Death Penalty : Karmaphalnyaya or the helplessness of the Judicial system ?

Adv. Ichalkaranjikar

What factors contribute to deciding on the Death Penalty ? Is it Karmaphalnyaya (Law of cause and effect of our Karma) or the helplessness of the Judicial system ?

The National Law Commission report for the year 2015 on death penalty has made some recommendations.

We all know that the most severe punishment is the death penalty. Under normal circumstances, if the accused does not get any stay order by running around to challenge the punishment in the High Courts, the sentences passed by the Sessions Courts are executed. The only exception is the death penalty.

In a case in which the Sessions Court has awarded the death penalty, even if the accused does not challenge it, the Sessions Court should refer it to the High Court for verification of the judgment on its own, a 2-Judge Bench of the High Court should deliberate on it and declare whether the death penalty is correct or incorrect. This is the laid procedure.

In the above mentioned report, some points were raised on the most severe of punishments. This article is based on those points.

1. Of the 1,512 cases, death penalty was upheld only in 65 and there were acquittals in 436 cases

According to the information provided by the Supreme Court, between the years 2000 and 2015, the Sessions Courts awarded the death penalty to the accused in many cases. There were 1,512 cases, in which the High Courts reheard the case and gave their verdicts. The High Courts confirmed 62.8% were accused in these cases; but, the death penalty was commuted.

Further, the High Courts also acquitted 28.9% of the accused. Retrospectively, by altering judgements, the High Courts established that the quality of judgments of the lower Courts had shortcomings.

Of the 1,512 cases, the death penalty was upheld in only 4.3% of cases. It can be broadly said that in a total of 1,512 cases, the death penalty was upheld for 65 people, while in 436 cases the accused (who were sentenced to death) were acquitted. Will anything be amiss if the common man is perturbed by the question, ‘Why did this happen ?’

2. Two different judgements in the same case – Is it the fault of the Judicial System or the prarabdha (Destiny) of the accused ?

We have an example of this nature. Harbans Singh, Mohinder Singh, Jita Singh and Kashmira Singh killed 4 people. Among these, Mohinder Singh was killed in a Police encounter. This left only three of the accused alive. The Sessions Court awarded the death penalty to all the three. The High Court upheld their death penalty.

A. Jita Singh appealed in the Supreme Court; but his appeal was rejected on 15.4.1976. Hence, the death penalty was upheld.

B. Kashmira Singh’s appeal was also heard by a separate Bench of the Supreme Court on 10.4.1977; the Bench commuted his death penalty to life imprisonment.

C. On 16.10.1978, the Supreme Court rejected Harbans Singh’s petition. In 1980, the Review Petition was also rejected. This meant that hanging Harbans became a certainty. He went ahead and appealed to the Honourable President for mercy. In August 1981, that too was rejected.

Jita Singh was hanged on 6.10.1981. Harbans Singh would also have been hanged the same day; but in the meantime, he again filed a writ petition before the Supreme Court. His only argument was, ‘The circumstances of the crime being common, if Kashmira Singh’s execution was commuted, Harbans Singh’s execution should follow suit’. At that time, the Supreme Court said – ‘Kashmira Singh has been spared the death penalty, while the same justice should be applied to Harbans, and his death penalty should be commuted to life imprisonment’. Once the Supreme Court dismissed the earlier petition, it had no jurisdiction to modify the penalty through the writ petition. Therefore, the Supreme Court ordered that the President should reconsider the matter, and until then, the death penalty should be stayed.

3. Two of the accused were awarded the death penalty, while the other two survived – is it because of the attitude of the Judges or destiny of the accused ?

What happened in this case is that the petitions of all these three accused came up for hearing before different Judges of the Supreme Court. It was a single crime in which 4 people had been killed. It was a collective crime committed by the four accused (of which three were alive). The role of all four during the crime was identical.

First, one criminal was shot dead by the Police, the second was found guilty and hanged after the trial. The remaining two survived; but they remained in prison.

Why did the two accused have to die in this case ? Did they suffer at the hands of Government agencies or was it as per their destiny or were they victims of human error ? And then, there are the other two who survived the gallows – was it because the Judges who handled their cases were good or was it because they were bad ? So also, does confirmation of the death penalty or commuting of the penalty depend on the Judge in whose Court the case is heard ?

4. What is the reason for the abolition of the death penalty ? Is it because of the skill of the lawyers who argued for the abolition, the mind-set of the Judges, the destiny of the accused or the cumulative effect of all ?

Professor Blackshield studied 70 judgments made between 1972 and 1976. In all these 70 judgments, the Supreme Court had to decide whether to retain the death penalty or commute it to life imprisonment. Professor Blackshield concluded that in the cases that came before Justice Vaidyalingam, Justice Dua and Justice Algiriswamy, the death penalty was largely upheld.

Death penalty was commuted to life imprisonment in 5 cases on the grounds that a lot of time had passed since the death penalty had been awarded, while the death penalty was upheld in 5 cases which knocked the doors of the Apex Court on the same grounds.
According to Professor Blackshield’s study, a total of 30 cases of capital punishment came up before a single Judge after the year 2000. In 14 of these cases, the death penalty was upheld.

Before these 14 cases had come to the Supreme Court, the High Courts had acquitted the accused in 2 cases and commuted the death penalty to life imprisonment in 2 cases.
The Supreme Court later declared that judgment in 5 of these 14 cases was not up to the mark and could not be relied upon.

In that case, how come the status quo of those judgments was retained ? Why did this happen ? Was it the skill of the advocates who argued these cases or was it because of the Judge’s own specific mind-set ? Was it because of the destiny of the accused ? Or was it the cumulative effect of all these ?

Which ‘My Lord’ will answer these questions ?

5. To give better justice, Judges must imbibe the Hindu culture and perform spiritual practice as well

If an answer to a question is not available in the Constitution or in previous judgments, our Judges study and seek the help of judgments given by foreign Courts. They study if any of such verdicts can be borrowed.

Normally this is a well-regarded procedure; however, how will a US court deal with Karmaphalnyaya ? If their Jesus has not taught them Karmaphalnyaya, it would not be reflected in their judgments, will it be ?

If we want to aim for the sky, shouldn’t we find our roots in our own soil ? And, instead of thinking that ‘this is how things will be’, should we not contemplate and make efforts so that things become better ?

– Advocate Virendra Ichalkaranjikar (President, Hindu Vidhidnya Parishad, 12.5.2022)

Note for seekers and request to readers and well-wishers

After reading this article, if Advocates or citizens (who have experienced anything in the process of justice as mentioned in the article) have something to contribute in this regard, they are requested to send their experiences to the following address. Your names will be kept confidential if you so desire.
Address : Advocate Nilesh Sangolkar, ‘Sukhthankar Retreat’, Flat no. AG-4, Chittar Bhat, Nageshi, Ponda, Goa – 403 401.
Contact number : 9595984844

Does confirmation of the death penalty or commuting it depend on the Judge in whose Court a case is heard ?