The murder of Graham Staines and his two minor sons was no less "brutal" or "barbaric" and no less of a "slur on the nation" than an honour killing. In both, the murderer sought to interfere with the fundamental constitutional rights of his victims. Yet, the Supreme Court advocated the death penalty in the honour killing case but only life imprisonment in the Staines case. There are strong moral reasons for abolishing the death penalty altogether. However, as long as it continues to exist on the statute books, it must be applied in a constitutionally consistent manner, an approach which must accord equal status to equal rights.

COMMENTARY

tactics, fraud or inducement in professing

Inconsistent Death Sentencing

and propagating their religion. Dara Singh, the prime accused, aided

in India by a mob of approximately 60-70 people, burned the three victims alive while they were sleeping in a station wagon, and

Abhinav Chandrachud thereby “punished” Staines for converting

The murder of Graham Staines and his two minor sons was no less “brutal” or “barbaric” and no less of a “slur on the nation” than an honour killing. In both, the murderer sought to interfere with the fundamental constitutional rights of his victims. Yet, the Supreme Court advocated the death penalty in the honour killing case but only life imprisonment in the Staines case. There are strong moral reasons for abolishing the death penalty altogether. However, as long as it continues to exist on the statute books, it must be applied in a constitutionally consistent manner, an approach which must accord equal status to equal rights.

Abhinav Chandrachud (abhinav.chandrachud @gmail.com) is with a law ﬁrm in the United States.

wo decisions of the Supreme Court in the ﬁrst half of this year present puzzlingly contradictory views concerning the application of the death penalty. In May 2011, the Court advocated the use of the death penalty against the perpetrators of “honour killings”.1 In doing so, the Court no doubt evaluated the depravity of the motive involved in committing an honour killing. Honour killings are motivated by a desire to punish a couple for exercising their fundamental right to personal liberty and constitutional privacy. If the death penalty must be awarded in any case at all, awarding it in those cases where the murderer’s motives are tainted by a depraved desire to punish the exercise of sacrosanct fundamental rights is perhaps justiﬁed. However, only a few months earlier, in the infamous Graham Staines murder case,2 the Supreme Court seemed to take an entirely opposite view. There, the Court declined to apply the death penalty against a man who murdered a Christian missionary and his two minor sons for converting “poor tribals” to Christianity, despite the fact that the right to profess and propagate religion is considered “fundamental” by the Constitution. Both cases stand in stark contrast to one another and tend to obscure the death penalty doctrine in India.

The Graham Staines Case

In Dara Singh vs Union,3 the Court considered an appeal ﬁled by a man accused of murdering a Christian missionary, Graham Staines, and his two minor sons, Philip

(10) and Timothy (6). The Supreme Court’s decision was handed down on 21 January 2011, a day prior to the 12th anniversary of the murder. Staines was engaged in professing and propagating Christianity by conducting a series of programmes at Manoharpur, a remote tribal village in the interior of Orissa. The Court did not appear to have found any evidence that Staines or his two minor sons were using coercive

July 23, 2011

“poor tribals” to Christianity. The trial court sentenced the accused to death. The high court held that there was no evidence on record to demonstrate that the victims’ deaths were caused by Dara Singh alone, and it accordingly reduced the death sentence to life imprisonment.4 On appeal, the Supreme Court upheld the conviction of the accused, and refused to apply the death penalty. However, in a controversial statement, which was later expunged5 from the record, the Court cited the fact that the accused was “teach(ing) a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity” as part of its reasoning for refusing to apply the death penalty.

In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the high court and modiﬁed the sentence of death into life imprisonment with which we concur.6

The Court also added:

It is undisputed that there is no justiﬁcation

for interfering in someone's belief by way of

'use of force', provocation, conversion, in

citement or upon a ﬂawed premise that one

religion is better than the other.7

These controversial remarks were eventually expunged from the record and, seeking to clarify its judgment, on 25 January 2011, the Court replaced the lines reproduced above with the following statements:

However, more than 12 years has (sic) elapsed since the act was committed, we are of the opinion that the life sentence awarded by the high court need not be enhanced in view of the factual position discussed in the earlier paras....There is no justiﬁcation for interfering in someone's religious belief by any means.8

Accordingly, despite expunging the controversial statements from the record, in the end the Court declined to apply the

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death penalty in this case, for the reason that more than 12 years had elapsed since the crime was committed, and in the light of the “factual position”.

