The Problem of Our Laws

That Bhullar should hang before Kamal Nath or Jagdish Tytler may not be a travesty of law, but it is a travesty of justice

In a judgment delivered on 7 February 2013, India’s Supreme Court had clarified that, ‘to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test), which depends on the perception of society and not ‘judge-centric’, that is, whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence because situation demands, due to constitutional compulsion, reflected by the will of the people, and not judge-centric.’

The Court’s intent to move away from the subjectivity of sentencing to a more clearly articulated framework is admirable, but the actual framework suggested by the Court is problematic with its unclear reliance on society’s approval and the will of the people. In an accompanying piece, Ranjit Singh Gill has argued that the death penalty awarded to Devinderpal Singh Bhullar does not fit the definition of ‘rarest of rare’. And this week, the Gujarat government has decided to ask for a death sentence for Maya Kodnani, who was sentenced to life for leading a mob that killed 97 Muslims in Gujarat in 2002.

The two cases are a contrast. Despite an acquittal by presiding judge MB Shah, Bhullar was sentenced to death after two other judges argued that proof beyond reasonable doubt should be a guideline, not a fetish. Kodnani, in contrast, was spared the death sentence because the judge in the case, Jyotsna Yagnik, observed that although the death penalty may ‘bring justice’, its use ‘undermines human dignity’. Thus, a death sentence has been awarded in a case that does not seem to merit the definition of rarest of rare while it has been avoided in another where the judge believes it may deliver justice.

If the death penalty exists in our statute of laws, then Kodnani certainly deserves it, and Bhullar, it can be argued, does not. Even if we go back to what the Supreme Court said about the Court’s need ‘to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes,’ the terror inflicted by the acts that Bhullar was accused of was certainly no more than the terror inflicted by Kodnani.

Kodnani’s case is yet to come up before the Supreme Court, but a similar case did. Kishori Lal, the ‘butcher of Trilokpuri’, had been sentenced to death on seven different counts by lower courts for his role in the 1984 massacre of Sikhs. A two-judge bench of the Supreme Court that commuted these to a life sentence noted that ‘the acts attributed to the mob of which the appellant was a member at the relevant time cannot be stated to be a result of any organised systematic activity leading to genocide. Perhaps, we can visualise that to the extent there was unlawful assembly and to the extent that the mob wanted to teach stern lesson to the sikhs, there was some organisation; but in that design, they did not consider that women and children should be annihilated, which is a redeeming feature.’

Surely, the claim that the stern lesson taught by murdering Sikh men is somewhat redeemed by the decision to spare women and children (an erroneous claim) is questionable. Given such a diversity of views on crimes of comparable magnitude, the Supreme Court’s clarification on the death sentence is pointless.

As an aside, going beyond the Supreme Court, it follows from these cases that our system of justice has much to answer for. One of the two judges making the observation in the Kishori Lal judgment was Justice GT Nanavati, who was later picked to head a commission to look into the 1984 massacres. The words quoted above suggest that his conclusion that ‘there is absolutely no evidence suggesting that Shri Rajiv Gandhi or any other high ranking Congress (I) leader had suggested to organised attacks on Sikhs’ was pre-determined.

Is it then any surprise when we learn that 30 years after 1984, the trial of a high-ranking Congressman such as Jagdish Tytler is only just recommencing? Or that the possibility of a case against Kamal Nath (who was at the head of a mob that burnt two Sikhs to death and was witness to their agony over several hours as they lay dying) does not seem likely? That Bhullar should hang before Kamal Nath or Tytler may not be a travesty of law, but it is a travesty of justice.

About The Author

Hartosh Singh Bal