Why the Supreme Court must rethink capital punishment

Source: Hindustan Times dated 19.10.2019

-- Gautam Bhatia (Advocate, Supreme Court of India)

It is the only form of punishment where human subjectivity and human error can never be atoned for

Earlier this month, a three-judge bench of the Supreme Court confirmed the death sentence upon an individual who had been convicted of the rape and murder of a two-year old girl. While the circumstances of the crime may trigger a natural reaction that the punishment was justified, a closer look at the judgment reveals that there are ongoing structural problems with the administration of capital punishment in the country, which raise questions about its continued retention on the statute books.

First, the conviction was based on circumstantial evidence. Circumstantial evidence, by its very nature, requires the drawing of inferences to connect the evidence in question to a set of facts. For example, the evidence that an individual was “last seen” with a person who was murdered is “circumstantial evidence” that that individual was, indeed, the murderer. Because of its very character, Indian courts have historically held that while circumstantial evidence can, in some cases, sustain a conviction, it should not ordinarily be the basis for imposing the death penalty. This was specifically pointed out by Justice RS Reddy, who dissented from the confirmation of the death penalty in this case.

The majority judges, however, took the view that there was no connection between the quality of the evidence (circumstantial) and the imposition of the death penalty. There, is, however, a very real connection — imposing the death penalty itself is based upon absolute certainty – because out of all the punishments, it is the death penalty alone that offers no possibility for future correction, if it turns out that the conviction was a mistake. People who have been imprisoned can be released, and potentially compensated if it turns out, years later, that the conviction was wrongful; nothing, however, can bring the dead back to life. It is for this reason that the absolute certainty involved in administering the death penalty sits ill at ease with the fact that in the real world, nothing is ever certain – and sits even more ill at ease with a conviction based on circumstantial evidence.

Second, one of the cardinal principles that has been evolved over time by the Indian courts, is that the death penalty is to be awarded taking into account not only the nature of the crime, but also, the character of the convict. Given its irreversible character, the death penalty is to be imposed only when there is no possibility of reformation. To establish this, courts have laid down a number of indicative factors, including mitigation reports that track a convict’s behaviour in jail, to judge whether or not he or she is capable of reform. The majority judgment, however, gives this short shrift, dealing only with the attitude of the convict during the course of the trial, in a single short paragraph. On the contrary, as Justice Reddy points out in his dissent, the convict’s age as well as the lack of any prior convictions or crimes all point to the fact that the possibility of reform cannot entirely be ruled out.

And finally, the very fact of a dissent in this case — where two judges believed that the death penalty ought to have been imposed, and one did not — points to the inherent subjectivity that comes with such cases. For example, the convict’s socio-economic status (he belonged to the below-poverty-line section of society) weighed with Justice Reddy, but did not weigh with the majority. In light of the fact that the administration of the death penalty has been traditionally skewed on the basis of socio-economic status, this is highly significant.

Admittedly, this problem is not unique to the imposition of the death penalty, but extends to sentencing and punishment in general. However, what is unique about the death penalty is precisely its irreversible character: Alone among all punishments, it is final and undoable. Given that, and given the kind of subjectivity that the Supreme Court’s judgment reveals, there are surely good grounds to rethink the only form of punishment where human subjectivity and human error can never be atoned for.