The Bhagwan Dass Case

Only a few months later, the Court appeared to take a contradictory view in interpreting the test for the application of the death penalty. In Bhagwan Dass vs Delhi9 (decided on 9 May 2011), the Court considered an appeal ﬁled by a man accused of strangulating his daughter to death with an electric wire. The murder was motivated by the fact that the daughter of the accused had left her husband and was living in a relationship with the son of the appellant’s maternal aunt. The trial court convicted the accused, in essence for having committed an “honour killing”, and the conviction was upheld by the high court. On appeal, the Supreme Court found “overwhelming” circumstantial evidence against the accused and upheld the conviction.

However, going a step further, the Court strongly deprecated the “brutal” and “barbaric” practice of committing an “honour killing”, i e, broadly speaking, a murder of someone belonging to one’s family or caste, for bringing “dishonour” to the family or community by marrying against their will or having an affair. While noting that such crimes were commonplace in Haryana, western Uttar Pradesh and Rajasthan, the Court condemned the practice in strong symbolic words, terming it a “slur on the nation”. Expressing its intent to “stamp out” such “outrageous, uncivilised behaviour” the Court advocated the use of the death penalty in honour killing cases, holding that they fall within the category of the “rarest of rare” cases deserving of the death penalty. “There is nothing ‘honourable’ in ‘honour’ killings”, said the Court, and “all persons who are planning to perpetrate honour killings should know that the gallows await them”. (Ironically, however, the Court only upheld a life sentence against the accused, and did not give any reasons why it refused to apply the death penalty in the case before it.)

Death Penalty in India

It has become trite to say that the death penalty in India is awarded only in the “rarest of rare”10 cases, although it is perhaps more difﬁcult to decipher the Court’s historical understanding of what cases are the “rarest of rare”. In arriving at its conclusion, the Court typically tries to identify cases of extreme culpability, looking to the circumstances of the offender, the circumstances of the crime, and any mitigating circumstances, in determining whether the case is ﬁt for the death penalty. Life imprisonment is the rule and death is the exception.11 In ascertaining whether or not to award the death penalty, the Court typically looks to the manner, motive, nature, magnitude and victim of the murder.12 Accordingly:

(1) Manner: Murders committed in an “extremely brutal, grotesque, diabolical, revolting or dastardly manner”, in a way that arouses “intense and extreme indignation” have been held to deserve the death penalty. In particular, murderers who (a) set the house of the victim on ﬁre with a view to “roast (the victim) alive”, (b) torture the victim with a view to killing him, or (c) cut or dismember the body of the victim to pieces in a “ﬁendish manner”, have been held to deserve the death penalty.

(2) Motive: Murders committed with a totally “depraved” or “mean” motive have been held to deserve the death penalty. In particular, this includes murders by (a) hired assassins, committed with a view to earning money,

(b) persons in positions of trust or dominance over the victim, committed with a view to gaining control or inheritance over property, (c) traitors to the “motherland”.

(3) Nature: Murders that are of an “anti-social” or “socially abhorrent” nature, committed under circumstances that arouse “social wrath”, have been held to deserve the death penalty. In particular, this includes murders committed to (a) terrorise persons and frighten them into ﬂeeing from a place in order to restore the “social balance”, and (b) “bride-burning” or “dowry-deaths”.

(4) Magnitude: Murders of an “enormous proportion”, e g, of all members of a family, or a large number of persons of a particular caste, community or locality, have been held to deserve the death penalty.

(5) Victim: Murders where the victim of the murder is an innocent child, helpless woman, generally loved public ﬁgure, or person over whom the murderer exercises a position of dominance or trust have been held to deserve the death penalty.

