-Abhinav Somani
Introduction
Through this blog post, I aim to bring out what I call the ‘Inherent Inconsistency’ of the death penalty. Through this term, I am referring to how the death penalty is inconsistently administered owing to when the laws — judicial and legislative — surrounding its administration change.
Take an instance. Harbans, Kashmira, and Jeeta Singh were sentenced to death in 1975 for the same offence. All three of them filed separate Special Leave Petitions (SLP) against the sentence. Both Jeeta and Harbans’ SLPs were rejected. Kashmira’s SLP, however, was allowed and his sentence was commuted to life imprisonment in 1977.
It was only when Harbans filed a writ petition on 6 October 1981, bringing to the court’s notice Kashmira’s commutation, that Harbans’ execution was stayed. On the same day, however, Jeeta had already been executed. Chandrachud, C.J. decreed in Harbans Singh v State of UP that the benefit of commutation in a case was to be extended to equally culpable co-convicts.
Here, had Jeeta’s execution been scheduled after 12 February 1982 (when Harbans Singh was decided), he would not have been executed. Following the court’s decree, the jail superintendent would have found out that Kashmira’s sentence had already been commuted. But for the temporality of the death penalty, Jeeta would also have had his sentence commuted. There was a change in the law, namely requiring the benefit of commutation to be extended to co-convicts, but Jeeta was unable to take advantage of the change, owing solely to the timing of his execution.
Going forward, I will firstly bring out more examples of such temporal changes in the law, which those sentenced to death were unable to take advantage of owing to the temporality of the death penalty. Secondly, I will point out how this makes the death penalty ‘inherently inconsistent’. Lastly, I will argue that the death penalty’s inherent inconsistency is a ground on which its constitutionality can be revisited.
Temporal Changes in the Law
Legislative Law
Until 1955, when sentencing for capital offences, Courts were required to record reasons for not awarding the death penalty. In 1955, under the Code of Criminal Procedure (Amendment) Act, this requirement was done away with, indicating a lack of legislative preference between the death penalty and life imprisonment. This amendment came into force on 12 August 1955 (Gazette ID 139246). However, even in the period from 1 January 1955 to 12 August 1955, when the death penalty was the norm for a capital offence, at least three people were sentenced to death. Two of them are relevant to us.
Lachman Ahuja and Pherumal Sangtani were sentenced to death on 6 January 1955 by the Bombay High Court, in State v Lachman Ahuja. Here, the court enhanced the sentence of transportation for life imposed by the Trial Court, reasoning that “[T]here is no good ground in law for not passing the capital punishment on both of them”.
Had the case been decided after the repeal of s. 367(5) came into effect, that is, 7 months later, their sentence would not have been enhanced to the death penalty. Here, the only reason for enhancing the punishment to the death penalty was the lack of any adequate reason for not awarding it. Thus, doing away with the need to record such reasons might have led to the life imprisonment sentence being upheld.
Judicial Law
Apart from the example of Harbans Singh above, we can also consider Pyare Lal v State of MP, a 1977 judgement awarding the death penalty under Section 303 of the IPC. Just six years later, Section 303 was struck down by Mithu Singh v State of Punjab. In Pyare Lal, Fazal Ali, J. lamented while upholding the award of the death penalty that “[u]nfortunately…under Section 303 no other sentence other than death can be imposed.” Here, we observe that had Pyare Lal been sentenced 6 years later, after s. 303 had been struck down, or had the section been struck down before he was sentenced, he would not have been awarded the death penalty.
More examples of such temporal changes can be found in Earabhadrappa Alias Krishnappa v State of Karnataka and Amrik Singh v State of Punjab decided 3 and 5 years, respectively, after Bachan Singh v State of Punjab. Bachan Singh made it tougher to impose the death penalty, confining it to the ‘rarest of rare’ cases. In both Earabhadrappa and Amrik Singh, Justice A.P. Sen lamented that “The test laid down in Bachan Singh case, is unfortunately not fulfilled …we are constrained to commute the sentence of death…into one for imprisonment for life.” Here, due to the timing of their sentencing, the appellants were able to take advantage of a change in the law. Had they been sentenced before Bachan Singh, their death penalty would have been upheld.
The instances pointed out above show the temporality of the laws surrounding the death penalty. As can be observed, the award (or non-award) of the death penalty often becomes a matter of time. Having shown the temporality of the death penalty, I shall now demonstrate its ‘inherent inconsistency’.
Inherent Inconsistency
Let us assume that we have an ‘absolutely consistent’ death penalty sentencing framework, leading to like sentencing in like cases in every single instance. This framework should, logically, have no inconsistency in death penalty sentencing.
