prisons. I’m guessing that the majority of Indians would say that they are dangerous to society, like a cancer, and like any cancerous growth must be excised from our body. An apt simile, no doubt, but it must be remembered that carcinomas are removed on the basis of irrefutable, scientific, proven evidence- not on assumptions, subjective surmises and arbitrary guidelines. If I could have the same faith in our legal system that I would have in a diagnosis of cancer by a competent medical institution, I would not be having the doubts about capital punishment in our country that I have today.

Added to this is a mounting pile of evidence across countries that makes the sheer finality of this sentence blood-curdling, forcing us to think again whether we are omniscient enough to play God. The latest findings of the National Law University, Delhi clearly prove that the death penalty is disproportionately applied to the marginalised, the poor and the minorities. This is also the evidence in the United States where a black is three times more likely to be executed than a white. And the real chilling finding, by the National Academy of Sciences in the USA: that at least 4% of capital convictions were found to be totally wrong! This figure is bound to be many times higher in a country like ours (for reasons given later in this article), and therefore is bound to raise the question: is our legal system so perfect as to permit us to kill other human beings in cold blood ?

A legal eco-system consists of three layers: the LEA (Law Enforcing Agency), the Judicial System and the Government. The first carries out the investigation, the second conducts the trial, and the third legislates the laws, including mercy petitions and pardons. It is my submission that all three are so badly flawed in India that we might as well toss the (loaded) dice to decide who gets to hang.

The LEA first, which means the police. Today in India NO ONE trusts police investigation – not the government, not the opposition, not the public, not the judges. The trend is to demand a CBI investigation into every major crime, and not without reason, for state police investigations are perceived to be guided by money, political expediency, career progression and increasingly now by TV debates. The whole effort is to quickly nail the most convenient candidate, and not to get at the truth: this is not a hypothesis but a fact, as the abysmal conviction rates demonstrate. They can (and do) steer investigations into letting the guilty off the hook (as the unfolding Vyapam case and the burning to death of a journalist in UP, allegedly at the instance of a Minister, shows); or in framing innocent persons, as evidenced in the Pandher and the Arushi murder cases. The most blatant example of this, of course, has to be the Hashimpura mass murder of 40 Muslims by the PAC – after 33 years all 21 accused policemen were let off for want of evidence! Evidence is created or destroyed, witnesses are intimidated or bought off or even killed, as the Vyapam and Asa Ram cases have shown, post mortems are manipulated, records are conveniently lost. What ultimately lands up in courts is either a deliberately weakened case or a concocted one. To condemn someone to death on the basis of these types of investigations is, to me, a crime no less than the one the person is accused of. The LEAs are ever willing to pander to political influence and go slow in the investigation of cases the government of the day finds inconvenient, even cases involving terrorist activities and large number of deaths. The Samjhauta blasts, the Malegaon bombing, the Mumbai riots of 1993, the massacre of Sikhs in 1984- these are prime examples of how the police can be used to protect mass murderers from the death penalty. Inevitably, in a few more years all evidence will have disappeared (this has already happened in the Sikh killing cases) and everyone can live happily ever after.

This is not to say that that all police investigations are tainted or flawed; many convictions must be correct – but that is not the point. The point is that, once the credibility and fairness of a process is irretrievably damaged, all its outcomes become suspect.

Our judicial system is only marginally better. The growing perception among the citizens (one voiced by many eminent jurists also of late) is that the kind of justice you get is dependent on your political clout and wealth, which only can ensure the marquee lawyers who can sway the courts. How else does one explain a Salman Khan getting bail in a matter of hours, a Jayalalitha’s conviction being stayed with the same alacrity, a Nanda walking free after only a couple of years inspite of deliberately killing a number of people and destroying evidence, an eminent lawyer continuing to practice inspite of being caught on tape suborning and influencing witnesses in an important murder case ? The list is endless.

The fairness of our trial system is tested in other ways also, and found wanting. One expects judges to be proactive in sifting through the quality of evidence in at least important cases relating to murder and rape, especially given the stratagems adopted by the police. One rarely sees this happening, or any application of mind. The most telling illustration of this were the Jessica Lal and Nitish Katara cases, in which the accused would have just walked away had it not been for the sustained pressure by the media and civil society. Thousands of other similar cases probably just drop through the cracks in the judicial system, unnoticed.