Viewed through this prism, both the Graham Staines case and the Bhagwan Dass case, appear to have been ﬁt for the death penalty. Honour killing cases satisfy the manner, motive, nature, and (in some cases) the victim tests. Typically, honour killings in India are committed in a brutal manner, with a depraved motive, and are “socially abhorrent” in nature. In some, though not all, honour killing cases, the murders are committed by members of the victim’s family, who stand in a position of trust vis-à-vis the victim. Similarly, the murder of Graham Staines and his two minor children was committed in a brutal manner by “roasting (the victim) alive”, with a depraved motive, of a socially abhorrent nature, and two of his victims were “innocent children”. Yet, the Court refused to apply the death penalty in this case, despite later advocating (though not applying) the death penalty in the honour killing case.

Punishing Rights

Amongst other factors then, a murder case is ﬁt for the death penalty where the crime is committed with a depraved motive, or where it is of a socially abhorrent nature. But what motive can be more depraved, and what crime can be of a more socially abhorrent nature, than a murder committed with the intent to punish the exercise by the victim of a fundamental right recognised by the Constitution?

The perpetrators of honour killings interfere with a couple’s right to marry or to engage in sexual relations, rights which form part of the constitutional right to privacy.13 Under its substantive due process doctrine, the American Supreme Court had long ago recognised the fundamental rights to marriage,14 contraception,15 procreation,16 abortion,17 child rearing,18 and more recently, to homosexual sodomy.19 Analogously, in India, starting with the 1960s the Supreme Court progressively recognised an inviolable constitutional sphere of privacy, implicit in the right to life and personal liberty under Article 21 of the Constitution.20 Further, following

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the Delhi High Court’s celebrated decision in the Naz Foundation case,21 where the Court decriminalised homosexuality, it has become apparent that Indian courts too recognise that there is a certain intimate zone of constitutional privacy which the State cannot interfere with.22 For this reason, honour killing cases where the murderer punishes the exercise of the fundamental right to constitutional privacy (marital or sexual) show a depraved motive and are socially abhorrent, con sequently ﬁtting the death penalty test.

Similarly, Article 25 of the Constitution grants to every person the right to profess, practise and propagate religion. The right is available to all persons, irrespective of nationality and citizenship, and it was available to Graham Staines. A murder tainted by the intent to punish the exercise by the victim of the fundamental right to profess and propagate religion reeks of a depraved motive and of social abhorrence, and neatly ﬁts the contours of the death penalty test. Yet, the Court found it justiﬁable to refuse to sentence the accused in the Graham Staines case to death despite the fact that Staines was being punished for exercising his constitutional right to propagate religion.

To be sure, every murder involves an interference with the fundamental right to live, but under the “rarest of rare” doctrine not every murder deserves the death penalty. In the Bhagwan Dass case, the Court seemed to advocate the death penalty for murders interfering with something more than the mere right to live – to murders motivated by a depraved desire to interfere with “fundamental” constitutional rights. However, the Court refused to see this logic in the Graham Staines case.

Fundamental rights, however, are available only against the State and not against private citizens, and the perpetrators of honour killings are private citizens. It could therefore be argued that constitutional rights are not available against the perpetrators of honour killings, and any discussion on constitutional principles in such cases is irrelevant. Yet, in advocating the death penalty in honour killing cases, the Supreme Court in the Bhagwan Dass case perhaps recognised the fact that the one who murders another for exercising a fundamental constitutional right (e g, the right to marriage or sexual privacy) deserves the strictest of punishment. After all, if constitutional rights are to have any meaning, they must not merely dictate the manner in which the State interacts with its citizens, but must also colour the standards that will be applied to interactions amongst private citizens.

In the Bhagwan Dass case, the Court seemed to hold that the law will not tolerat e the motive of stiﬂing “fundamental” constitutional rights contained in part III of the Constitution. To use a religious analogy, if the lengthy Constitution were the epic Mahabharata, the fundamental rights chapter would be its Bhagwad Gita. For the sacrosanct position fundamental rights occupy in Indian jurisprudence, it is perhaps justiﬁable in a system which permits the death penalty, to claim that a murderer who seeks to punish his victim for exercising a fundamental constitutional right deserves the death penalty.

Delay

Eventually, the Supreme Court in the Graham Staines case found it ﬁt to deny the death penalty on the ground that more than 12 years had elapsed since the date on which the crime had been committed.

