A Capricious Noose – An Analysis of the December 16 gang rape Verdict

The sentencing order in the December 16 gang rape case (State v. Ram Singh and Ors , SC No. 114/2013) highlights various problems with India’s death penalty jurisprudence. In this piece, I make and substantiate this argument by first describing the broad contours of, and debates within, India’s death penalty jurisprudence. I then analyze the sentencing order in Ram Singh and argue that not only was the legal reasoning in the verdict flawed, but that the sentencing order serves as a window to larger concerns with the death penalty itself..A. Hanging in the Balance: the Rarest of Rare Standard.Let me start with the legal landscape in which the question of the death penalty in Ram Singh came to be decided. Though Bachan Singh v. State of Punjab[1] was neither the first nor the last case where the constitutionality of the death penalty was challenged, it remains the controlling precedent on the issue and is the starting point of this analysis..1. Bachan Singh.In Bachan Singh the constitutionality of the death penalty was challenged on both substantive and procedural grounds. A 5-judge bench of the Supreme Court held that the death penalty passes constitutional muster on substantive grounds. The procedural challenge was that the sentencing regime under Section 354(3) invests courts with “unguided and untrammeled discretion and allows death sentence to be arbitrarily or freakishly imposed.”[2] The Court reconciled the continuation of the death penalty with the potential for its arbitrary use by walking the tightrope between too much judicial discretion on the one hand and too little on the other, both of which could lead to arbitrariness and unfairness in sentencing..On the one hand, the Court refused to provide a list of rigid guidelines or categories of cases for the award of the capital punishment. It held that a mechanical approach which does not take into account “variations in culpability” even within a single type or category of offence, would “sacrifice justice at the altar of blind uniformity” and would cease to be a judicial determination of the sentence, itself a pre-requisite for the due process requirement to be met.[3].While eschewing a mechanical approach, the Court laid down the following principles to guide sentencing discretion in capital cases:.a. In a case of murder, life imprisonment would be the rule and the death penalty an exception..b. As an exceptional punishment, courts were required to calibrate the punishment such that “[t]he extreme penalty can be inflicted only in gravest cases of extreme culpability.” To do so, courts would examine the aggravating and mitigating circumstances in a case such that “in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender.” Recognizing that there was a danger of this individualized sentencing degenerating into an arbitrary system, the Court prescribed a process of principled sentencing, whereby the determination of aggravating and mitigating factors would be controlled, not by the predilections of individual judges, but by a determinate set of standards created through the evolutionary process of judicial precedents..c. Only if the analysis of aggravating and mitigating circumstances provided “exceptional reasons” for death, would death be awarded. According to the Court, “[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”.2. Rarest of Rare Take Two: Machhi Singh.In 1983, a 3-judge bench of the Supreme Court in Machhi Singh v. State of Punjab[4] elaborated upon the Bachan Singh “Rarest of Rare” formula. Bachan Singh had specifically refused to list out categories of cases which would fall within the ambit of rarest of rare. Instead, the Court had emphasized on individualized but principled determinations of whether each case fell within the rarest of rare category. Machhi Singh however listed out 5 categories of cases in which the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty.” Further, though Machhi Singh paid lip service to the Bachan Singh injunction to consider the circumstances of both the crime and the criminal, the Machhi Singh categories focused only on the crime and not on the criminal.