One Small Step Towards Abolition?

Death penalty grim reaper

On 31st October, the High Court of Delhi – writing through Justice Muralidhar – decided a death penalty reference that can have (potentially) significant consequences for the future of capital punishment. The appellant had been convicted for the rape and murder of a three-year old child, and been sentenced to death by the trial court. On 17th April, 2014, the High Court affirmed the conviction. With respect to the award of the death penalty, the Court rejected the notorious “balancing test” of Machi Singh (which was contrary to precedent and has been questioned by the Supreme Court subsequently), and held that one important aspect to consider was the possibility of reform and rehabilitation for the criminal.

So far so good. Until now, however, this assessment – of whether or not the convict could be reformed/rehabilitated – was being taken by judges. Reading death penalty cases, it becomes evident that this assessment would rarely be based on objective factors. In most circumstances, it would be a snap judgment, depending upon the judge’s intuitions about the gravity or severity of the crime, whether or not the convict had exhibited remorse, and a number of other factors of this sort. The problems with this approach had already been acknowledged by the Supreme Court before. In Anil vs State of Maharashtra, a 2014 judgment, the Court had noted:

“… the State is obliged to furnish materials for and against the possibility of  reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already  stated, calls for additional materials.”   

Focusing upon this, in its 17th April order, the Court directed the government to assign a probation officer (PO), with the task of preparing a report, devoted to the following two questions:

“(i) Is there a probability that, in the future, the accused would commit
criminal acts of violence as would constitute a continuing threat to society?
(ii) Is there a probability that the accused can be reformed and rehabilitated?”

For the purposes of greater objectivity, the Court laid down three further guidelines that the PO would take into account:

(a) enquire from the jail authorities and seek a report as to the conduct of the accused while in jail.

(b) meet the family of the accused and local people [to] seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) seek specific inputs from two professionals with not less than ten years’ experience from the fields of Clinical Psychology and Sociology.”

Following the directions of the Court, the report was prepared, “based on a personal interview with the Appellant in Tihar Jail, Delhi, interviews with his family members and neighbours  in his native place in Siwan, Bihar, the report of the local panchayat and a report from the Police Station (PS) Basatpur. The SIR also incorporates inputs of the Clinical Psychologist, Psychiatric Social Worker and Superintendent of Jail, Tihar as well as the assessment by the Medical Board of the Institute of Human Behaviour and Allied  Sciences („IHBAS‟).”

It was found that, for the most part, the report was positive. Even though the convict had exhibited no outward signs of repentance, the PO report noted that, based on its findings as a whole, repentance “needs to be developed through reformative and corrective services and it will take a long process for reformation and reintegration into the society.” This was affirmed by the medical report, according to which “there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures.”  Accordingly, the sentence of death was commuted to one of life imprisonment.

There is a shift, therefore, from a situation in which the potential for reformation and rehabilitation is judged from the perspective of two or three judges, with their individual biases, to one in which a whole host of stakeholders, who have had an intimate connection with the convict, are brought into the equation, with the requirement of consulting medical panels adding an extra layer of objectivity to the enquiry. A positive reference from any one or more of those bodies would create enough of a doubt in the Court’s mind to – following Santosh Kumar Bariyar’s “principle of prudence” – refrain from confirming the death penalty.

In the long road towards abolition, this is perhaps one small – yet hugely significant – step.

(This post originally appeared on the Indian Constitutional Law and Philosophy blog on November 12, 2014 and can be accessed here.)

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5 thoughts on “One Small Step Towards Abolition?

  1. I’d beg to differ with the judgment as respectful as it is of the abolitionist tide. Once the guilt stands proven for murder and rape of a three year old (hence, the life imprisonment and not an acquittal), it is hard to see why a person who has subsequently decided to be a saint, should not be punished by the State for the previous sin. He had a chance at redemption, and luckily for him the State has given it to him. What about the girl’s shot at redemption?

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  2. But Naman, but how does executing the man suddenly give the deceased child redemption? Furthermore, if his penance does in fact offer redemption, why doesn’t life imprisonment accomplish that?

    I think this notion that “her soul shall only rest”, or “true justice for her death shall only be done”, if the man is killed, is rather childish. I mean, I could also sufficiently claim that measuring the value of a victim’s life through the prism of what is done to the criminal’s life is what dehumanises the victim further… Why should his treatment be the yardstick to determine what’s truly just for her? The victim faced an injustice, but the idea that it is remedied all of a sudden just because the culprit is executed, seems rather facile.

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  3. No no I don’t think her soul’s rise to heaven is contingent on this man’s death at the gallows. Just don’t see a point in stepping back from the “rarest of rare” when a case is made out for it based on a subsequent study of reformation. The idea that we must abolish death penalty because it is the accepted liberal view is what bothers me. I think it is a valid weapon in the arsenal of the state. Of course in a different case where there is doubt as to guilt itself, of course no question of death penalty should arise. So maybe raise the evidentiary threshold for criminal trials. Use DNA evidence. Whatever new fancy tech tool crime labs are using etc. But once the evidence is there, then if the facts merit, then the punishment should flow based on the crime at the time it occurred rather than based on who the person has become years later.

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    • But the rarest of rare test itself in its application is subject to the possibility of reformation. That it has never been applied as lucidly as applied by Muralidhar here does not mean that this is digressing from the rarest of rare standard.

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