Home 2019 Death Penalty: From the perspective of the Constitution, Police, Courts and Executive

Death Penalty: From the perspective of the Constitution, Police, Courts and Executive

by Yug Mohit Chaudhry
Death Penalty: From the perspective of the Constitution, Police, Courts and Executive

First Republic Day parade on 1st October 1950. Image source: Link

Why should we abolish the Death Penalty? What is wrong with the Death Penalty? When the United States first struck down the death penalty in Furman v. Georgia, Justice Marshall said that if people only knew how the Death penalty was actually inflicted they would find it shocking, unjust and unpardonable.  There are many reasons why you may oppose the Death Penalty. You may believe that it’s wrong to take life.  You may feel that life is something that is God-given, it can only be taken by God. Or if you are more secular-minded, you may believe that there are limits to the state’s power.  Can the state take a life? In the social contract, is that something we allow the state to do? You may believe that the Death Penalty is error-prone, it is far from fallible. You may believe it is irreversible, unlike other punishments. You may believe it is arbitrarily imposed. The Supreme Court has now restricted the Death Penalty to the rarest of rare cases. And even after the Supreme Court inflicts the Death Penalty, many of those cases are subsequently commuted by the government. 


When the United States first struck down the death penalty in Furman v. Georgia, Justice Marshall said that if people only knew how the Death penalty was actually inflicted they would find it shocking, unjust and unpardonable.

We have 35,000 murders a year; 3 people are selected to hang from those 35,000. It’s almost as arbitrary as being struck by lightning. There can be absolutely no rational criteria to select those 3 from 35,000 other people in the same position. 

You may believe that the death penalty is biased against the poor and the marginalised.

You may believe that the Death Penalty makes no sense. If you’re trying to deter murder, how can you deter murder by the cruelest and cold-blooded of all murders; something more premeditated than the murderer could have ever done! You may believe that it sets a poor example. When the state kills, surely at some level, the state functionaries believe it is ok to kill. Hence, in countries that do have capital punishment, we see a greater incidence of extra-judicial killings – by the police, by the military, we see a greater amount of torture in custody. And finally, you may say that the Law Commission has recommended its abolition. These are some reasons one may possibly oppose the death penalty, of course, there are more. 

But I want to tell you a little bit about what Justice Marshall meant when he said that people, if they only found out how the Death Penalty is actually imposed they would find it shocking, unjust and unacceptable.

There are four limbs on which our criminal justice system rests, and which eventually results in an execution. I’m going to tell you a little bit about each of those four limbs:  the Police, the Judiciary, the Government, and finally, the Legal Aid system. 


If you’re trying to deter murder, how can you deter murder by the cruelest and cold-blooded of all murders; something more premeditated than the murderer could have ever done!

Now I don’t think I need to stress the point that we have a notoriously corrupt police force that we cannot really rely on. They’re corrupt, they’re inefficient, they’re over-worked, they’re underpaid, they’re under-trained, and they work in the most appalling conditions under intense pressure, they’re also criminalised.  Yet we are dependent on the police for the functioning of the criminal justice system, without them it simply wouldn’t work. So even though they’re dishonest, we have to rely on them perforce, we have no other alternative for the gathering of evidence and launching of prosecution. But to say that is one thing, and then to say that will we turn a blind eye to all this even to the extent of snuffing out life, calling someone a terrorist, having his family branded, and putting him through the most excruciating torture and agony before he is finally killed, on the say-so of the police, on the evidence collected by them? 


 It’s only the most serious crimes that attract the Death Penalty. Today it would be terrorism, child rape and murder.  These crimes are prepared and committed in secrecy. Therefore, the only evidence possibly available is circumstantial evidence.

 It’s only the most serious crimes that attract the Death Penalty. Today it would be terrorism, child rape and murder.  These crimes are prepared and committed in secrecy. Therefore, the only evidence possibly available is circumstantial evidence. So in most terror cases, and in most child rape or murder, the evidence is entirely circumstantial.  What does circumstantial evidence mean? Direct evidence is that of an eye-witness; circumstantial evidence is pieces of circumstances gathered by the police, which they say implicate the accused. For example, the fact that the accused may have been last seen with the victim, the victim may have been last seen alive with the accused, the accused may have a motive to kill the victim, the victim’s blood may have been found on the accused’s clothes, the murder weapon may have been found in the accused’s house, and the accused’s semen may have been found on the victim’s clothes; or, bomb-making equipment, and perhaps even some RDX, may have been found in the accused’s house. These are all pieces of circumstantial evidence. As you can see from the list, it’s exceedingly easy to fabricate circumstantial evidence. As a defence lawyer, I often tell the judge that this knife has been planted on the accused, these are the circumstances which show that – knives are freely available in the market, one can easily buy one and plant it in the accused’s house, just like drugs or any counterfeit currency. But when it comes to RDX, this is an argument that’s not easily made; where does the police get RDX from, the judge might ask, RDX is not freely available? So if the police claim that RDX is found in the accused’s home, it becomes a problem.  And it is such a problem that it would eventually lead the accused to the gallows on this piece of evidence alone. 

 You have an extremely heinous crime that has been committed. There is a strong desire in the public to find the perpetrators and the police work under all these constraints with very poor skills, very poor equipment, and under-staffed. They have to find someone whom they can book to close this case. I’m going to just give you a few examples.  


The judge has to deliver a verdict which will instill confidence in the judicial system. Also, even the evidence of these heinous crimes – the photographs of mangled mutilated bodies, the victims coming and crying in court, numb the senses, provoke revulsion, in any human being. And that same thing happens to the judge, he too is a human being, his judicial senses get numbed. And he too then wants to find a way of convicting those before him because he has to ensure that somebody is made to pay.

On the 11th June 2006, a series of train blasts went off across Bombay on the Western suburban line. 189 people were killed within half an hour. After some time, the police arrested 13 boys who they claimed were all members of SIMI, and said that they have committed the blasts. They produced them for remand repeatedly before the magistrate and they had to justify why they should not be granted bail.  In those remand applications, signed by the investigating officer, the police repeatedly stated that they have seized the phones of these 13 boys and had them forensically analysed, and obtained the call data records, and have found that these 13 boys were not only in touch with each other on the day, but were in touch with the Lashkar-e-Taiba in Pakistan, and the tower locations show 7 or 8 of these 13 boys – who were the planters of the bombs in those trains from Churchgate station -to be at Churchgate station before the time the trains left Churchgate station. They said they had this incontrovertible forensic evidence. In the face of such averment, there was not a judge in the land who would give these accused bail. One would have thought in a case of circumstantial evidence when you have got such convincing proof, it would surely form the mainstay of your prosecution. So when the charge-sheet was filed, it came as a big surprise that this piece of evidence was not part of the charge-sheet. From the date that the charge-sheet was filed, these 13 boys periodically made applications asking for the police to be directed to produce these call data records. They made 6 applications over these 6 years. In response to each, the public prosecutor representing the police said we are not relying on these call data records so we will not produce them or give them to the prisoners. The prisoners said that the court should call for them because it’s in the interest of justice for these call data records to come because they will show that we were elsewhere at the time. They said these call data records would furnish irrefutable evidence of their innocence. They also said in writing that if the court did not order the production of these call data records the police would tamper and destroy them because it showed their innocence. As is often the case with terror trials, there was a great deal of pressure on the judge. He has to deliver a verdict which will instill confidence in the judicial system. Also, even the evidence of these heinous crimes – the photographs of mangled mutilated bodies, the victims coming and crying in court, numb the senses, provoke revulsion, in any human being. And that same thing happens to the judge, he too is a human being, his judicial senses get numbed. And he too then wants to find a way of convicting those before him because he has to ensure that somebody is made to pay. He’s under immense media pressure, he’s under immense public pressure. And consequently, this numbing of the judicial sense, judges become rubber-stamps of the prosecution and the government. ‘National security’ has become a kind of mantra which silences scrutiny, we see it a lot in terror trials. 