However, this framework will still suffer from inconsistency in sentencing, owing to the temporality of changes in the law surrounding the death penalty. As our ‘absolutely consistent’ system cannot control or predict when changes in the law will occur, it cannot prevent differing sentences from arising in similar cases due to a change in the law. As such, even an ‘absolutely consistent’ sentencing framework might award the death penalty today for the same offence that will attract only a life sentence a month later.
Consider Harbans Singh again. Here, our ‘absolutely consistent’ sentencing framework would still have led to the execution of Jeeta, as it would still be bound by the temporality of the laws which constitute it. It could not predict that two years later, Harbans Singh would require the benefit of commutation to be extended to co-convicts.
Inherency of the Inconsistency
Eliminating this inconsistency would mean ensuring that no accused will be precluded from accessing a beneficial change in the law surrounding the death penalty, owing solely to the temporality of the changes. Guaranteeing the same will require us to either i) award a mandatory death penalty for capital offences; ii) keep laws surrounding the death penalty static; or iii) establish a mechanism which will allow someone sentenced to death to take advantage of beneficial changes in the law.
The first solution would make the administration of the death penalty consistent, as it would ensure that all, irrespective of when they are sentenced and executed, would get the same punishment for the same offence. However, this solution is not good in law as mandatory death penalty has been abolished by Mithu Singh.
The second solution too is not feasible. As intuitive sense suggests and as the Supreme Court has emphasised, the legislature must do its best to “keep pace with changing needs and values”. Keeping our laws regarding the death penalty static forever might be counter-intuitive.
The third solution is good in law. However, the trouble arises in fixing the period within which a person can use the mechanism to take benefit of changes in the law. Let us say that the mechanism allows someone to take benefit of changes in the law for up to one year from the date of sentencing. This will leave those who were sentenced, say, one year and one month ago still facing the death penalty, even though those who committed an offence one year ago are equally culpable. Similarly, if the period to take benefit of the changes is set at five years, then those sentenced five years and six months ago will still face the death penalty. No matter how long the period is, some accused will always be disadvantaged. To deal with the temporality of this mechanism, we could set an infinite time period for using the mechanism, such that anyone, regardless of when they were sentenced, can take the benefit of changes in the law.
Now, however, the date one is executed will decide whether one is allowed to take the benefit of changes in the law or not. As even the best possible sentencing system cannot predict when changes in the law will occur, a situation could arise where a person is executed on a particular day, only for a change in the law to occur soon after which would have led to the commutation of their sentence. Thus, the solution to the solution suffers from the same temporality.
Removing the temporality of the execution itself will require us to never execute an individual even when they are awarded the death penalty. If implemented, an individual would not be impeded by temporal factors in taking benefit of changes in the law to get their death penalty commuted to life imprisonment. This is, in effect, an abolition of the death penalty.
Thus, as the only feasible method to rid the death penalty of its inconsistency is to abolish it, this inconsistency is inherent to the death penalty. Therefore, the death penalty is ‘inherently inconsistent’.
Inherent Inconsistency violates the Rule of Law
The rule of law requires consistency in punishment. However, even if we adopt the best possible sentencing system, as demonstrated above, the administration of the death penalty will always be inconsistent owing to its inherent inconsistency. This will violate the rule of law.
Objection
One might object that if we accept inherent inconsistency as a reason for not punishing with the death penalty, then no offence should be punished, as the law might change beneficially for every form of punishment with time. Every punishment is inherently inconsistent in the same manner as the death penalty.
While this is certainly true, I submit that an exception must be made for the death penalty due to its ‘unique irrevocability’. While every punishment permitted by Indian law is irreversible to some degree, the death penalty is ‘uniquely irrevocable’ as it permanently and irreversibly excludes an accused from taking benefit of changes in the law.
This can be illustrated by considering a fact scenario similar to Harbans Singh. The only difference is that the three convicts have received life sentences instead of the death penalty. On their separate applications, the court reduces the sentence for only one of them, so another brings this disparity to the court’s notice. The court then reduces sentences for all of them, decreeing that the benefit of reduction in duration of imprisonment must be extended to the co-convicts in a case. Here the sentence of life imprisonment, while not totally reversible due to the time already served, did allow the other two prisoners to take advantage of a beneficial change in the law. This would not have been the case had the other two already been executed.
Thus, I submit that this ‘unique irrevocability’ of the death penalty sets it a class apart from other punishments permitted under Indian law.
Conclusion
In this blog post, I have brought out the inherent inconsistency of the death penalty, owing to which the death penalty can never be consistently administered, even with the best possible sentencing system. While the same is the case with other punishments too, the ‘unique irrevocability’ of the death penalty sets it a class apart. This inconsistency in punishing violates the rule of law, which can act as a ground to re-visit the constitutionality of the death penalty.
The writer is a 2nd-year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru.