Kathua Verdict: Do We Need a Debate on Death Penalty for Convicts?

Family wants death penalty for the convicts, but the judge’s decision shouldn’t be second-guessed in such cases.

Judge Tejwinder Singh (centre) did not sentence any of the men convicted in the Kathua rape and murder case to death.

(Photo: Kamran Akhter/The Quint)

Is justice served if the courts do not order capital punishment for people convicted of gruesome crimes?

The special court at Pathankot delivered its verdict in the Kathua rape and murder case on Monday, 10 June. The judgment of the court was anxiously awaited throughout the country, which had been shocked by the horrific nature of the crime – kidnapping an eight-year-old Bakarwal girl, confining her to a ‘Devasthan’ (Hindu prayer hall) where she was gang-raped, and then brutally murdering her, all to drive the minority community out of the region.

Moreover, there had been concerted attempts to obstruct justice in the case, including a botched-up initial investigation, rallies in support of the perpetrators, and the blockading of the courts when the police tried to file a charge sheet. These factors meant all eyes were on the court to see if justice would be done.

Three of the six accused on trial – Sanji Ram, SPO Deepak Khajuria and Parvesh Kumar – were convicted of conspiracy to commit and commission of gang rape and murder (among other offences); while three police officers were convicted of evidence tampering. Sanji Ram’s son Vishal Jangotra, was acquitted.

Too caught up to read the whole story? Listen to it here:

Judge Tejwinder Singh sentenced the three police officers to five years imprisonment, but for the other three convicts, prescribed life imprisonment for the conspiracy and murder charges, as well as 25 years imprisonment for the gang rape charges. The sentences for other offences such as kidnapping and wrongful confinement are for lesser terms.

But was this enough?

A Family’s Anguish

The trial was conducted within a reasonable time, there were no undue delays, and thanks to the transfer to the Pathankot court, no problems with the prosecution or tampering with witnesses and evidence.

Even so, the family of the eight-year-old victim has questioned the quantum of punishment for the main accused. Speaking to The Quint’s Aishwarya Iyer, her mother plaintively asked:

“She was killed in the most brutal way possible, how is this punishment enough for that brutal attack? How?”

Her father also questioned the sentence, asking “How is this enough punishment? Do they not know how she was abducted and murdered?” Her brother said he was happy with the verdict but had thought at least one of the men responsible would hang for the horrific crime.

A similar sentiment was also expressed by the girl’s ‘adoptive’ mother (she resided with her maternal aunt and uncle in Rasanna, rather than travel with her biological parents), who said “I wanted justice for my child… But this punishment is not enough.”

So was the decision of the trial court wrong? Should the judge have ordered death penalty for the men who were convicted of murder – Sanji Ram (the architect of the plot which was meant to drive the Bakarwals from the area), Deepak Khajuria and Parvesh Kumar?

Quite frankly, the answer is that we don’t need to get into this debate.

A Reasoned Order?

The trial court judgment delves into the issue of sentencing from para 353 onwards (pg 419 of the judgment). The prosecutors had asked for the death sentence for these three convicts, on the basis that was a ‘rarest of rare case’, where “the faith of the minor girl has been betrayed by these accused persons.”

The defence argued that the court needed to consider relevant mitigating factors when deciding whether or not a case could be classified as ‘rarest of rare’, and relied on previous Supreme Court judgments in Rahul @Raosaheb vs State of Maharashtra (2004) and Ramnaresh vs State of Chhattisgarh (2012) to argue against the death penalty for them.

The judge then went on to review the key judgments of the Supreme Court on sentencing in such cases, and called out the following principles:

• Life imprisonment is the rule and death sentence is an exception (State of UP vs Satish, 2005);
• It is obligatory on the trial court to consider possible rehabilitation and reformation of the convict and the possibility they can still become a useful member of society if given the chance (Rameshbhai Chandubhai Rathod vs State of Gujarat, 2011);
• The discretion granted to the courts in awarding a death sentence must be exercised very cautiously, given the irrevocable character of the death penalty (State of Maharashtra vs Goraksha Ambaji Adsul, 2011); and
• Where the conviction largely rests on circumstantial evidence, life imprisonment is an appropriate sentence (inference drawn from Ramesh vs State Through Inspector of Police, 2014).

Judge Tejwinder Singh weighed the aggravating and mitigating factors and sentenced them to life imprisonment, keeping in mind “that accused persons are not a previous convict [sic] and there is every possibility to rehabilitate and reform them” (see paragraph 364 of the judgment, at pg 425).

Pg 425 of the judgment.(Photo: Aishwarya Iyer/The Quint)

The Law on Death Sentences and a Judge’s Duty

What this goes to show is that the judge didn’t just come up with an arbitrary or ill-considered decision. He performed the exercise of weighing aggravating and mitigating factors in accordance with precedent, and by setting out the reasons for the award of sentence, fulfilled his obligations under Section 354(3) of the Code of Criminal Procedure, 1973.