Two separate wings of the Mumbai police were investigating this crime: the Anti-Terror Squad, under Raghuvanshi and the Crime Branch, under the then Joint Commissioner Rakesh Maria. Because of their rivalry, they were following their own separate paths. The ATS, filed a charge-sheet saying that it was these 13 boys from SIMI, in connivance with the Lashkar-e-Taiba, who had perpetrated these blasts, and the prosecution was launched. A few months later, in the same court, the Crime Branch filed a charge-sheet against 11 persons from the Indian Mujahideen saying it is they who had committed these blasts. That trial is yet to begin; whereas the trial on the basis of the charge-sheet filed by the ATS has been completed and 5 people have been sentenced to Death. And the judge, sitting in judgement, knows full well that there is another charge-sheet filed in his own court-room, implicating a different group of people, he pretends there’s no such evidence, because, he says, I have to only look at the evidence which is before me in this case,  that is a different case.

When an act such as this has been committed, you want to make sure you have got the right person because justice requires it and our own safety requires it because if you get a scapegoat, those who did it can do it again and again.

So the judge rejected these 6 applications over 6 years. Finally, we moved the High Court and the High Court said what rubbish, of course, you have to give it right now. The Advocate General of the State of Maharashtra appeared in the matter, and he said ‘I’ll take instructions and come next week’. Next week, he filed an affidavit in the court, signed by the investigating officer, saying that they had destroyed the call records. This is the police in terror cases. Now just think of this. When an act such as this has been committed, you want to make sure you have got the right person because justice requires it and our own safety requires it because if you get a scapegoat, those who did it can do it again and again. 

In the first Malegaon blast, in 2006, bombs went off outside a madrasa and a mosque. Malegaon is a predominantly Muslim town. The location of the bombs – outside the mosques and the madrasa, and the timing – on the night of Shab-e-Barat, when people go to the graveyard in the mosque to pray for their ancestors and their family members who are dead–would suggest that the victims intended for the blast were Muslims.  Now this case was investigated by ACP Shengal who filed a charge-sheet against 10-11 Muslim boys he had arrested, and said he had got evidence of confessions, RDX was found in their homes, there was a witness who overheard those 10 boys sitting together in a room hatching the conspiracy to commit these blasts, and, what’s more, one of these 10 had decided to turn approver, and give evidence against the others. So all had confessed, but one of them was willing to give evidence as a prosecution witness.

These boys remained in custody for about 8 years. The trial had not started because the evidence was too flimsy, and the prosecution too scared to begin the trial. The case was transferred to the CBI. The CBI rubber-stamped this entire investigation and said it is correct, it’s these 10 boys who have done it, all this evidence is genuine. Meanwhile, the NIA was investigating the Samjhauta Express blasts and arrested Swami Aseemanand and they discovered evidence that this blast in Malegaon was the work of Aseemanand and his associates. The Central government transferred the investigation to the NIA, which filed a charge-sheet with a point-by-point rebuttal and refutation of every piece of evidence collected by Shengal. The NIA charge-sheet says this evidence is forged, fabricated and false. One of the witnesses to the seizure of RDX was, in fact, conducting another panchnama for the same police at another place on the same day at the same time. So not only was there documentary evidence to show that this witness was elsewhere, but it was documentary evidence from the police itself. 

These 10 boys were then exonerated. It is a capital crime in itself to fabricate evidence in such a serious case. But not even departmental proceedings were initiated against Shengal. 

It’s in utterly heinous cases that the fabrication of evidence becomes so desperate and so rampant. And there is this fear and there is this hope that this magic mantra ‘national security’ will dull all questions and inquiries and nothing further will be necessary.

This is not to say that these crimes have not been committed or that in every case the persons arrested are falsely implicated. But this is just to say that we simply cannot take the police’s word for it alone, that’s one. And the second, are we not even going to introduce a measure of caution, a safety valve, something that will allow us to retrace our steps, or are we going to go to the extent of taking a man’s life on the basis of this evidence?

Look at every serious terror case till today. Begin with Indira Gandhi, Indira Gandhi’s assassination. There were two shooters, but 2 other people were also convicted, Balbir and Kehar. Balbir Singh was a guard, also placed at Indira Gandhi’s house, but he was not on her immediate detail the way the two shooters were. Shortly after her assassination, he was arrested. Now the Supreme Court judgment records these following facts.  It records that he was kept in illegal detention and never produced before a magistrate, at Yamuna Velodrome, for 10 days. He was released on the 10th day. The Supreme Court judgement further records that on the 12th or 13th day, he was re-arrested by the police at ISBT bus terminal, boarding a bus with a full confession in his pocket, in expanded notation. A former police officer, mind you! The Supreme Court said this evidence is an insult to our intelligence. But it was the same evidence which passed muster at the Trial Court that sentenced Balbir to Death and in the High Court, which upheld that Death sentence. 

