Contours Of The Death Penalty Debate– Part I

Contours Of The Death Penalty Debate– Part I

Recently, research scholar and activist, Rohith Vemula, unfortunately committed suicide following a typical University politics drama involving the Vice Chancellor and two ‘Student Wings’ associated with different political parties. The radically turbulent state of student politics in Andhra Pradesh has been well documented and after the successful Telangana Movement, the issues have moved towards the classic class-caste-conversion circus. Without selecting sides, it is important to understand the specific flash point of student politics which escalated the situation: the execution of Yakub Memon.

vemulaThere are two strands which emerge from the discourse on the execution. First would be the ideological and the intellectual criticism of the decision. The other would be the invariable and unfortunate byproduct of this, i.e. the ‘activism’ surrounding the accused. This extra judicial activism fuelled by shallow media, reportage resulted in the distortion of a highly technical legal debate, into a matter of outrage craved out of political expediency. One may contrast the style and manner of criticism that took place the over the execution of Afzal Guru and the muted spectating during the execution of Dhananjot Chatterjee, with the execution of Yakub Memon. Its anybody’s guess if the change in government in 2014 had anything to do with that.

An often-ignored aspect of the matter is that the acts of the accused, Yakub, were acts of terrorism. Terrorism, by its very nature, is an act of violence against the State and the victims of that act were citizens of that State many of which may belong to different religions, considering the diverseness of the Indian society. The victims died and suffered injuries as Indians and not as Hindus, Muslims, Sikhs, Christians or by any other identity. The Supreme Court has earlier, while examining the Constitutional viability of the POTA summarized the nature of terrorists Acts in the country and separated them from the usual law and order problem in the country. The Court noted :


In any case, while the ideological opposition may certainly be bona fide, intellectually stimulating and fair, the ‘activism’ was merely a product of the prevailing politics and unfortunate marriage of convenience between Marxist activists and radicals.

Legal Criticism

Most intellectual criticism of the judgment revolved around two central points: the sentence awarded and the procedure followed in mercy petition . To deliberate further on these points one would need to understand the circumstances under which the judgment was given. The order of the Supreme Court, dated 21 March 2013, was the culmination of 20 odd years of prosecutorial process in our adversarial system. At every stage, from the framing of charge, the trial in the Special Court, the High Court and then the Supreme Court, the accused was assisted and defended by able legal minds.

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 Rarest of Rare

Under Article 141 of the Constitution, the Supreme Court lays down the ‘law of the land’ binding on all other Courts of the country. As a parliamentary democracy, Supreme Court does not possess the power to make as law, but under Article 141, the Supreme Court interpretation of the provisions of the law is final and binding. While it is fair to criticize the law of the land and not agree with it, for people who might be genuinely ambivalent about their position on the death penalty, the law of the land provides a fair starting point to begin the discussion, especially considering that such jurisprudence has been nurtured and developed through centuries of intellectual rigour. The prevailing law of the land, with regards to the death penalty is the principle of rarest of rare. The Supreme Court, even if it had wished for abolition of the death penalty, could not have given effect to abolition due to the fact that the statutes in India clearly mandate death penalty. It is not the prerogative of the Court to limit the maximum punishment, completely overruling the legislation without transgressing the constitutional limits of judicial review. The only way such “judicial legislation” could be “passed” is by a rather creative (read perverse) interpretation of Article 21.

memonThe law of the land, i.e. rarest of the rare, states that the death sentence can be awarded in those cases in which death takes place in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the collective conscience of the community, such that it (i.e. the community) will expect the holders of judicial power to inflict death penalty on the individual or group of individuals. Ignoring the rather characteristically self-referential approach of the Court, the basic idea behind the principle of ‘rarest of rare’ was to allow a very narrow possibility for awarding the death penalty as a sentence in India. In fact, the rarest of the rare doctrine is a product of judicial invention, formulated in order to limit these possibilities. It has often been argued that the Court possibly overreached in evolving that standard when there was nothing to suggesting such standard in any statute, and such ‘amendment’ in any case would require parliamentary approval.

Keeping this mind, to ascertain whether a case falls within the parameters of rarest or rare, the Court has developed a test of aggravating and mitigating circumstances. ‘Aggravating circumstances’ of a case would be those facts which point towards the dangerous and dastardly nature of the crime committed and the circumstances prevailing, while on the other hand, mitigating circumstances would be those which point towards prevailing factors which lower the level of guilt or decrease the level of heinousness of the crime. While determining the aggravating circumstances, relative weight is given to both the criminal and the crime and an identical approach is adhered to for ascertaining the mitigating circumstances. A careful evaluation of aggravating and mitigating circumstances pertaining to both the criminal and crime helps in determining the special reasons for imposing the extreme penalty on a person. The Court decides these matters bearing in mind the purpose of punishment and taking into account all circumstances influencing the degree of severity (mitigating and aggravating circumstances) and, in particular the degree of criminal responsibility.

Aggravating Circumstances

If the principle of ‘rarest of rare’ and the test of aggravating and mitigating circumstances are kept as the premise, understanding the facts of the case, as summed up by the Court, is necessary. Technically, the Supreme Court being a Court of Law (not a court of trial where evidence is recorded), cannot question the facts as recorded by the Special Court. The interpretation of facts and the fairness of the procedure adopted in recording the facts are questions, which can be decided by the Supreme Court. The Court, after studying the facts in totality, in its judgment recorded :

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[i] A sentence is a decree of punishment, which forms the final explicit act of a judge-ruled process. It is to be separated from the guilt of a person, as the sentence is the product of the guilt of a person. In procedural parlance, sentence is stage after the guilt of the person has been established.

[ii]Under Article 72 of the Constitution, the President can grant pardon, and suspend, remit or commute a sentence of death. However, the President does not exercise this power on this own — he has to act on the advice of the Council of Ministers. Once the Supreme Court has finally awarded a convict the death sentence, anybody, including a foreign national, can send a mercy petition with regard to that person to the President’s Office or the MHA.

[iii] The punishment for murder in the Indian Penal Code is mentioned in Section 302 as imprisonment for life or death.

[iv] Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to procedure established by law.


Kanu Agarwal

The author is an Advocate practicing in the Supreme Court and a graduate of the National Law Institute University.