Opinion A grim responsibility

The Delhi High Court’s verdict affirming the death sentences of the 2012 Delhi gangrape convicts appears to hinge — disquietingly — on the public outrage and revulsion sparked by the crime. There is no doubt that the groundswell of anger provided a much-needed urgency to the public discussion on ways to address sexual assault and police reform. It is also true that in drawing an association between the death penalty and the need to assuage an inflamed popular sentiment, both the trial court and the Delhi HC have only added to a long line of court decisions that have equated “rarest of the rare” with heinousness. This was, however, not the Supreme Court’s intent when it first articulated the phrase in the landmark Bachan Singh vs State of Punjab. A case became rarest of the rare only when “alternative option(s) were unquestionably foreclosed”, the SC held. Justice P.N. Bhagwati then ventured to suggest that “merely because a murder is heinous or horrifying, it cannot be said that death penalty is proportionate to the offence”. The Supreme Court, though, chose not to lay down exhaustive guidelines as to what constituted a “rarest of the rare” case in Bachan Singh. The court did not want to “fetter judicial discretion”, undoubtedly to ensure that subsequent cases saw the most humane application of death penalty laws.

Yet, several subsequent judgments have handed down death sentences when the offence has shocked the “collective conscience of the people”. Such a judicial approach raises questions. Is it possible, for instance, to guard the justice process from being influenced and pressured by a passionate reaction that has shaded into an illiberal clamour for vengeance? As the Delhi gangrape protests also illustrated, such cases can become the pretext for the venting of demands for draconian laws and “tough” punishments.

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While the death penalty remains on paper, the judiciary should use it with utmost responsibility and careful consideration, taking into account the brutality of the offence as one factor among many. In October last year, the SC led by example, commuting the death sentence of Sushil Kumar — who murdered his wife and burnt her body in a tandoor— to life. At that time, the SC had suggested that brutality alone could not invite the death penalty. The prosecution failed to show there was “no chance of [Kumar] being reformed and rehabilitated”, the court said. The possibility of reform is an important but severely neglected aspect in the death penalty debate. The courts must demand higher standards and better reasons from the state as to why it seeks the death penalty.