[5].Machhi Singh introduced an inconsistency that now lies at the heart of death penalty determinations by courts. By focusing only on the crime and not the criminal, the case spawned a death penalty jurisprudence where the nature, manner and motive of the crime took precedence over the possibility of reform of the criminal. A contrary line of cases referred back to the Bachan Singh injunction to give due weight to both the crime and the criminal, and to award the death penalty only when the alternative punishment of life was “unquestionably foreclosed.” In Swami Shardhananda v. State of Karnataka,[6] a 3-judge bench pointed to the inconsistency between the Bachan Singh and Machhi Singh formulations. The Court attempted reconciliation by stating that the Machhi Singh factors were a partial illustrative list of useful guidelines but were by no means “inflexible, absolute or immutable.” However, as was pointed out by the Court itself in Santosh Bariyar v. State of Maharashtra[7] and Sangeet v. State of Haryana,[8] many cases have focused only on the crime to the exclusion of the criminal in awarding the death penalty. Bariyar listed 6 cases and Sangeet mentioned an additional 5 where the Bachan Singh injunction to focus on both the crime and the criminal was violated..3. The “Lethal Lottery” .Apart from a confusion of principles in the application of the rarest of rare formula, the Court has also expressed concern in cases like Aloke Nath Dutta v. State of West Bengal,[9] Swamy Shraddhananda v. State of Karnataka;[10] Bariyar, Farooq Abdul Gafoor v. State of Maharashtra;[11] and Sangeet, that the application of the death penalty is arbitrary, judge-centric (as opposed to principled) and based on the “personal predilection of the judges constituting the bench.”[12] These judgments and other writings have enumerated cases where different benches have reached diametrically opposite results even though the facts were similar.[13] As such the Court has been concerned that the capital sentencing regime may violate the equal protection guarantee under Article 14 of the Indian Constitution.[14] In a remarkably candid opinion delivered last year, the Supreme Court admitted that because of the uncertainties in India’s death penalty jurisprudence, the Court was unable to determine whether or not in the present case the option of punishment for life was unquestionably foreclosed.[15].4. Bariyar to the (Failed) Rescue.In order to bring order to chaos, Bariyar in particular attempted to derive further guidelines from Bachan Singh on how capital sentencing ought to be conducted. The Court focused on the requirement that the alternative punishment of life has to be “unquestionably foreclosed,” and drew upon the Bachan Singh endorsed standard that the state has to lead evidence to show that the convict cannot be reformed or rehabilitated and thus constitutes a continuing threat to society. Since the death penalty is to be awarded only in the rarest of rare cases, Bariyar also required judges to survey a pool of similar cases to determine whether this case was rarest of rare or not. The Bariyar approach thus places a burden on the state to justify, not only through arguments, but through evidence, that the exceptional penalty of death is the only option in the case. However, Bariyar has rarely been followed, which is itself a testament to the capricious nature of the death penalty jurisprudence in India..5. Gurvail Singh’s “Procrustean Cruelty”.A 2013 judgment of the Supreme Court provides a different take on the Rarest of Rare test. In Gurvail Singh @ Gala v. State of Punjab,[16] the Court acknowledged that due weight had to be given to the circumstances of the crime as well as to the criminal in determining the appropriate sentence in capital cases. However, in a bewildering move, the Court set out a two step process to determine whether the death penalty ought to be awarded or not..Step 1 involves evaluating the aggravating and mitigating circumstances in the case. If the aggravating circumstances outweigh the mitigating circumstances then the sentencing court should proceed to Step 2. Step 2 is the Rarest of Rare analysis, which according to the Court “depends on the perception of the society and is not ‘judge-centric'”. The Rarest of Rare test according to Gurvail Singh 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.”.In delinking the analysis of aggravating and mitigating circumstances from the Rarest of Rare analysis, Gurvail Singh fundamentally misunderstands and misapplies Bachan Singh. First, as per Bachan Singh, the Court has to take into account the circumstances of the crime as well as the criminal, and give due weight to both the aggravating and mitigating factors in the case. Upon doing this analysis if the Court finds that the case is of such an exceptional nature that the alternative of life is “unquestionably foreclosed” then, in such limited and exceptional circumstances, the case merits the death penalty. Therefore, evaluating the aggravating and mitigating circumstances of a case is the method of determining whether the case falls within the rarest of rare category. It is not an adjunct or a precursor to the Rarest of Rare analysis..Second, Bachan Singh specifically and repeatedly refused to create categories of cases which would merit the death penalty. Each case, irrespective of the type of crime it dealt with, had to be evaluated on its own terms. The court rejected categorization of types of crime as the basis for the award of the death penalty in the following strident words,.