Death penalty vs life sentence? Revisiting Sharon Raj, RG Kar murders | Ep 141

[00:00:00] In a rare decision, a Kerala court decided to award a death sentence to a 24-year-old woman, SS Grishma, for poisoning to death her boyfriend, Sharon Raj. While many lauded the court's decision, several experts have questioned whether the crime warranted the extreme punishment. Hi and welcome to News Brake.

[00:00:26] This is Harita Benjamin and today we are here to discuss the relevancy of capital punishment in today's day and age. So joining us today we have Dr. Anub Sudendranath. He is the Executive Director of Project 39A at the National Law University, Delhi. So they extensively research on death penalty and looks at the socio-economic conditions of convicted felons.

[00:00:54] So thank you so much for joining us today Dr. Anub. Thanks for having me Harita. Alright, so to begin with, my first question is on the recent case of death penalty which was awarded by Neyat Ingra Additional Sessions Court. So the Supreme Court has said that life sentence is the rule and death sentence is an exception. And the latter must be imposed only when a life sentence seems highly inadequate, right?

[00:01:22] So in its order, the Neyat Ingra Additional Sessions Court says that the decision to impose a death penalty on Grishma was taken after looking at the aggravating and the mitigating circumstances and comparing them both as suggested by the Apex Court. So why did the court here decide that the mitigating factors like the convict's age for instance and the scope of reform overrides the aggravating factors? Could you elaborate on that?

[00:01:47] Thanks for that question. I just want to clarify first that the position that life imprisonment is the norm and death penalty is the exception also comes from the Criminal Procedure Code which is now the BMSS. Right. That's the position in law and which of course as you rightly said, the Supreme Court has also reiterated because that's the law. Yeah.

[00:02:12] That, you know, if you want to impose a death sentence, you have to give special reasons, right? And that's laid down in the Criminal Procedure Code and the BMSS. So, in that sense, the default punishment is life imprisonment and you better have special reasons to impose a death sentence. When you want to impose a death sentence, you have to do two things, right?

[00:02:35] One is, as you rightly said, balance aggravating and mitigating circumstances and see, you know, does this fall into the rarest of rare kind of category. Right. And there you have to look at both the circumstances of the crime and also the circumstances of the accused. You can't just go by the brutality of the crime, right? Correct. You look at both the crime and the circumstances of the accused.

[00:03:01] And even on that balance, if you come out saying, I think that, you know, this situation is rarest of rare, there is a further requirement, right? And the requirement that's laid down in Bachchan Singh, which is a 1980 judgment, which is a five judgment judgment, and it really controls the law on this. Right. Says that you have to go one step further and you have, the state has to show that there is no probability of reformation.

[00:03:31] Right? Right. Only then is it justified for the court to impose the death sentence, right? So you have to do this kind of two step category thing. And look, as lay persons or the public may not like that this is the law, but it is the law. Right? And the Nyatigar judge had no option but to apply the law. And I think he has not done a good job of it.

[00:04:01] And I think there are significant errors in that judgment in terms of, at least on the sentencing part of it. Right. The main thing is, the judge has not shown in any convincing manner as to why there is no probability of reformation. Right. Yes. It is not good enough just to say, oh, she tried doing this once earlier, she might again, she let her out, she might do it again. How have you come to these conclusions? Right?

[00:04:30] On basis of what material, have you come at these conclusions? And, you know, even there is a 2022 Supreme Court judgment in Manoj, which requires a judge to call for certain reports, like a conduct report from prison, a probation officer's report, have a mental health assessment done. Now, these are all requirements that a trial court judge has no option but to do. Right.

[00:04:59] But here, you see a failure of it. You can't go and impose the death sentence without going through the steps that the Supreme Court has laid down. And there is a gross failure in the judgment of the Nyatigar judge to do that, unfortunately. Right. So, I think here we also have to talk about the societal pressure, right? Do you think societal pressure often affects a court while writing a death sentence?

[00:05:26] Now, I was just going through the order in the Nyatigar case and I quote here. So, the judge writes that the crime was committed so brutally that the pricks or shocks of shocks not only affected the judicial conscience, but even the conscience of the society. And the offense was committed with an intention to create fear and psychosis in the public at large. So, it also gave a message that a lover cannot be believed.

[00:05:53] So, this is one of the primary points which they have mentioned in the aggravating factors while creating the balance sheet and coming to the death sentence. So, on the same day, we also had another court in Kolkata which decided not to give a death penalty to a rape and murder case of a doctor, right? And that was when there was widespread protests which were happening for months. Correct.

