Justice, if viewed as an end result is a subjective concept. For some criminal justice systems justice means a judicial process which metes out a proper decision and tries to harmonize at its best. For other criminal justice systems, it may lie in providing ‘instant justice’ be it by State machinery or the death penalty meted out to the convict instantly. Gravest punishments are its prime focus. Hence, the subjectivity lies in the consequence which may be justice for some and may not be for others.
People generally are concerned with the ‘end-result’ of the criminal justice system when they discuss individual cases. The common notion becomes that if the accused has committed the alleged heinous crimes then he/she should suffer indefinitely. This element of “suffering” is justice for us. India has been witnessing a call for a “suffering” outcome in case the criminal is convicted of a heinous crime. This has been observed since the unfortunate Nirbhaya case. The perpetrators of the crime have been given the death sentence. And people are “satisfied” with the same. They celebrate, missing the point that the victim’s parents are still fighting in the Supreme Court demanding that the death sentence be meted out immediately. The people forget that the victim’s parents are still crying for justice. Ultimately they forget that death sentence in one or two individual cases would not solve the complex problem of the growing challenges in our society. One of which includes- the growing blood-thirst for ‘instant justice’ which may be meted out by the State or by non-State actors too on mere suspicion. This leads to encouragement of mob justice which ultimately erases the element being demanded by society-JUSTICE.
This article is an attempt to understand the concepts in the Indian perspective and ultimately conclude whether such demands would strengthen the criminal justice system.
Crime and Punishment
The etymological meaning of crime (crimen in the Latin language) means ‘a cry for distress’[i]. In the Modern sense, crime has come to mean an act or omission which is punishable by law. It includes both the physical act (actus reus) and the mental element (mens rea).
The object of any punishment depends upon the category. If it falls under the deterrent category, the object to be achieved would be completely different from the punishment which focuses upon retribution or revenge. There are various types of punishments which have now and then been adopted by different criminal justice systems. The most widely used ones are as follows:
Deterrent type: This type focuses upon the domino effect of punishing the guilty. In a way, it would deter others in committing the same crime. The death penalty has been always advocated as a way to deter heinous crimes though there is no scientific proof of the same.
Retributive type: It can be seen as an extension of deterrent type as well. This follows the ‘an eye for an eye’ principle. It works on the philosophy that an offender should go through the same ordeal as the victim of the crime. This can be seen in the demand for castration of sex-offenders. Various countries even allow the same for example Indonesia allows castration of child rapists.
Preventive type: This is a digression as the whole objective is to uproot criminality and not the criminal as such. The focus shifts on prevention rather than vengeance. Sending a criminal to prison is seen as prevention only to stop the criminal from anti-social activities. This is because crime is against society and a criminal is a threat to society.
Reformative type: A newly opted theory is to reform most of the criminals if not all. A humane approach, it tries to rehabilitate rather than marginalize. It condemns all kinds of corporal punishments. Death penalty abolitionists support reformation and not retribution. The people who support the death penalty criticize reformation as an inefficient approach. The only weakness observed is its inefficiency to rehabilitate hardened criminals.
It can be surmised that the most important objective of punishment is to abate crime in society. Hence, deterrence can be said to be the ultimate objective of the imposition of punishment. The penultimate or secondary concern is the rehabilitation of the criminal. The only aspect where the functionality of punishment becomes obscure is the victim.
Death penalty as the debate-The debate in India started with the Courts when the constitutionality of the death penalty was challenged[ii]and it was held to be constitutional. Though the issue in the case discussed the discretionary powers of the judges it still paved the way to a discussion on the arbitrary nature and the absence of guiding principles. After India acceded to the ICCPR, the angle of humanity was also added. It was seen as a cruel form of punishment. Another big development was reasonability. The magnitude and the seriousness of the crime committed determined the degree of punishment.[iii] With this, the imposition was restricted to crimes against the State and the public’s interest.[iv]
Against this backdrop, the most landmark judgment[v] which made the death penalty the exception rather than the rule came into being. The constitutionality of the punishment was again challenged in this case. It opened the debate between the abolitionists and the supporters and made it more vehement. The abolitionists challenged its irreversibility, its inhuman nature and its inefficiency. The arbitrariness and the faulty procedure under Section 354 (3)[vi] of the Code of Criminal Procedure were also challenged.