“Even within a single-category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts…. [A] standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardization degenerating into a bed of procrustean cruelty.”.By focusing on the type of crime as the basis for the rarest of rare analysis, Gurvail Singh therefore flies in the face of the Bachan Singh standard..Third, Gurvail Singh suggests that the problem of the “judge-centric” nature of the capital sentencing can be overcome by focusing on “society’s abhorrence, extreme indignation and antipathy to certain types of crimes.” Bachan Singh clearly rejected this approach and exhorted that,.“Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion…. When Judges…take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large … that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the Community ethic. The perception of ‘community’ standards or ethics may vary from Judge to Judge….Judges have no divining rod to divine accurately the will of the people.”[17].On all three counts therefore, Gurvail Singh was clearly decided per incuriam. It is particularly troubling therefore, that of the plethora of cases available to the judge in Ram Singh, he chose to rely on Gurvail Singh for his understanding of the rarest of rare formulation..B. Ram Singh v. State: A flawed judgment, a flawed jurisprudence.The application of the Gurvail Singh formulation in Ram Singh not only reveals problems with the legal analysis in Ram Singh itself, but is also an important window into the problems with Indian jurisprudence on the death penalty in general..1. The Aggravating/ Mitigating Analysis and the Problems of Judicial Incoherence.The defense presented the following mitigating circumstances to argue against the death penalty:.1. Life imprisonment is the rule and death is an exception. There are no special reasons to award the death sentence in this case..2. The young age, socio-economic circumstances and clean antecedents of the convicts point towards the possibility of reform..3. The presumption of innocence is in the favour of the convicts..4. The convicts were convicted only on the ground of conspiracy and not for their individual acts..5. Factors relating to individual culpability and circumstances. These were that (a) Mukesh and Pawan were drunk at the time of incident; (b) Mukesh was driving the bus throughout; (c) Mukesh had helped out the system by admitting that he was present inside the bus..The court rightly rejected the contention that any presumption of innocence exists in favour of the convicts after they have been found guilty. The judge also clarified that the convicts were found guilty not only of conspiracy but also for their own overt acts..Beyond this however, the Court’s analysis unravels. The Court never discusses the implications of life being the norm and death the exception. It provides no analysis, let alone the “exceptional reasons” as required by Bachan Singh, for whether and why the option of life was “unquestionably foreclosed”. This lack of concern for the core aspect of the Bachan Singh test comes out most clearly in the Court’s analysis of mitigating and aggravating circumstances..The Court holds that each of the mitigating circumstances of young age, socio-economic conditions and clean antecedents were not determinative factors for deciding against the death penalty. It cites cases where the Supreme Court had awarded the death penalty despite these factors being present (but does not cite any of the plethora of cases where such factors were used to award life imprisonment!)..Since these factors were not individually determinative, the Court inexplicably decides that they did not have to be taken into consideration at all, either individually or cumulatively. That is, the Court equates the non-determinative nature of individual mitigating factors with their irrelevance to the entire analysis. For example, it does not consider whether or not in this specific case the young age of some or all of the accused points to the possibility of reform.[18] Even the case that the Court itself relies on, Gurvail Singh, had held that “[a]ge definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind.”.The Court fails to appreciate that aggravating and mitigating circumstances are not determinative factors but evaluative criteria. The judge has to give due consideration and weight to these factors, and has to analyse reasons for and against the death penalty by reference to these factors, which Ram Singh completely fails to do..On the other hand, the Court mentions the following as aggravating factors:.1. The “exceptional depravity” and “extreme brutality” of the crime..2. The manner of commission of the crime aroused “intense and extreme indignation of society.”