[00:06:19] So, like how much does societal pressure affect a court's verdict and should it? You know, because courts should ultimately not play to the masses in my opinion. So, what is your take on that? Yeah. Yeah. So, Harita, let me give you a statistic, right? Yeah. And this is statistics that we have assessed over 20 years of death sentences that trial courts have been imposing across India. Okay.

[00:06:47] Now, for every 100 death sentences that trial courts in this country give on an average, right? About 40% of those ultimately are converted into acquittal. Right. Yeah. In the appellate court, in the High Court of the Supreme Court. Out of every 100, 40. That must really shock us as a statistic. Yeah, that's a huge number. Right. Yeah. Right.

[00:07:13] And a further 55% are commuted. The punishment is reduced from death sentence to life sentence. Right. Yeah. So, now for every 100 death sentences, 95 are not appellate. Right. And that is a shocking number for a system because it shows that there is an exaggerated use of the death penalty in the trial court. Right. And what is happening? Exactly what you said. Right.

[00:07:42] These judges invariably are operating under tremendous local pressure. Right. And their own approach to this is, okay, let me give the death sentence. The High Court or the Supreme Court will reduce it. Let me not be the one to incur all this or draw all this ire at myself and not give the death sentence. Right.

[00:08:05] Now, I can be nearly 100% certain that this death sentence will not be upheld when it goes to the Kerala High Court or the Supreme Court. Right. And then if you read the R. Z. Kerr judgment, a case where there is such tremendous public pressure, the judge is very clear that as a judge, the judge's job is to apply the law and the judge's job is not to give effect to public sentence. Right.

[00:08:34] And I think that is so refreshing to hear from a trial court judge that your job is to apply the law. Right. Right. Your job is not to give, to be a mirror to society's sentiments, either good, bad, ugly. That's not your job. Right. Your job is, okay, what does the CRPT say or the BNSS say? What do judgments of the Supreme Court say?

[00:08:59] And you have to follow those steps, whether you like it or not, irrespective of whether you think Grishma is a horrible person, she's diabolical, she's manipulative. You know, whatever you think of her as a judge, that is immaterial. You have to follow the demands of the law because if judges start imagining themselves as doing the job of what society wants, you know, we are down a dangerous path.

[00:09:26] It is not, then it's no longer rule of law. It is just rule of persons. And, you know, for centuries, those battles have been fought to say that when courts decide cases, they will decide according to what the law demands and not what people demand. Right. Right. That is just mob justice. That is just mob justice. Right. So I think that also brings us to the question of, you know, what constitutes this rarest of rare, because that's a very relative term.

[00:09:56] So is there a definition for this? And, you know, how does a court arrive at the conclusion that it is rarest of rare? Yeah. Yeah. No. And, you know, it has been long criticized and the Supreme Court itself has acknowledged as to the arbitrariness and the inconsistency in understanding what is rarest of the rare. Right. Not just in the Supreme Court, but also in the High Court and the trial courts. Yes. And that is a big part of the problem with the death penalty in India. Right.

[00:10:28] It's, you know, it's something what Amnesty International called in the early 2000s as a lethal lottery. It is literally that. Right. Because today you've seen an approach to rarest of the rare very different in RG curve compared to what has been done in Grishpat's case. Right. Right. Yes, there are certain, and a big part of the problem is, the Supreme Court's own jurisprudence is, you know, you can cherry pick depending on what outcome you want.

[00:10:56] You know, unfortunately there are different lines of decisions that you can cherry pick and decide. And that's exactly what has happened in Grishma. The judge has cited only decisions and parts of Supreme Court orders. The judge has cited only the same rules as a result of the rarest of the rarest of the rarest of the rarest. And the other part, the only way they say you have to go about rarest of the rarest is that, you know, you have to look at the aggravating factors, you have to look at the mitigating factors.

[00:11:25] Now, in Grishma's case, what mitigating factors were collected? Right. Yes. You have an opportunity for, and that is exactly what the judgment of the Supreme Court in Manoj in 2022 said. You have to, as a sentencing judge, first ensure that you have reasonably collected mitigation information also. Right.

[00:11:51] And it is not just about just saying, oh, this person is young or, you know, anything of that sort. There has to be a very deliberate, proper exercise of collecting mitigation information, which was not done in this case. Yes. Then you need to give weight and then balance these. And then you have to see, has the state made a case that have they shown you, and the obligation is on the state. The obligation is not on Grishma or her lawyers to show that she can be reformed.

[00:12:21] The obligation is on the state to show that she cannot be reformed. Right. That is the law. Yeah. And when you read, when you read the judge's opinion in Grishma's case, the judge has absolutely not answered that issue. That question at all. You cannot impose the death sentence. Yeah. You cannot impose the death sentence unless you answer that question. Yeah. Yeah.