Once a judge has done these things, there really should be no attempt to second-guess their decision to not order capital punishment.

This is not to say that judgments can’t be criticised – it is entirely legitimate to critically analyse decisions of the court and point out the flaws in them. However, such criticism should only arise in cases where the judge has failed to do something: failed to consider a relevant point of law, failed to consider relevant facts, failed to make a decision they were supposed to, failed in their duty to follow rules and procedures.

Debates over interpretations are also entirely acceptable, provided we’re talking about issues where the counter-point is a well-founded interpretation that runs differently from what the courts have said.

But the decision of a judge to order life imprisonment is a different matter. As judge Singh rightly observed, life imprisonment is the norm, while the death penalty is the exception, and can only be imposed in the ‘rarest of rare cases’.

This has been crystallised as the position of law ever since the landmark 1980 Supreme Court decision in Bachan Singh. If a judge decides to go with life imprisonment for a convicted murder, it does not mean that they have taken a positive decision not to award the death penalty – that cannot be the case as the death penalty is not supposed to be the default option.

Note that the criminal law amendment allowing the death penalty for rape of girls under the age of 12 does not apply in this case as it came in after the case (and in any case does not apply to Jammu & Kashmir) and even if it did, this doesn’t make the death penalty the norm either.

The distinction between the judge’s options is made clear in the language of Section 354(3) of the CrPC, which says that judges do need to state the reasons for the sentence awarded in cases where the punishment is death sentence or life imprisonment; but highlights that “special reasons” only need to be recorded if the judge has decided to go with capital punishment.

Death penalty jurisprudence from Bachan Singh onwards has also reiterated time and time again that the decision to award the death penalty is one of discretion, and that there is no definition of ‘rarest of rare’.

In such circumstances, is it appropriate to argue that no, a case does actually fit within the standard of rarest of rare, and so capital punishment must be the sentence rather than life imprisonment?

The answer has to be no.

Is This About Being Pro or Anti Death Penalty?

Those in favour of the death penalty may believe that it should be an option on the table, but surely even they would agree that this great power needs to be exercised with great responsibility, that there need to be some safeguards on this power.

If a judge has decided not to exercise that power and responsibility, this does not mean they are repudiating the idea of the death penalty itself, just that there are mitigating factors to be considered, such as the possibility of reform, which should be paramount in a justice system, you’d imagine.

The counter to that could of course be the traditional argument of the death penalty as a deterrent, recently endorsed by Prime Minister Narendra Modi, .

However, even the Law Commission of India, which had previously supported the death penalty, noted in its 262nd Report in 2015 that the “death penalty does not serve the penological goal of deterrence any more than life imprisonment.”

This is particularly so since life imprisonment under Indian law means imprisonment for the whole of the convict’s life, with extremely limited chance of any remission whatsoever.

If the death penalty is not a deterrent, as significant research over the years has indicated, then what else justifies capital punishment? Is it about retribution? Is it about vengeance?

Retribution is understandable but is a nebulous thing, and it’s difficult how you could have a consistent standard for it. Punishment for crimes can certainly not be about vengeance. As the Law Commission observed:

“The notion of ‘an eye for an eye, tooth for a tooth’ has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.”

The takeaway from this doesn’t need to be that the death penalty is wrong or unconstitutional. That is no doubt how those opposed to the death penalty would view things. But no matter which side of the debate you stand on, it is evident that this is not something that should be decided on an emotional basis, that it needs to be a decision made with absolute certainty.

That certainty cannot be imposed on a judge, even if there are cases with similar elements where the death penalty has been imposed, whether it be the brutal nature of the crime (like in the Nirbhaya case) or the betrayal of trust (the Dhananjoy Chatterjee case).

There’s no need to go into the merits of that decision, not just because there is no onus on the judge to justify their decision not to award the death sentence, but also because the decision to take a life is so fraught, it is not for bystanders to demand another person take that on their conscience.

Restraint is the Way

It is understandable that the family of the victim in this case want capital punishment given what they’ve gone through, but for anyone else to demand it runs uncomfortably close to baying for blood. Having a debate on it is not beyond the pale, but would become nothing more than a pointless battle between the pro and anti-death penalty lobbies since the judge has not failed in any duty.

The mother of the Kathua rape-murder victim is distraught. She has been repeatedly saying she wanted the culprits to be hung to death.(Photo: Aishwarya S Iyer/The Quint)

Thankfully, there have been few calls for the death penalty in this case and there have been no furious shouting matches on TV panels about it either.

This restrained reaction is perhaps a result of a number of factors, including the nomadic nature of the Bakarwal community (which makes mobilisation logistically difficult), an absence of frenzy-creation among the Muslim community, and a lack of support for the death penalty among many of those who had publicised this case previously.

It can only be hoped that this admirable restraint is maintained in the days to come, and we respect the decision of a judge not to wield a metaphorical axe for the sake or our own bloodlust, not just in this case, but elsewhere too.