.3. The “extreme misery” suffered by the prosecutrix..4. “Grave impact” of the crime on the “social order.”.The Court does not discuss any of these factors and engages in no analysis on how much weight, if any, ought to be accorded to each of these factors. Contrary to its approach to mitigating factors, the Court simply assumes the relevance of each of these aggravating factors..However, just as any single mitigating factor is not determinative, so also each of these aggravating factors is not conclusive.[19] Each factor needs to be given due consideration and evaluated in light of possible mitigating factors, an analysis that the Court fails to undertake..Since all the mitigating factors have been dismissed, the Court finds that the aggravating factors outweigh the mitigating factors. Completely absent from this analysis is any discussion on whether the option of life is “unquestionable foreclosed.” When Mukesh raises the plea that he cooperated with the Court by admitting his presence on the bus, the judge rejects this as a mitigating factor by stating that Mukesh’s admission was made “probably to seek misplaced mercy.”[20] Bachan Singh had endorsed the standard that the State has to lead evidence to show that there is no possibility of reform. Rejecting a mitigating standard on a conjecture, when coupled with the dismissal of mitigating factors in general, and the unquestioning acceptance of aggravating factors shows a disregard for the fundamental principle of death penalty jurisprudence..Absent too is any discussion of the individual culpability or specific circumstances of each of the accused. The Court never addresses the points raised by some of the accused regarding their individual roles in the crime. Again, Bachan Singh’s exhortation to calibrate the award of punishment so as to fit the degree of culpability is never considered..My argument is not that if done properly the analysis would necessarily have pointed to a different result. Rather, I am concerned that in grave matters of life and death, the Court neither engages in the required analysis nor has the right guidance from superior courts for undertaking the analysis. Courts can pick and choose their law from a menu of competing formulations of the rarest of rare doctrine and contradictory standards of which factors are relevant and/or determinative aggravating and mitigating circumstances. It is these inconsistencies that foster the incoherence and “judge-centric” nature of India’s death penalty jurisprudence. The capriciousness of the death penalty runs so deep that the same judge who in Shradhananda questioned Machhi Singh’s departure from the Bachan Singh standard, used Machhi Singh to justify the death penalty for Ajmal Kasab. The same judge who presided over the bench that handed down Sangeet, which questioned the crime-centric focus of many death penalty decisions, also handed down Gurvail Singh which re-inscribes such a crime centric focus upon capital sentencing..2. Death Penalty and Disparate Impact.Apart from the problems of incoherence and inconsistencies in the death penalty jurisprudence in general and the specific analysis in Ram Singh in particular, the case also raises important concerns with the quality of legal representation received by convicts in death cases. Anyone with passing familiarity with death penalty jurisprudence will immediately observe the divergence between Bachan Singh and Gurvail Singh. I do not know if the application of the Gurvail Singh standard was ever challenged in the arguments before the Court, but it appears from the judgment that no reservations were expressed about the use of Gurvail Singh as precedent. Should irrevocable determinations of life and death be decided on the basis of which lawyer you can afford or are appointed? This concern highlights the likely disparate impact of death adjudication on the poor. In light of a very weak legal aid system, the criminal justice process is, as a whole, skewed against the poor. In the absence of clear guidance from the higher courts on capital sentencing, the award of the death penalty is also likely to discriminate against those who cannot afford adequate legal representation to make the best case for why the death penalty ought not to be awarded. This problem is likely to be compounded by an insistence on fast tracking where ill-trained and ill-prepared lawyers have to argue before inadequately guided judges on an incoherent area of law, without adequate time for preparation..3. A Shock to the Community’s Conscience: Public Opinion and the Death Penalty.Ram Singh also highlights other grave concerns with India’s death penalty jurisprudence. The case follows a line of Supreme Court decisions, starting with Machhi Singh, which hold that “shock to the collective conscience of the community” and “society’s cry for justice” are relevant factors in determining whether or not the death penalty should be awarded in a particular case. As a court of law a sentencing court has neither the means nor the need to look to public opinion in determining the adequate sentence. A cohesive and coherent “public opinion” is not only a fiction, but also reflects whom a court considers its relevant public. The opinion of members of the public can both be capricious, and be dependent upon the information that the “public” is given. As Bariyar recognized, there is a “danger of capital sentencing becoming a spectacle in media. If media trial is a possibility, sentencing by media cannot be ruled out.”