Rajiv Gandhi assassination case, 26 people arrested by the police, put on trial, all 26 convicted and sentenced to Death. Because it was a TADA case, the first appeal led to the Supreme Court. In the very first appeal, 19 out of 26 acquitted, for what the Supreme Court called an embarrassing lack of evidence. The extent to which evidence is manufactured is seen on a daily basis in the trial courts. 


Between 1995 and 2010, according to the Supreme Court itself, 14 out of 60 death penalties inflicted by the Supreme Court were erroneous, that is around 25%.

Now we come to the second leg of this criminal justice system, the judiciary. The judiciary, exalted as it may be, is as error-prone as you or I. Between 1995 and 2010, according to the Supreme Court itself, 14 out of 60 death penalties inflicted by the Supreme Court were erroneous, that is around 25%.  How does this happen? It’s the same thing again; heinous crime, absolutely revolting the senses, numbing judicial scrutiny, and of course sometimes the magic mantra. After the Supreme Court in Bachan Singh in 1980 laid down the principle that while deciding whether or not somebody should get the Death Penalty, you have to look at both the crime and the criminal; you cannot only look at the crime, you have to look at the criminal as well, because it is him you are sentencing to death; so you have to see the mitigating circumstances surrounding the person. After they said that in 1980,     it became the law of the land. It was a bench of five judges, constitution bench, it was binding on all subsequent benches. 

And yet, in ’96, two judges of the Supreme Court, faced with an extremely heinous crime,  said in heinous crimes we don’t need to look at mitigating circumstances, directly contrary the judgment binding on them. So this was the proposition in Ravji’s case, that in heinous crimes one doesn’t really need to look at mitigating circumstances. Ravji’s case was followed by 9 other cases in which 11 or 12 people were sentenced to death, Ravji’s case cited as a precedent again and again. Ravji himself, sentenced to Death by the Supreme Court on the basis of this erroneous principle, was executed, his mercy petition dismissed in 5 days. Ravji was followed by Surja Ram. Finally, in 2009 the Supreme Court woke up and said ‘oh my god this is contrary to Bachan Singh. All these judgements are wrong’. But what of Ravji? He was already dead. What of Surja Ram? Who bothered, he was poor. Not only did the police fail him, not only did the judiciary fail him, the final safety valve in the system, the executive, the mercy jurisdiction, which is meant to cure error, which is the final stop-gap before the gallows, that failed him. 


It has reached a stage where in about 7 judgements between 2009 to 2013, the Supreme Court, after a great deal of soul-searching said that our Death Penalty jurisprudence is flawed. They said that it has become subjective, it has become arbitrary, it has become judge-centric – what one judge finds to be rarest of rare is quite different from what another. And so long as this is the case, this Death Penalty jurisprudence, the Supreme Court said, violates the guarantee of Article 14, which promises equality before law.

Do you think that that elaborate confession that Balbir Singh was carrying in his pocket after being kept in Yamuna Velodrome for 10 days was genuine? A full confession, in essay format! Where did that piece of paper with that confession come from? And then you ask the accused in court to disprove it. A man in custody, fighting with both hands tied behind his back, with a lawyer who’s paid two thousand rupees to do the case. An accused who doesn’t understand the language of the law, forget the English language in which the law is written. You are asking him to defend himself against the whole might of the state and prove that this evidence is fabricated?! Are you ever going to get that proof? It’s in very few cases that it’s actually ever come out that this evidence was fabricated.

