Sentencing – which is a very serious and complex aspect of the criminal justice delivery system and which was before solely within the domain of the courts – has become a ‘public concern’. Photo: Reuters

By Anjana Prakash

When courts abdicate moral authority and sacrifice judicial acumen, other bodies arrogate to themselves the authority to deliver justice on the terms which they justify as the call of society.

The Delhi elections are scheduled for February 8. As usual, political parties are outpacing each other in listing both their future promises and those accomplished. In the midst of this, there is speculation over whether the state will manage to hang the killers of Nirbhaya before the election date. If it does, each of the political parties in the fray will claim credit for having meted justice to the perpetrators of the diabolical crime. It is both sad and ironic that a society should anxiously await an execution without feeling the blood on its hands.
I am reminded of an essay by Albert Camus, the French Nobel prize winning author, on the uselessness of the death penalty while arguing for its abolition. He wrote:
“Punishment, penalising rather than preventing, is a form of revenge: society’s semi arithmetical answer to violation of its primordial law. This answer is as old as man himself, and usually goes by the name of retaliation. He who hurts me must be hurt; who blinds me in one eye must himself lose an eye; who takes a life must die. It is a feeling, and a particularly violent one, which is involved here, not a principle. Retaliation belongs to the order of nature, of instinct, not to the order of law. The law by definition cannot abide by the same rules as nature. If murder is part of man’s nature, the law is not made to imitate or reproduce such nature. We have all known the impulse to retaliate, often to our shame, and we know its power: the power of the primeval forests.
“…Many systems of law regard a premeditated crime as more serious than a crime of pure violence. But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared? If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters.”
On why a human is incapable of judging, he says,
“Unless there is absolute innocence, there can be no supreme judge. Now we have all committed some transgression in our lives, even if this transgression has not put us within the power of the law and has remained an unknown crime: there are no just men, only hearts more or less poor in justice. The mere fact of living permits us to know this, and to add to the sum of our actions a little of the good that might partially compensate for the evil we have brought into the world. This right to live that coincides with the opportunity for reparation is the natural right of every man, even the worst.”
The facts of the case, as I could gather from the 1982 judgment in Harbans Singh vs State of UP and others, is that on May 1, 1975, ( i.e. a year after the amendment in our Code of Criminal procedure by which life sentence became the norm and death sentence an alternative to be awarded for only special reasons), the sessions court Pilibhit sentenced four persons to death – Harbans Singh, Mohinder Singh, Kashmira Singh and Jeeta – for the murder of four persons.
Mohinder Singh died in a police encounter so only three accused remained. On October 20, 1975, the sentence of death of the three was affirmed by the Allahabad high court. Jeeta Singh filed an appeal in the Supreme Court which was dismissed on April 15, 1976, whereas Kashmira Singh filed an appeal from jail and obtained leave on question of sentence. On April 10, 1977, his appeal was partly allowed, and his death sentence was commuted to life. Harbans Singh also filed appeal before Supreme Court from jail, which was dismissed on October 16, 1978 and thereafter review dismissed on May 9, 1980. It appears that even though the registry had noted the fact that Kashmira Singh’s death sentence was commuted to life, this was not brought to the notice of the court when Harbans’s appeal and review were dismissed. He then filed a mercy petition before the president, which was also dismissed on August 22, 1981.
Subsequently, Harbans Singh filed a fresh writ petition before the Supreme Court on the ground that even while the three accused had been sentenced to death by a common judgment, each one had met with a different fate. Kashmira Singh’s sentence was commuted to life. Jeeta Singh, who did not file a review or writ petition in the Supreme Court, was executed on October 6, 1981. Harbans Singh was to be executed on the same day as Jeeta Singh but he filed a writ on which the Supreme Court granted a stay of execution.
When the matter came up for final hearing, the question before the court was whether Harbans Singh should be executed since Jeeta Singh had been hanged, or whether his sentence should be commuted, like Kashmira’s. The court leaned in favour of life and held that it would be unjust not to commute Harbans’s sentence. According to the bench, failure to commute would involve the court as well the authorities concerned in the violation of rudimentary norms governing the administration of justice. It also noted with some anguish that it was unfortunate that the appeal of Harbans Singh came to be dismissed after Kashmira’s commutation of sentence.
Importantly, even while holding that it would not be wrong to commute the sentence, the bench, considering comity between powers of the court and the president, recommended commutation of sentence to the president and stayed the death sentence till the president had taken a call.
I have no means of knowing whether the president reconsidered his view after the reference from the court but what is notable is the court’s respect for human life, without any sound and fury, and manner in which it discharged its responsibility to save the life of a murderer. The court, importantly, believed there should be a just sentence.
What is also notable is the absence of taunting arguments by the public prosecutor that the convict had ample legal assistance and was trying to delay his execution, or that the matter be not referred to the president once again, since his mercy petition had already been dismissed after due consideration.
However, we have come a long way since then and travelled backwards to a primordial stage of a perpetual state of confrontation. In my opinion, this started with the case of Machhi Singh in 1983, when the Supreme Court laid down guidelines for just sentencing and held that the community was also a stakeholder and could sanction the death sentence in the “rarest of rare” cases “when collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise retaining death penalty.”
In this way, sentencing – which is a very serious and complex aspect of the criminal justice delivery system and which was until then solely within the domain of the courts – became a ‘public concern’. Even while we abolished the jury system, we brought in a more dangerous form of jury, which was uninformed, had no knowledge of law and its procedures, and which, believing themselves to be victims, claimed a ‘legitimate’ right to decide how an offender was to be dealt with.
Abdicating its role as an arbiter, the court then started to align with the victim, thereby losing its objectivity. In doing so, it began to undermine its oath to adhere to the rule of law and created multiple victims. Now, even the offender could legitimately claim to be a victim of prejudice with the court succumbing to majoritarianism in sentencing. And in all this, the courts woefully seem to have forgotten that it was because they professed to uphold the Rule of Law that they had a moral authority to judge and bereft of it, only chaos and turmoil would prevail.
Also, it did not foresee that when courts abdicate moral authority and sacrifice judicial acumen, other bodies crop up and arrogate to themselves the authority to deliver justice on the terms which they justify as the call of society. The judiciary thus seems to have fallen into a trap by indirectly legitimising a fraud upon justice. This explains crowds of hoodlums resorting to lynching, police officers bumping off criminals or Anurag Thakur who joins (and exhorts) his supporters to shoot “traitors”. The rot set in when the courts conceded space which was legitimately theirs. This trend can now be arrested only if the courts are willing to assert themselves, and the rule of law.
Anjana Prakash is a former judge of the Patna high court.