.A court is a court of law not a court of public opinion. Of course judges are creatures of society and will be influenced by it, but the encoding of public opinion into the framework of capital sentencing gives it a prescriptive weight that is problematic. If the opinion of the public matters to questions of sentencing, then courts are the wrong institutions to be determining sentence. Parliament or lynch mobs are more apposite..Public opinion can also be shaped by a variety of factors, not all of which are relevant for sentencing purposes. The December 16 gang rape resulted in a huge outcry for a variety of reasons which are still being debated. At the same time, many similar or arguably more grotesque gang rape and murder related incidents pass us by, buried in the inside pages of the newspaper. How does one decide, based only on dominant voices as amplified by a 24/7 media, which amongst these is are the “rarest of rare” cases?.4. The Ostrich Move: Deterrence and Retribution .Beyond relying on public opinion, the Court provides deterrence and retribution as rationale for awarding the death penalty. However, equating deterrence with the death penalty and retribution with justice masks deeper questions that need to be asked of our legal and social set-up..Death as Deterrence.There is no proof that the death penalty has any deterrent effect on crimes. More than two-thirds of the countries in the world have abolished the death penalty, in whole or in part. They do not report a rate of crime higher than those countries that retain the penalty. The US is a particularly telling example. There, some states retain the death penalty and others have abolished it. However, in otherwise comparable circumstances, the states that have abolished the death penalty actually show a lesser rate of capital crimes than those that continue with the punishment.[21] Further, countries that have abolished the death penalty have not witnessed a spike in capital crimes after abolition.[22].Deterrence depends on the swiftness and certainty of punishment, not its severity. By equating deterrence with harsh punishment, we end up avoiding hard questions about policing, investigation, prosecution and adjudication of crimes. A recent survey found that of the 203 previous rape cases tried before the same judge who presided over Ram Singh, only 2 previous cases had ended in conviction.[23] The study and other works have highlighted a plethora of problems with the way the legal system deals with rape, including misogynistic police attitudes, shoddy investigation, use of the two-finger test, problems with judicial attitudes towards rape and rape survivors, the hostile courtroom environment, and pressures for compromise, all of which cumulatively result in unsuccessful prosecutions. In that sense the adjudication in Ram Singh had many positives, including good investigation and prosecution, along with the use of forensic evidence to build a strong case. Deterrence is more likely to be achieved by translating the methods applied in this case to every case, regardless of whether the society is outraged or the crime fits perfectly into all stereotypes and myths surrounding rape..Retribution as Justice .Similarly equating retribution and justice takes focus away from entrenched injustices in society which lead to sexual violence in the first place. Retributive theories of punishment work on the assumption that crime is a disruption of social harmony, and that this harmony will be restored and justice will be achieved by visiting an equally strong punishment on the offender. In restoring status quo ante, however, we often forget that such status quo is not necessarily harmonious or just.. Violence of the Status Quo.In the specific context of rape, this problem with equating retribution with justice comes through in Ram Singh which frequently refers to the convicts as “beasts” – deviants from the norm of human society. The convicts are “inhuman” – aberrations of nature rather than a part and parcel and reflection of society. Not only does the “beast” metaphor serve to de-humanize the convicts and make their “extermination” by the State more palatable, it also helps create a cognitive distance between the convicts and the rest of society such that