Anticlimax has become the boon companion of the Supreme Court. When the court reopened on July 18 after its summer vacation, it was shadowed by the cloud raised by stays granted on more than 20 executions of condemned murderers throughout the country. The flurry of stay orders stemmed from a May 6 ruling by a three-judge bench headed by Chief Justice Y.V. Chandrachud staying the hanging of Deen Dayal (INDIA TODAY, June 15).

Deen Dayal had appealed against his execution on various grounds, including his old age, and also challenged Section 354(5) of the Criminal Procedure Code which prescribes death by hanging, saying that this was a cruel and unreasonable punishment violative of his fundamental rights.

Chandrachud surprised everybody after the court reopened by saying that he had issued notice on the ground of Deen Dayal’s old age, and not on the method of execution. Clearly, Vacation Judge A. Varadarajan, who had granted most of the stays, had misunderstood Chandrachud’s order, which did not specify the ground on which Deen Dayal’s execution was being stayed. “It would have been better if notices were issued confined to specific grounds,” says senior lawyer Soli Sorabjee.

Nevertheless, the following day Chandrachud backed down a little, and listed hearing of the bunch of petitions challenging hanging as a method of execution on August 2.

Indecision: The move immediately drew criticism from a cross-section of legal opinion, which saw in the imbroglio over hanging a symptom of the court’s continuing indecision about capital punishment.

It took the court, for instance, three years after the Bachan Singh case, which held that the death penalty was constitutional and should be imposed in the ‘rarest of rare’ cases, to draw a dividing line between death and life imprisonment. On July 21 a three-judge bench headed by Justice Murtaza Fazal Ali spelt out for the first time the criteria for determining the ‘rarest of rare’ cases.

Confirming the death sentence on three Punjab murderers who had killed 17 people in 1977, the judgement, written by Justice M.P. Thakkar, said that the death penalty should be awarded when an extremely uncommon crime rendered life imprisonment inadequate. The community’s collective conscience might be “so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death sentence.”

Secondly, the judges said, the court must ask itself whether the circumstances of the crime were such that there was no alternative to imposing the death sentence, “even after according maximum weightage to the mitigating circumstances which speak in favour of the offender”.

Guideline Verdict: As examples, the judges listed ‘rarest of rare’ crimes like extremely brutal, grotesque or diabolical murder under “manner of commission”; total depravity and meanness, as for instance by a hired assassin, under “motive for the commission of the murder”; anti-social murders, like those of dowry victims, or abhorrent murders of members of a minority community or socially weaker victims; under “magnitude of crime”, mass murders or murder of all members of a family; and under “personality of victim of murder”, innocent children, helpless persons who are under the murderer’s thrall, or public figures respected by the community.

The ruling helped dispel some of the mist enshrouding the ‘rarest of rare’ principle, which—it may be argued—could have been subjectively interpreted by different judges.

According, to the guideline verdict, the murders of the Joshi and Abhyankar families in Pune, Rajendra Jakkal, Munawar Shah, Dilip Sutar and Shantaram Jagtap, would immediately merit the death penalty. But their executions have been temporarily put off because of the stay granted in May on the question of hanging.

Abolitionist lawyer R.K. Garg says that he would prefer instantaneous methods of execution like injection of poison into the condemned prisoner’s bloodstream, or the use of the electric chair. But fluctuating voltage in India precludes the use of the chair, while death by injecting poison has not been universally tried, the only case so far being convicted black murderer Charlie Brooks Jr’s execution by a lethal drug overdose in Texas in December last year.

Adds Garg: “The ‘rarest of rare’ test assumes that in normal cases the state is not permitted to be cruel in execution. But if the death penalty is tolerated in the rarest of rare cases, what degree of cruelty is permissible for the state, and why?”

The conundrum posed by Garg, who is arguing some of the pleas against hanging by rope, has however invited adverse reactions from other lawyers. Says senior lawyer F.S. Nariman: “You can’t kill a man by auto suggestion. I think we are too allergic to our own consciences. The public is only being confused by this endless debate. Why should we strain at the gnat and swallow the camel?”

Leading Supreme Court criminal law experts like H.R. Khanna, R.S. Sarkaria and S.M. Sikri have all been in favour of retaining capital punishment as a deterrent against crime. Elsewhere, too, the controversy over the death sentence has not died down. Last fortnight, the British House of Commons overwhelmingly voted out the re-introduction of capital punishment on a conscience vote, although the Thatcher Government was known to favour its reinstatement, while a little earlier the US Supreme Court ruled to restrict convicted murderers’ delaying tactics—a procedure often resorted to in India—and recommended the speedier executions of death-row inmates.

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