Though the judges negative all of the arguments and emphasized on the requirement of deterrence it framed a list of certain mitigating factors and also the requirement of following a pre-sentencing hearing.[vii] Hence, the death penalty became an exception and opened the doors for the abolitionists to strengthen their position on its obsoleteness and inefficacy. Ultimately, the Law Commission also conceded abolition and preserved the imposition of the death penalty in terror cases only. It termed the imposition as ‘arbitrary’.[viii] This current development has shifted the focus on the weaknesses of the death penalty and intensified the pressure on the legislature to either amend and term the death penalty as obsolete or preserve and uphold it.
Principle of rarest of rare: The rarest of rare principle has been the topic of discussion for the legal fraternity in India for years. This is also important as the principle makes the death penalty only an exception rather than the rule while sentencing has to be decided. Rarest of rare acts as the support while the judge decides the sentence. It makes the criminal justice workable and in some instances logical as well. But how well is this principle being followed? For this, a string of judgments by the Supreme Court and other courts provide imagery of how well this principle has been workable and followed.
The most important case which defined or in a way provided categories, where the death penalty was to be imposed, was in the case of Rajendra Prasad[ix]. This judgment coincided with the recent Law Commission suggestion of imposing the death penalty only in cases of terrorism. The judgment favoured the death penalty only when the security of the State, public order and interests of the general public compelled such a situation. What was generally stated in the judgment was made specific in the Law Commission report. The ‘rarest of rare’ principle was as such not discussed but, by specifying categories the death sentence was made rare.
But this categorization was not accepted in Bachan Singh[x]. It discussed the procedure as laid down in the Criminal Procedure Code, 1973. These sections made it mandatory to sentence keeping in mind the context i.e. the crime and the criminal. Aggravating and mitigating factors were also discussed which were accepted by the Court. These factors did bear importance while sentencing has to be decided. It was in this case that the principle of rarest of rare was mentioned as the guiding principle while the Court had to decide on the death sentence of a criminal. Hence, in this case, the foundation of rarest of rare principle was laid down.
Is this workable principle uniformly followed? : The answer is not simple as this principle has many complexities. Being based on subjectivity, the practice of taking an objective view is difficult. One judge might term the circumstance as rarest of rare, the other judge might not concur with this view. Also, in various judgments, the mitigating circumstances are viewed and in others, they are not even counted. This was also highlighted in a judgment by the Supreme Court where the sentencing process was discussed as a whole in the context of the Bachan Singh case. Some very important points as highlighted in the judgment were as follows:
· Pre-sentence hearing and special reasons under Section 354 (3) and Section 235 (2) of Criminal Procedure Code, 1973 are mandatory to be complied with.
· The nature of information which has to be culled out from this recording should try and inculcate aspects relating to nature, motive, the impact of crime, the culpability of convicts etc.
· The ‘rarest of rare’ principle puts a wide embargo on the award of the death penalty which according to this principle can only be imposed where it is satisfactorily proved that: a) The crime is rarest of a rare case and b) Life imprisonment is absolutely inadequate.
Despite these factors, the Court referred to another case[xi] which stated that the background of the criminal is not to be considered. Though this was per incuriam as it was against the rule aid down by Bachan Singh, there were consequent cases which did not consider the socio-economic background at all as it was a heinous offence. The Court disagreed on applying the rule differently in case it was a heinous crime. The rule which was laid down and the procedure have to still be followed. In conclusion, this case highlighted the arbitrariness which was involved in the application of the rarest of rare cases. Adding to this, the Court also observed that as the Constitution mandated the judges to follow the principles of natural justice, public opinion could not be taken into consideration while deciding a matter as sensitive as the death penalty. In this way, the judgment tried to eliminate bias and restricted its interpretation within Bachan Singh’s case.
Still, there are many cases which do not follow the principle at all or do not analyze the mitigating and the aggravating factors. Arbitrariness and lack of uniformity in the application of the rule makes death penalty imposition in India very complex.
Does death penalty help the criminal administration?-There are certain in-built concerns which point to the fact that death penalty is anachronistic in the 21st century India. The reasons have been enumerated as below:
· With the advancement in the legal world and in the field of criminology, the death penalty is incongruous. India now, follows the reformatory approach. Also, ethically it is contradictory as it would only promote retribution and revenge.
· There is no scientific evidence to support the death penalty’s efficacy in abatement of crime rates. Crimes are still increasing and death penalty has still been retained. This strengthens the argument that India should not retain this punishment.
· The rarest of rare principle has been used arbitrarily. In some cases death penalty is given and in some cases, irrespective of the fact that the circumstances might have been the same, the death penalty was not given. In the case of offences committed by many people, the trend of imposing the death penalty on an accused and life-imprisonment to a co-accused was seen as discriminatory.