we can lose sight of our own complicity in creating and supporting a rape culture that tolerates, condones and often celebrates sexual violence..Treating the convicts as deviants from the social norm allows shifting the blame for the violence squarely on them, such that justice is served simply by exterminating them and restoring the even tempo of society. The reality is that sexual violence is endemic in society rather than an aberration of the norm. Reports suggest that the accused were out that night purportedly with the idea of having “fun.” Sexual violence and brutalization was their idea of fun. Just as, we use the terminology of “eve-teasing” not harassment for the violence we perpetrate and tolerate on the streets. Just as, we condone the stalking and groping and leering in our movies as wooing and romance, as innocent “ched-chad.” In these quotidian forms of sexual violence we routinely treat women not as autonomous human beings but primarily as sexual objects for male pleasure. Cumulatively, the objectification of women and the logic of male sexual entitlement lead to a culture of tolerance and justification for sexual violence..This violence is not the special preserve of inhuman and beastly creatures. Sexual violence is embedded within. 98% of rape cases are committed within homes, within families, by neighbours and other acquaintances.[24] This is not even counting spousal sexual violence which the law does not even recognize as rape, to talk once more about male sexual entitlement. Till we address our rape culture we are not going to get even close to addressing the problems of rape. In that sense, justice will not be served by restoring social order and harmony, but by questioning and disrupting the underlying dominant narratives of violence..The rejection of the death penalty does not mean that the victim does not deserve justice. The argument against the death penalty is not an argument against punishment itself, but against equating justice with vengeance, and punishment with execution. Committing violence in the name of vengeance will not end violence. Others who kill often employ their own rationalizations (“fun”) to justify and excuse their acts to themselves and their relevant audience. How then, are we better than those that we seek to condemn? As a popular anti-death penalty saying goes, “How does killing people who kill people show that killing people is wrong?”.The author is an Assistant Professor at National Law University, Delhi. She can be reached at aparna.chandra@aya.yale.edu.[1] AIR 1980 SC 898.[2] Bachan Singh, at ¶ 17.[3] Bachan Singh, at ¶ 174. See also Mithu v. State, AIR 1983 SC 473.[4] AIR 1983 SC 957.[5] The Machhi Singh criteria were: Manner of Commission of Murder, Motive for Commission of murder, Anti Social or Socially abhorrent nature of the crime, Magnitude of Crime, and Personality of the Victim.[6] AIR 2008 SC 3040.[7] (2009) 6 SCC 498.[8] (2013) 2 SCC 452.[9] 2006 (13) SCALE 467.[10] AIR 2008 SC 3040.[11] JT 2009 (11) SC 47.[12] Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka, 2008 (10) SCALE 669.[13] Amnesty International India, Lethal Lottery- The Death Penalty In India (2008); S. Muralidhar, India’s Travails with the Death Penalty, 40 J. Indian L. Inst. 143 (1998); V. Venkatesan, Getting Judge-Centric, Frontline, Jan. 25, 2013 (interview with Justice A. P. Shah).[14] Bariyar (“[The] extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”).[15] Sangeet.[16] AIR 2013 SC 1177[17] See also Bariyar.[18] Bachan Singh had itself recognized the age of the accused as an “undoubtedly relevant circumstance[] and must be given great weight in the determination of sentence.” In fact, Bachan Singh had stated that “extreme youth can…be of compelling importance.”[19] For example in Panchhi v. State of U.P., the Court held that “[b]rutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the “rarest of rare cases” as indicated in Bachan Singh case.”[20] Interestingly Bachan Singh had specifically stated that “post-murder remorse, penitence or repentance by the murderer” are relevant factors for sentencing in capital cases.[21]Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates, Death Penalty Information Center, http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates#stateswithvwithout[22] See generally UN General Assembly Resolution 62/149, Moratorium on the Use of the Death Penalty, 18 December, 2007. (“there is no conclusive evidence of the death penalty’s deterrent value”).[23] S. Rukmini, Delhi Rape Case Judge Convicted Rarely, But Fingers Point at Police, Sept. 15, 2013, http://www.thehindu.com/news/national/delhi-rape-case-judge-convicted-rarely-but-fingers-point-at-police/ article5129701.ece[24] National Crime Records Bureau, Crime in India 2012, Offenders Relation & Nearness to Rape Victims (State, UT & City-wise) at www.ncrb.gov.in