RAREST OF THE RARE

BY Vandana Singh24 Nov 2013 12:00 AM GMT

There was unprecedented anger on the streets and those who came out to express their angst refused to leave until Nirbhaya’s rapists were hanged till death. ‘We are here to tell the government that enough is enough. We aren't going back to our homes unless the six people responsible for this are hanged,’ a protester thundered from India Gate.

Less than a year later, four of those held guilty of the horrific crime have been given death sentence; one has allegedly committed suicide while one has been sentenced under the juvenile justice system.

Surprisingly, much before the verdict was pronounced, many were able to predict the punishment with unbridled surety as death sentence. They said the public anger expressed on the streets of the national capital was a message in itself that such brutality had no place in a civilised society.

Recently, a bench headed by Chief Justice P Sathasivam has agreed to hear a PIL questioning the then President Pratibha Patil’s decision to commute death penalty awarded to five condemned prisoners in child rape cases. The petitioner Pinki Virani, a journalist, contended that out of 35 cases in which death sentence was commuted by Patil, five cases are pertaining to brutal child rape and submitted that the relief should not have been granted by the President in those cases. Questioning the decision taken by the President, the petitioner submitted that these are ‘shocking cases’ and death sentence be revoked and the convicts should be hanged till death.

But also shocking was the Tandoor murder case, in which a former youth Congress leader Sushil Sharma burnt his wife Naina Shani’s body in a tandoor after killing her in a ‘fit of rage’ to destroy

evidence in 1995. Sharma’s death sentence was commuted by the Supreme Court on 8 October. The verdicts may or may not have quelled the public anger but have brought into question the role such outrage can play in determining the sentence in crimes as heinous as rapes and murders, in other words in determining what constitutes rarest of the rare crime under which the Indian judicial system grants death sentence.

Rajeev Dhawan, an advocate of the Supreme Court of India, a human rights activist and a commissioner of the International Commission of Jurists, says that rarest of the rare category was a compromise formula between the absolutists, who outrightly rejected the concept of death sentences and the non absolutists, who considered it a necessary evil.

He says that the category of rarest of rare is woolly, inconsistent and lacks content.

Giving a detailed account of how the judicial discourse moved over the topic and how public opinion was introduced as a deciding factor, Dhawan says that the broad parameters of what falls under the rarest of rare category were set in the Macchi Singh vs State of Punjab case. The case involved a family feud that resulted in the killing of 17 people in the course of a series of five incidents.

Pronouncing its judgment in the case in 1983, the Supreme Court ruled: ‘The judges must ask themselves two questions for deciding whether a murder case falls in the category of rarest of the rare cases:
(1) Whether there is something uncommon about the crime which renders a life imprisonment sentence inadequate and calls for a death sentence
(2) Whether the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

But the fuzziest of all additions was made when in the 1989 Allauddin Mian case the Supreme Court observed, ‘Only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, would it be permissible to award death sentence.’ Quite obviously there are no fixed parameters to determine a community’s collective conscience. Dhawan, however, says that one should not mistake collective conscience with public reaction.

But the 1997 judgment in the Surja Ram vs. State of Rajasthan verdict changed the rules of the game. In its landmark observation, the apex court said, ‘It appears to us that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner… Punishment must also respond to the society’s cry for justice against the criminal.’

Dhawan says, ‘The last statement opens the doors for mobocracy in the system.’

Public outrage and collective conscience are arbitrary and ambiguous grounds to decide death penalty simply because there is no parameter to set limits to such highly subjective categories.

Advocate M R Shamshad says that public outrage cannot be and should not be a criterion to award death sentence. He says the categorisation is a fluid one. ‘The public outrage of 2013 is not the same as what it was a decade or two back. The coming out of a few hundred people on the roads after seeing a piece of news is the new-age public outrage. Social media has played a role in galvanizing this outrage, but a judgment cannot be and should not be made on the basis of this.’

‘This is the outrage of the urban rich class,’ Shamshad says.

He adds, ‘Judges are humans too and can get affected by public outcry. There is a possibility of their succumbing to this pressure which actually is nothing but a media creation.’

Shamshad says that the media which builds the public pressure by reporting it and highlighting it should instead build pressure on the police to bring to fore the brutality of the crime committed because ultimately brutality and not public outcry should determine the sentence.’

Senior counsel in criminal matters KK Manan adds, ‘Judges are humans too and don’t want to be seen as culprits after delivering an order. They read papers every morning and might get influenced by what is written about protests and public mood.’

In a 2008 order, the Supreme Court also talked about the other factors that determine whether a crime is rarest of the rare or not. The court said, ‘These were cases in which a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.’

Shamshad, however, agrees that the categorisation of crimes under rarest of the rare is arbitrary as even an accident on the road is brutal, but how much brutality makes it rarest of the rare is hard to define. Dhawan says that the extremely heinous manner in which Nirbhaya was raped made the crime exceptional, but not rarest of the rare. He contends that all rape is brutal and public outcry cannot determine in which case death should be awarded because this outcry is selective in nature.

The court also feels that murders of people from vulnerable social groups should be considered for capital punishment. ‘These can include murders where a lower-caste person or member of a religious minority is killed in circumstances that ‘arouse social wrath’, or some murders of women, such as bride-burning and dowry deaths.’

But in 2006 when Surekha Bhotmange, a dalit woman farmer living in the village of Khairlanji in Maharashtra was brutally killed along with her two sons, Roshan and Sudhir and her 18-year-old daughter Priyanka, the act wasn’t categorised as rarest of rare. It didn’t matter that Sudhir was physically challenged and that the four were hunted down and beaten to death by a mob of upper caste people.

In November 2012, Justice Madan B Lokur, authoring a verdict in a murder case regretted that the sentencing has become judge-centric, rather than being based on the principles of sentencing that require considering crime and criminal equally important. Dhawan rebuts the argument saying all sentencing is judge-centric since under the Indian judicial system we do not have juries for either delivering verdicts or sentences.

‘If the judiciary will respond to public’s baying of blood, it will set a bad precedent and therefore the judiciary has been extremely cautious in granting death sentence,’ he adds.

Dhawan says that the court also taken into account a person’s chances of redemption while pronouncing death sentence. But the whole process of determining who will reform and who won’t is again subjective. In a 2012 February judgment, a SC bench saved from the gallows a man sentenced to death for killing his wife and daughter when he was out of jail on parole. Surprisingly, the man had been jailed for 12 years for raping the daughter when she was a minor. The SC said, ‘This was not rarest of rare since the possibility of the convict's reformation was not foreclosed.

To conclude, the hanging of Dhananjoy Chatterjee for raping and murdering a 14-year-old girl presents a classic case of how public anger itself is not static. The brutality of the rape and murder had shocked the country when the case came to light in 1990.

However, when Dhananjoy was finally hanged in 2004, he had already served around 14 years in jail and his family had lost all property in its legal battle to save Dhananjoy from the gallows. Many felt that there existed a scope for Dhananjoy’s reformation. Maybe by then the public anger had subsided.

RAREST OF THE RARE

Vandana Singh

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