· The sensationalizing of crimes and media’s criminology has also affected the understanding of common man and the society. They still view that death penalty is effective, oblivious to the fact the death penalty only serves the State’s superiority over its citizens and nothing else. It does not cater to anything substantial.
· Various factors like poverty can affect the chances of a person seeking pardon or appeal. This makes the death penalty more arbitrary.
· India being a signatory to ICCPR has to progress toward the path to discontinue the imposition of the death penalty. More than 100 countries have discontinued with the death penalty. It is time that India also abolishes the same.
Last but not the least is that the victim should feel that justice has been done. The victim/ victim’s family should feel that justice has been delivered to them. Convictions under death penalty and their executions take a long time as the legal route from appeals to the mercy petitions are open where the technicalities of the case are considered.
‘INSTANT JUSTICE’: With the death penalty being an arbitrary and a long-worn approach to punishments, it is obvious that the people’s faith on the criminal administration is to be that of impatience and disbelief in the system. Hence, at times the justice is taken in its own hands be it by the people or the police. Extra-judicial killings are not well placed in a criminal justice system which is governed by the rule of law. Hence, lot of controversies surround if such killings and fake encounters hit the news especially in India. This ‘instant justice’ has been ‘validated’ in certain cases as provided by the Statutes. For example the Armed Forces Special Powers Act and Private defence by a police officer. Still, such killings are scrutinized and not seen as a very good sign in a country which has constitutional values followed by each and every institution.
At present the situation in India regarding extra-judicial killings has gained more traction. Be it the internet shutdowns all over the country, be it the suppression by the police authorities of the students’ movement protesting against Citizenship Amendment Act or be it the complete shutdown in Jammu-Kashmir after the removal of Article 370, the role of the police has come under the scanner and has been criticized all over the world. In January 2019[xii], UN Human Rights Experts expressed alarm on the grave situation of extra-judicial killings in Uttar Pradesh. The majority of the victims according to the Experts belonged to a special class and community and was those who could not afford legal aid as well.[xiii]
Certain guidelines had been issued by the Supreme Court in such deaths caused by the police officer. The same was to be scrutinized by an independent agency. The guidelines have been reproduced as follows[xiv]:
“1. Whenever the respondents-police are on the receipt of intelligence or a tip-off about the criminal movements and activities pertaining to the commission of grave crimes, it shall be entered into a case diary. If the receiving authority is the police officer of a particular police station, the relevant entry has to be made in the General diary and if the receiving authority is the higher police officer, the relevant entry to the said effect has to be made by a separate diary kept and provided therefor and then pursue further in accordance with the procedural law.
2. Regarding any encounter operation is over and persons are killed or injured and the same is reported to either orally or writing to the police in furtherance of Section 154 of the Criminal Procedure Code, it shall be registered in Crime Register of that particular police station and that further the said First Information Report along with copies to the higher officials and the Court in original shall be sent with immediately without any delay whatsoever through proper channel so as to reach to the Court without any delay at all. A report, as enjoined under Section 157(1) of the Criminal Procedure Code, shall also be followed necessarily by the concerned police station.
3. After setting the law in motion by registering the First Information Report in the Crime Register by the concerned police officer of the particular police station, the investigating
staff of the police shall take such steps by deputing the man or men to get the scene of crime guarded so as to avoid or obliterate or disfigure the existing physical features of the scene of occurrence or the operation encounter. This guarding of the scene of occurrence shall continue till the inspection of occurrence takes place by the investigating staff of the police and preparation of spot panchnama and the recovery panchnama.
4. The police officer who takes part in the operation encounter or the investigating officer of the concerned police station, shall take all necessary efforts and arrangements to preserve fingerprints of the criminals or the dreaded gangster of the weapons who handled immediately after the said criminal was brought down to the ground and incapacitated and that the said fingerprints, if properly taken and preserved, must be sent to the Chemical Analyzer for comparison of the fingerprints of the dead body to be taken.
5. The materials which are found on the scene of occurrence or the operation encounter and such of the materials including the blood-stained earth and blood stained materials and the sample earth and other moveable physical features shall also be recovered by the investigating staff under the cover of recovery panchnama attested by the independent witnesses.
6. To fix the exact date and actual place of occurrence in which operation encounter has taken place, a rough sketch regarding the topography of the existing physical features of the said place shall be drawn by the police or the investigating staff of the police either by themselves or by the help of the staff of the Survey Department even during the spot panchnama is prepared.
