The phrase "judicial responsibility" means not just the responsibility to uphold the law; it means the overarching responsibility to do justice. In Glossip v. Gross—which came up before the United States Supreme Court recently— a group of prisoners on death row in Oklahoma contended that the method of execution now used by the state violated the Eighth Amendment (which bars 'cruel and unusual punishment') because it creates an unacceptable risk of severe pain. They lost. Five judges did not agree with them.
Speaking for the minority of four, Justices Sotomayor and Breyer wrote dissenting opinions. Breyer spoke of judicial responsibility after listing out the factors which argue against death penalty. They are the lack of reliability, arbitrary application of the sentence, delay, lack of penological purpose. You can find these in any country where the law provides for death penalty, not least in India.
Rather than trying to "patch up the death penalty's legal wounds one at a time," said Breyer, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."
We in India need to ask the same question.
Which is the right time to speak about the morality and correctness of death penalty? When a convict is facing the gallows and there are last minute reviews or pleas for pardon with the media going full blast about the bestiality of the crime and the victims praying for justice, the climate is surcharged. Not the right time. Once the convict is executed, there are human rights activists shouting that India has a black mark and others asking then what about the human rights of the deceased/s; the media is milking the moment to the last drop. Not the right time. When nothing is happening, no death row prisoner is waiting for the noose, the climate is calm, and no one is interested. Not the right time. So when do we engage the public with the question of whether a civilised society should take lives in the name of the people? That is what the state does, when it executes the death sentence.
"Choose life and then you and your descendants shall live" (Deuteronomy 30:19). Choose Life. This is the title of a book which records the dialogue between Daisaku Ikeda and Arnold Toynbee during the years 1972-1974 covering a wide range of issues including the death penalty. Ikeda says, "I feel that life, as an absolute entity worthy of the profoundest respect, must never be treated as a means of achieving anything other than life itself. The dignity of life is an end in itself." Toynbee responds "No human being has a moral right to deprive another human being of his life." Someone may ask what if that human being deprived other human beings of their lives, then what? Surely we are not in junior class shouting, "But he beat me first, Miss!" Yes, the convict took away lives and is guilty of murder. That is precisely why we are discussing the death penalty in the first place.
The death penalty is irreversible. The Innocence Project is a non-profit organization which demonstrates by DNA testing the "judicial errors" in death row cases. If an error is proved beyond doubt but the execution has been carried out, how does one compensate the 'victims' of judicial process? The executed cannot be resurrected. The executed cannot be reformed.
In 2000, the Madras High Court (Justice Sirpurkar and I) heard an appeal against the death penalty. A school-girl was raped and murdered by three persons. It was a sensational case. The trial court found it to be a case of the 'rarest of rare' and sentenced them to death. We commuted the sentence to life. I received several letters asking me if I was a woman, since the deceased was a victim of sexual violence. There was no platform from where I could say that we had not acquitted the accused, but we had commuted the sentence, for valid reasons regarding the circumstances of the accused. Sometime in 2014, I read a news item about a project in Tamil Nadu conducting courses for prisoners to rehabilitate and equip them with life skills. Among the life-term prisoners who had secured gold medals and state ranks was the first accused in the above case. This is not submitted as an argument against the death penalty, but as an argument for upholding the right to life. The state punishes not only as a deterrent, but to reform too.
There are many reports of studies in the US which indicate that the factors that circumstances that ought not to affect the imposition of the death penalty—such as race, gender or geography—often do. In India too, such extraneous factors affect the application of the death penalty. Count the number of persons who can afford the best legal counsel and have gone to the gallows and you will have your answer. Then is it judicially responsible to apply such a random game-changer when it comes to life and death?
The Coimbatore bomb blast is a classic case in which death penalty could have been awarded. Nineteen bombs exploded in the city on February 14, 1998, resulting in the deaths of 58 persons and injuries to 250 persons and huge loss to private and public properties. In all, 166 persons faced trial but the court did not sentence even one to death. Revisions were filed seeking enhancement of sentence. They were dismissed. The trial court had given very responsible reasons for not giving the death penalty though the public prosecutor had pleaded that this was a most fitting case for capital punishment. The court said that none of the accused was granted bail during the trial and this deprived them of securing the best legal counsel and collecting all the relevant materials to support their case. The long period in jail resulted in internal friction amongst the accused themselves which again was counter-productive to their conducting the case. The manner in which witnesses were examined and the cross-examination conducted had also caused prejudice. Only a few of the advocates who appeared for the accused had given their best to defend them. The accused had pleaded that the offence was a result of the sense of isolation they felt and the consequent loss of faith in the system. These circumstances weighed with the trial court. Each one of the reasons is an aspect of fair and equal access to justice—ensuring which is undeniably the responsibility of every judge. I was one of the judges who heard the appeals before the Madras High Court and hence my familiarity with the facts.
In the Naroda Patiya judgment, the trial court explained why the death penalty was not given. If there was a case which the court could have easily called the rarest of rare it was this. Yet the judge cited the rights of those on death row, the restricted use of the death penalty in a progressive society, and the fact that use of the death penalty undermines human dignity, to support her decision not to grant capital punishment.
Both cases—Coimbatore and Naroda Patiya— are scarred by the death of innocent victims. No one was awarded the death penalty and both the trial judges gave reasons for their decisions. But in similar cases, the death penalty has been awarded. This means there is an inconsistency in sentencing even in cases where numerous persons have been killed.
There are the victims who demand justice. It is allegedly to assuage their feelings that society insists on the death penalty. In a 1985 Stanford Law Review article, Lynne Henderson has written, "Common assumptions about crime victims—that they are all "outraged" and want revenge and tougher law enforcement—underlie much of the current victim's rights rhetoric. But in light of the existing psychological evidence, these assumptions fail to address the experience and real needs of past victims."
According to her study, the promise of an execution offered only a seemingly appealing mechanism to assign blame and to channel rage. Actually the crime victims felt that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only served to increase stress and delay healing. Then is it only the "Roman crowd" which seeks a vicarious taste of blood?
In Justice: What is the Right Thing To Do?, Michael Sandel wonders if morality does not mean "something to do with the proper way for human beings to treat one another." Toynbee and Ikeda agree that human life as an entity deserves absolute respect. Sandel asks "Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations?" The Right to Life is not a subject-to right. It is fundamental because it is life which is fundamental.
In times of death penalty, I believe courts should close their ears to the ambient din. While hearing the case with all the patience at their command, courts must remember that the right to life rises above weighing costs and benefits, that as long as there is life, there is room for reform, that justice without delay provides better closure to victims than execution after decades, that every system is fallible and life is too precious to hang on to a fallible process. So it is better to be responsible and to Choose Life.