Rarest of the rare: A legal lottery on life and death
Justice Frankfurter of the US Supreme Court once wrote: "A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." The phrase, rarest of the rare, when applied to capital punishment cases, has suffered the same fate.
On the day a court in Kerala ordered the death penalty for Greeshma, who had poisoned her boyfriend, a court in Kolkata ensured that Sanjay Roy, who was convicted of the rape and murder of a young doctor at Kolkata’s RG Kar Medical College and Hospital, escaped the noose.
This brings us to the question of what exactly is a "rarest of the rare" case that warrants the death sentence. The phrase comes from the 1982 judgment of the Supreme Court in Bachan Singh vs Punjab, which upheld the constitutionality of death sentences. Justice RS Sarkaria, writing for the majority, concluded: "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."
In the 40-odd years since the Bachan Singh judgment, the rarest of the rare formula has resulted in what judges have called a lethal lottery in executions. It is a rare sessions judge who resists the local outcry in cases that have attracted media attention.
But a sessions judge's verdict of the imposition of the death penalty is subject to confirmation by a high court. Any death sentence so confirmed is invariably appealed to the Supreme Court.
Even if such appeal is dismissed by the Supreme Court, the court has, by a judgment in the Mohammed Arif case, bound itself to orally hear for at least half an hour a review petition in open court.
It is only after every court option is closed that executive powers of remission and pardon are invoked.
The presidential power of pardon has often been coloured by the incumbent of the office. Presidents APJ Abdul Kalam and Pratibha Patil were not inclined to reject pleas for mercy and simply refused to clear such files. President Pranab Mukherjee, however, went by ministerial advice and routinely signed clemency files without exercising any personal discretion.
The decadal delay in disposing of clemency applications resulted in the Supreme Court interdicting several executions in the Shatrughan Chauhan case of 2014.
Thus, from a sessions judge's pen to the hangman's noose, there are a multiplicity of files and procedures that may delay or divert the ultimate execution of a death sentence.
Faced with these vagaries, the Supreme Court came out with a third way in a case that I had argued for the prosecution. In the 2009 case of Swamy Shraddananda, Justice Aftab Alam, writing for a three-judge Bench, took note of the fact that many life sentences were commuted after 14 years of imprisonment. While a death sentence may not be warranted, 14 years was simply inadequate in particularly heinous murders.
The judgment records: "A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, ie the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all."
It is in the above background of Supreme Court judgments that one must read and applaud Judge Anirban Das, who ruled, "Given these considerations, it would be inappropriate to accede to the prosecution's request for the death penalty. While acknowledging the immense grief and suffering of the victim's parents, for which no sentence can provide complete solace, the court's duty is to pass a sentence that is proportionate, just and in accordance with established legal principles. In conclusion, this case calls for a carefully considered and appropriate sentence that balances the gravity of the crime with the principles of justice, rehabilitation and the preservation of human dignity. The court must resist the temptation to bow to public pressure or emotional appeals and instead focus on delivering a verdict that upholds the integrity of the legal system and serves the broader interests of justice."
Following an announcement by Chief Minister Mamata Banerjee, the West Bengal government has approached the Calcutta High Court, seeking imposition of the death sentence to Sanjay Roy.
In the Kerala case, the death sentence awarded to Greeshma will be subject to a reference to the high court. I would be surprised if the life of either accused ultimately ended on the hangman's noose.
But then, the lethal lottery of life and law has its own way of surprising practitioners and petitioners alike.