7. The inquest examination shall be conducted by the investigating staff of the police on the spot itself without any delay and statements of the inquest witnesses are to be recorded under Section 161 of the Code of Criminal Procedure and the inquest panchnama shall be sent along with the above case record prepared along with the First Information Report without any delay whatsoever to the Court.
8. If the injured criminals during the operation encounter are found alive, not only that they should be provided medical aid immediately but also arrangements and attempts shall be taken by the police to record their statements under Section 164 of the Criminal Procedure Code either by a Magistrate, if possible and if not, by the Medical Officer concerned duly attested by the hospital staff mentioning the time and factum that while recording such statements the injured were in a state of a position that they will be able to give statements and the connected certificates by the doctors appended thereto.
9. After the examination of further witnesses and completing the investigation inclusive of securing the accused or accused persons, the concerned police is directed to send a final report to the Court of competent jurisdiction as required under Section 173 of the Criminal Procedure Code for further proceeding.
10. Either in sending the First Information Report or sending with the general diary entry referred in the guideline nos. 1 and 2, the concerned police shall avoid any iota of delay under any circumstances whatsoever so also rough sketch showing the topography of the scene and the recovery of the materials and the blood-stained materials with the sample earth and the blood-stained earth with the other documents viz, the spot panchnama, recovery panchnama – all seems very vital documents – the respondents-police are also directed to send them to the Court of concerned jurisdiction without any delay.”
In another case, the Supreme Court[xv] had held that the police would not be excused by terming murder as an encounter. In a plethora of other cases, the Supreme Court has upheld Article 21 in such cases[xvi]. Hence, the protector of citizens has to follow a code of discipline while they do their duty protecting innocent people.
It is to be observed that all such guidelines have been issued by the Supreme Court to retain the trust that people have on the police and other authorities which are involved in the administration of justice. But, with the advent of fake news and 24*7 media trial, the principle of innocent till proven guilty has been more or less diluted in the justice system of India which has now led to vigilantism, mob-justice and even more extra-judicial killings.
What a citizen wants is trust in its institutions ultimately. All our institutions form the bedrock of our democratic and constitutional values if the institutions wither so will the citizen. Where the citizen is outraged and has nowhere to go to due to lack of trust and lack of faith then that becomes the failure of democracy.
Democracy is not only a coffee-house for political discussions, but it is also about how the institutions maintain and preserve the democratic fabric of the country. For this it becomes important that such extra-judicial acts are not made part of any institution’s tool to deal with administration of justice. Yes, vigilance is the sacrifice for safety but, that vigilance should not be an excuse to trammel the voices for justice.
Deterrence and retribution in punishments are the bigger part of the problem. It only makes the State look like an entity which can do anything except fulfil the social contract which it owes to its people.
Heinous crimes even if dealt harshly by the State will not vanish in the air momentously; it will take time and will require cooperation and solutions in each and every layer of the administration of justice.
It is thus important the institutions gain the trust first and then administer justice in a just manner. Only then can a civilization be a civilization.
End Notes[i] ‘The word crime is derived from the Latin root cernō, meaning “I decide, I give judgment”. Originally the Latin word crīmen meant “charge” or “cry of distress.’ https://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf <as accessed on 29-12-2019> [ii] Jagmohan v. State of UP,(1973) 1 SCC 20. [iii] Maneka Gandhi v. Union of India,1978 (2) SCR 621. [iv] Rajendra Prasad v. State of UP, (1979) 3 SCC 646. [v] Bachan Singh v. State of Punjab,(1982) 3 SCC 24. [vi] 354 (3), Criminal Procedure Code, 1973:When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. [vii] 235 (2), Criminal Procedure Code, 1973: If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. [viii] The Law Commission of India, Report no. 262, http://lawcommissionofindia.nic.in/reports/report262.pdf <as accessed on 30-12-2019> [ix] (1979) 3 SCC 646. [x] (1980) 2 SCC 684. [xi] Ravji v. State of Rajasthan, (1996) 2 SCC 175. [xii] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24066&LangID=E <as accessed on 30-12-2019> [xiii] Ibid. [xiv] People’s Union for Civil Liberties v. State of Maharashtra, 23rd September 2014 [xv] Prakash Kadam and Ors. v. Ramprasad Vishwanath Gupta and Anr. (2011) 6 SCC 189. [xvi] Chaitanya Kalbagh & Ors. v. State of U.P. & Ors., (1989) 2 SCC 314, B.G. Verghese v. Union of India, (2013) 11 SCC 525 ETC.
Pooja hails from Uttaranchal University, Dehradun, and she spends most of her time in Reading, debating, writing articles and poetry. Her Interest area lies in laws for Real estate and contemporary laws. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org