[00:12:43] So I think, you know, moving on, like if you're looking at the disposal rate, which you just mentioned earlier, the 40 to 60 ratio. So why is the disposal rate extremely low? And doesn't that deceive the entire purpose of a death penalty? So if you keep imposing it and it's not implemented, it's not going to cause any deterrence at all. Right. So what is the objective, you know, here? And will, yeah, could you just clarify that? Yeah.

[00:13:13] So, you know, I'm glad you asked that question. Yeah. Now, of the 100 death sentences, if we hurriedly go out and execute everyone, right? All those 100. Look at what has happened, right? In 95 of those cases, the appellate scores are coming to the conclusion that death is not called for. Right? Yeah. So we can't be too hurried about this as well.

[00:13:38] You know, in some states like Madhya Pradesh and UP and all, you see these trials being completed in seven days, five days, and death sentence is given. And then when it comes to the Supreme Court, the judges are shocked as to the shabby manner in which the trials are done and everybody celebrates and goes and garlands the judge and no fastest death sentence in India. Right.

[00:14:01] Because the idea is that the constitution guarantees you certain due process protection, right? And that process has to be played out because that process is the protection against this kind of arbitrary decision making. Right. And unfortunately, we operate in a system where there is tremendous amount of delay.

[00:14:27] And so even when my death sentence has to be commuted or I have to be acquitted, I would have ended up spending 10 to 12 years in prison easily. Right. Right. Yeah. And living at, you know, as a matter of statistics, it's very easy for us to say, yeah, what's the problem? Anyway, the death sentence won't be executed. Statistically, you know that.

[00:14:51] But for those people who have to live day in and day out unnecessarily under the sentence of death for that many years, you know, the torture of that is quite unimaginable. Right. And we treat it as an abstract issue. And we treat it as an abstract issue. But we are asking hundreds and hundreds of people to be on death row unnecessarily until the appeal process plays out and the death sentence is removed.

[00:15:17] And, you know, that really is unacceptable as a constitutional democracy.

[00:15:51] Yeah. So, you know, that's not a criminal justice. Yeah. Right. Yeah. Except in terror offenses. That was the conclusion. Of course, the law commission, that exception also, there are very little justification as to why the law commission seems that that exception is required. But anyway, I won't get into that. Okay.

[00:16:08] But on the death penalty itself, it felt that it is imposed in large percentages and our research has also shown that it is largely imposed on the poor, on the marginalized sections of society. And that is true of every single country in which the death penalty exists. Understood. The poorest and the most vulnerable sections of society that get it. The richest end up being acquitted. Yeah. Right? Yeah. The worst person on death row. Right? Right.

[00:16:39] It's ridiculous. Right? So, second, the process by which we are deciding who gets death, who doesn't get death, you know, what is rarest of rare, how should a judge decide. It is so characterized by arbitrariness and inconstancy that it is almost like an empty concept with rarest of rare now. You know, it is like a hollow shell and you can put anything into it and call it rarest of rare. Right? Right. Right.

[00:17:08] It's not just me saying it. It's not just me saying it. The Supreme Court itself has recognized it and it keeps making these efforts to try and streamline the adjudication process of how to decide in which cases to give death and which cases not to give death. Right? And the continuing numbers from the trial courts just show that, right? Right.

[00:17:29] That it is used in an exaggerated fashion, violating what the law is in both our PRPT and in the judgment of the Supreme Court. And, you know, just to finish off, Jaisal Blackman in the U.S. Supreme Court, you know, when he began his tenure, he was a big proponent of the death penalty and he felt that, you know, you could keep making the administration of the death penalty fairer.

[00:17:57] And, you know, procedurally, you could make it fairer and fairer to solve some of these problems that we've been discussing of consistency and arbitraried. Right. And, you know, for a long time, he tried doing that in his judgment on the U.S. Supreme Court. But except at the very end, you know, he gave up. He gave up and he realized that how much ever you try and, you know, try and make these adjustments to bring about fairness, it is almost impossible to do so.

[00:18:23] And famously, in his last judgment on the death penalty, he said, I shall no longer tinker with the machinery of death. Right. Right. And, you know, at some day, I think our judges will also realize that, right, that it is just too arbitrary and we can't fall for that. Right. I think that's a very valid point. And I think with that, we can wind up today's podcast. Thank you so much, Dr. Ranu, for joining us. And this is on Manurama's Newsbreak. Yeah.

[00:18:53] An Explainer podcast produced by Harita Benjamin. That's me. It airs every week and is available on all podcast platforms. Do follow on Manurama.com for more such updates. Thank you so much.