In determining what is the rarest of the rare case, there are really no guidelines and no criteria. It has reached a stage where in about 7 judgements between 2009 to 2013, the Supreme Court, after a great deal of soul-searching said that our Death Penalty jurisprudence is flawed. They said that it has become subjective, it has become arbitrary, it has become judge-centric – what one judge finds to be rarest of rare is quite different from what another. And so long as this is the case, this Death Penalty jurisprudence, the Supreme Court said, violates the guarantee of Article 14, which promises equality before law. If like cases cannot be treated alike, article 14 is violated, there is no equality. Now when the Supreme Court is itself telling you that we have committed error, in at least 14 out of 60 cases – 2 of which are now too late to do anything about; when the Supreme Court is itself telling you that our Death Penalty jurisprudence is flawed; and when your own common sense tells you that it’s impossible to select 3 out of 35,000 in any rational, logical way, how then can you allow the judiciary to decide who will live and who will die, and that too on the basis of evidence presented by the police ?

 The third leg of the Criminal Justice system is the executive.  When a person is sentenced to Death by the Supreme Court, the law sanctions the execution of that individual; it does not necessitate it, it merely allows it. A judgement of the Supreme Court upholding the Death Penalty only allows the government to execute that person, it does not make it mandatory, because the law gives the final word to the government.  Constitutional provisions empower the Governor and the President with clemency, and it’s the government that advises the Governor or the President, and the Governor or President is bound by the advice given by the government on these mercy petitions. 

After a person is sentenced to Death, this safety valve has to be there. It’s there in almost every country which has the Death Penalty on its statute books.  This is the final safeguard against error. We know that most people sentenced to Death are poor, they have very poor lawyers, if any at all, and therefore somebody must conscientiously scrutinise the case papers before finally hanging the poor soul, and that is why the mercy jurisdiction exists. But Ravji – 3 days, Surjaram – 14 days, mercy petitions dismissed. Where was the scrutiny? There are detailed guidelines as to how a mercy petition has to be decided, what documents have to be read. There is an alarmingly large number of cases in which the courts have held that the government did not read these documents. 


The care and scrutiny and diligence with which the government is expected to even decide a hawking application, not even that level of scrutiny is exercised in deciding mercy petitions.

Praveen Kumar from Karnataka had been sentenced to Death by the Supreme Court, he filed a mercy petition before the President; the Central government asked the State government to send them the Trial court record, the High Court judgement. The State Government sent some papers to the Central Government. The Central government wrote a letter to the State government saying, look, you know, you’ve sent it to us in Kannada, please send us an English translation. The State government did not send; they sent one more reminder, State Government ignored it; the Central government sent a second reminder, again the State Government ignored it. Finally, the Central government got fed up and said we’ll decide the mercy petition without these documents. They rejected the mercy petition. When we challenged this in court, we found that the documents sent by the State government to the Central government were in English, only the cover page was in Kannada, they had not bothered to open the documents. The care and scrutiny and diligence with which the government is expected to even decide a hawking application, not even that level of scrutiny is exercised in deciding mercy petitions.   

I have seen cases where they have sought the opinion of the jailor about whether or not this man should be executed, the jailor says he has completely reformed I don’t think you should execute him, and the President is not even informed about that recommendation. There have been cases where the prisoner has gone completely stark raving mad because of the conditions on Death Row – solitary confinement for days on end, years on end, under the shadow of the noose —  has been certified to be mad and unfit for execution, the government is not informed. It’s utterly shocking…the callousness with which the central government decides mercy petitions. So there’s that one aspect, what is the level of scrutiny that is actually going to take place – either at the judicial level or at the executive level – before we hang somebody in our names?


Every time a heinous rape takes place the government says we’ll execute the rapist; this just distracts attention from them not doing anything about the real problem, and that’s how the Death Penalty is actually used.

There’s another aspect, how is the Death Penalty actually being used? Is it really being used as a tool for crime control?  Is the government killing people in order to control crime? Is there any evidence that it controls crime? If the government really wanted to control crime, surely they would implement some of Justice Verma’s recommendations, they’d put some more lights on the road, they’d have more CCTVs, they’d sensitise the police, but none of those recommendations are followed. Every time a heinous rape takes place the government says we’ll execute the rapist; this just distracts attention from them not doing anything about the real problem, and that’s how the Death Penalty is actually used. It is used as a kind of symbol of state power, and an attempt at distracting attention from the real issues. 