Equity is lacking also in the manner in which cases are taken up for hearing, leading to justified suspicion of pick and choose. Why is there still no closure in the Uphaar fire case in which dozens died due to established negligence, even 18 years later ? – the Ansals got a paltry one year sentence (yes, for proven negligence leading to the death of 67 persons!), and even that is being appealed in courts and there has been no date given for two years! Why is the Supreme Court unable to find time to dispose off the appeals of the Nirbhaya convicts, a case which the government had promised to fast track, even though it has time for the Chautalas and Sahara Shris ? I suppose justice is being done but it certainly does not appear so, and perception is all that matters in the dispensation of justice.

These murky waters have been further muddied by the Supreme Court in a few judgements relating to capital punishment. I refer to the “rarest of rare cases” doctrine and automatic commutation of death to life imprisonment in cases of delay in deciding mercy petitions. Though well intentioned, these orders display a tint of hubris and confound an already confused subject. They introduce a discretion, subjectivity and arbitrariness into a process already lacking in transparency and equity. And they’re not working. The Supreme Court has itself admitted that seven of its death penalty orders were erroneous, contrary to the rule of the rarest of rare and were incuriam. If death penalty is to be given only in the rarest of rare cases then how come 1617 people have been condemned to hang in just the last fifteen years ? Why should my life depend on the discretion of a judge who may be having a bad day, or just doesn’t like my face ? A Supreme Court or a High Court judge may use his discretion wisely , but can we expect the same from every Sessions judge holding court in a hinterland steeped in casteism, family rivalries, criminalised politicians and obscurantism ? It is precisely this kind of subjectivity which enabled Dara Singh to escape the gallows even though he had locked up a missionary and his two minor sons in a car and then set it on fire, roasting them alive. This cold blooded murder cum infanticide was not deemed to be a rarest of rare case. Some degree of discretion in law is inevitable but the constant effort should be to minimise it, not increase it as the Supreme Court has done.

Even more subversive of justice is the doctrine that delay in deciding mercy petitions shall lead to commutation to life. This short-sighted fiat has thrown open the doors of discretion to the govt., one agency which can NEVER be trusted to use it wisely or fairly.

The government is the third layer in the justice system and one more concerned with the politics of justice than its equity or fairness, It has used the doctrine of delay to the hilt for its own political ends, whether at the centre or in the states . Its shameless misuse for political ends has ensured that the killers of an ex-Prime Minister have been granted commutation (and may even be released prematurely if the Tamil Nadu government has its way), and that the killers of Beant Singh may well receive the same relief. Furthermore, the government has the discretion to decide one mercy petition and keep the others pending, depending on who it wishes to hang and who it wants to save. Petitions should be disposed off according to their place in the queue, but that’s not how the system works: the petitions of Kasab, Afzal Guru and Memon were all made to jump the queue and quickly decided (rejected) with the last being taken PERSONALLY by the Home Minster to the President at night, while other, older ones are still pending. This is unscrupulous manipulation of a dubious doctrine to begin with.

This then is the reality of the larger criminal justice eco-system in India. It is plagued with inconsistencies, corruption, opaqueness, subjectivity, discretion, cronyism, hubris and plain gutter politics. It shows no mercy or compassion to the poor and disadvantaged, indeed, it singles them out for its own brand of justice. Even in the best of societies, as Faiza Mustafa noted in a recent article, “human judgements are never so certain as to permit society to kill a human being judged by other human beings.” To permit it in a fractious and dysfunctional society like ours is an abomination. All reasonable Indians should strive to ensure that we join that group of one hundred nations which have abolished Capital punishment. We should not play God, especially when there will never be a consensus on whose God is the right God.

Avay Shukla

The author retired from the IAS in December 2010. A keen environmentalist and trekker he has published a book on high altitude trekking in the Himachal Himalayas: THE TRAILS LESS TRAVELLED. His second book- SPECTRE OF CHOOR DHAR is a collection of short stories based in Himachal and was published in July 2019. His third book was released in August 2020: POLYTICKS, DEMOCKRAZY AND MUMBO JUMBO is a compilation of satirical and humorous articles on the state of our nation. His fourth book was published on 6th July 2021. Titled INDIA: THE WASTED YEARS , the book is a chronicle of missed opportunities in the last nine years. Shukla’s fifth book – THE DEPUTY COMMISSIONER’S DOG AND OTHER COLLEAGUES- was released on 12th September 2023. It portrays the lighter side of life in the IAS and in Himachal. He writes for various publications and websites on the environment, governance and social issues. He divides his time between Delhi and his cottage in a small village above Shimla. He blogs at http://avayshukla.blogspot.in/