It is also used for political purposes. After Nirbhaya, that ghastly crime in Delhi occurred, there were protests in Delhi, and the government of India felt deeply threatened.  The Home Minister made a statement that he would never ever commute the death sentence of a rapist. So, they had about 20-30 mercy petitions pending before them, they cherry-picked ones, from persons who had been convicted of crimes against women, and said we’ll reject all of these. This is a case of political expediency. 

India retains the death penalty on the statute books and tells the UN that in every case we follow due procedures.  Let’s look at Kasab, let’s look at Afzal Guru; under the law, they were sentenced, they would deserve to be executed, no doubt about it. Afzal Guru’s mercy petition, after being kept pending for 6 years was rejected, he was hanged the next day in the morning; rules which require that his family be allowed a last meeting were violated, rules which require that his family be informed were violated. He had a right to access the courts. As you know, delaying disposing of mercy petition is one of the grounds for commuting a Death sentence. Afzal Guru had 6 year’s delay, he had a right to challenge the rejection of his mercy petition, he required a bit of time for that, he had required access to lawyers for that. But what did they do? They dismissed the mercy petition in the evening and hanged him in the morning. They did the same with Kasab. The government of the day, by law established, afraid of access to the law courts, afraid of granting access to the law courts. This is how we execute the Death Penalty, on our most notorious terrorists.


In Bombay, a lawyer is paid Rs. 900 for a murder trial, which could last over one or two years. For a murder appeal in the High Court, he is paid 2,000, the records will be voluminous. People sentenced to Death – are all poor, but they’re also very often marginalised, Dalits or Muslims.

And finally the Legal Aid system. In Bombay, a lawyer is paid Rs. 900 for a murder trial, which could last over one or two years. For a murder appeal in the High Court, he is paid 2,000, the records will be voluminous. People sentenced to Death – are all poor, but they’re also very often marginalised, Dalits or Muslims.  At least 7 out of 10 Death sentences, are given to people represented on legal aid. With honourable exceptions, who are the people on legal aid panels? Lawyers who could not make a living out of their own private practise had to then get clients from legal aid. You pay them Rs. 2000 an appeal which has got about 20 volumes, Death Penalty case, what do you expect? Are we really so surprised that these cases are so error-ridden? Crime is the act committed by the prisoner for which he’s being killed. That’s the theory. But surely he’s being killed because he’s poor because had he got a good lawyer, he would never have been killed. At least 50% of the records of Death Penalty cases that I have scrutinised would have been acquitted had they had proper legal representation.

 For punishment to be morally acceptable it must serve a legitimate purpose, and be proportionate to its needs. Does the Death Penalty pass this test? What legitimate purpose does it serve?  What are the purposes of punishment, classically? Reformation and rehabilitation. Death penalty extinguishes life. And here it denies an essential human quality — the possibility of change It says no reformation or rehabilitation is possible of this person. 

The second purpose of punishment is deterrence, the specific deterrence of the individual who committed the crime, and the general deterrence of like-minded people who may be wanting to commit the same crime.  For deterrence to work three things have to be there – celerity – which is speed, severity and certainty of punishment. If even one of the three is missing, deterrence will not work. Suppose you have a very severe punishment for theft, so it meets the severe test, say the Death penalty for theft. Suppose you do it quickly, you meet the celerity test. But suppose it’s not certain you’ll catch the guy at all, or that he would be convicted, the certainty test is not met. And then, the like-minded person wanting to commit such an offence will say pakde jaayegaa tho dekha jaayega naa, tab dekhenge, abhi kya hai.  Similarly, if the celerity test is not met, jab hoga tab dekhengey naa, bees saal lagengey,bees saal kisne dekha hai, main pehle hi mar jaayegaa. If any of these three is not met, deterrence serves no purpose. 

 The question before us is not whether Death Penalty deters, to some extent it does. The question is – does the Death Penalty deter more than life imprisonment, which is the alternative? And here, all the studies show that the Death Penalty has no greater deterrent effect than life imprisonment. There is absolutely no evidence that the Death Penalty is any greater a deterrent than the life sentence. And then finally, we have retribution, as a third rationale of punishment. We kill somebody who has killed somebody to show that killing is wrong. That simply makes no sense. 

Why then do we have the Death Penalty? It’s the ultimate symbol of state power. 

I suggest to you, ladies and gentlemen, these are all good reasons to abolish the Death Penalty.

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