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In a long line of cases, the Supreme Court has held that prisoners who are under the spectre of the death sentence for an unduly long period of time after the ﬁnal conﬁrmation of the sentence, are entitled to have the death sentence commuted to life, on account of the dehumanising psychological effect of the prolonged wait.23 However, this was not so in the Graham Staines case. Twelve years had elapsed since the date on which the crime had been committed, but twelve years had not elapsed since the date on which the accused had been sentenced to death. For the purpose of commuting death sentences to life on account of the “death row phenomenon”,24 delay is measured not with reference to the date on which a crime is committed, but with reference to the date on which the accused is ﬁnally sentenced to death. For this reason, the fact that 12 years had elapsed since the date of the commission of the crime was irrelevant for the purposes of determining the sentence.25

Further, although the trial court sentenced the accused to death in September 2003, the sentence was reduced to life by the high court in May 2005 – less than two years after the trial court’s death sentence. Accordingly, the accused was

COMMENTARY

“under the spectre” of the death sentence for no more than a year and a half, and not for the 12 years mentioned by the Court.

The Supreme Court has held that even in cases where the execution of the death sentence is delayed, the Court must look at other factors in order to ascertain whether the sentence should continue to be one of death despite the delay. Such factors includ e

the nature of the offence, the diverse circumstances attendant upon it, its impact upon…contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated.26

In essence, there can be no “hard and fast” rule with respect to commuting death sentences to life imprisonment on account of the delay. In such cases, it is also imperative for the Court to examine the root cause of the delay, in order to ensure that the delay was not caused by the accused himself. After all, reducing a death sentence to life imprisonment because of delays caused on account of frivolous proceedings ﬁled by the accused himself would “defeat” death penalty law in India, reducing it to an “object of ridicule”.27

In the Graham Staines case, the Court did not appear to assess the cause of the delay. Hypothetically speaking, if the delay was caused on account of proceedings ﬁled by the accused himself, then commuting the sentence to life for this reason would be tantamount to allowing a person to take advantage of his own wrong.

Different Strokes

The murder of Staines and his two minor sons was no less “brutal” or “barbaric” and no less of a “slur on the nation” than an honour killing. Both cases had their similarities. Both involved heinous murder, and in both the murderer sought to interfere with the fundamental constitutional rights of his victim. Yet, the Court advocated the death penalty in the Bhagwan Dass case against honour killings involving the right to privacy, but only life imprisonment for an interference with the right to proselytise religion in the Graham Staines case. It would have been different if the Supreme Court had found that there was not enough evidence on record to rule out the remote possibility of error, in which event a life sentence would have been more appropriate. It would also have been justiﬁable for the Court to refuse to apply the death penalty because it was morally opposed to the death penalty altogether. However, the Court’s initial reference to the fact that Staines was being “punished” for converting “poor tribals” to Christianity, and then its reference to a 12-year delay in the judicial process, in justifying its life imprisonment result, tends to raise eyebrows.

Symbolically, this inconsistency in the application of the death penalty does not bode well for the Court. After all, why should a man who murders another for proselytising religion get only life imprisonment, whereas a man who murders another for marrying against his will gets death? At its worst, this seems to suggest a bias in the law, that the right to profess and propagate religion is “inferior” to other constitutional rights. One cannot help but ask: despite expunging its controversial remark from the record, did the Supreme Court view the fact of Staines propagating religion as being a “mitigating circumstance” in assessing the case for the death penalty? The day that an exercise of fundamental rights by a victim of murder is considered by our courts to be a “mitigating factor” to reduce a sentence of death to life, constitutional rights will cease to have meaning.

It may be possible for one to argue that honour killings are a more widely prevalent social disease in India than murders whose victims engaged in pro selytising, and so there is a stronger need to apply the deterrent effect of the death penalty to honour killing cases. How ever, in systems where the death penalty exists, its use is not limited to a deterrent effect – the death penalty is also a strong symbolic statement of a society’s revulsion against the crime being committed, in cases where life imprisonment is thought incapable of forming adequate punishment. After all, even if two innocent, minor children will never again be burned to death in a statio n wagon in Orissa, as Philip and Timothy Staines were, in our ﬂawed system which permits of the death penalty, such crimes deserve the ugly, symbolic impress of the death sentence.

There are strong moral reasons to abolish the death penalty altogether. It is no longer justiﬁable for humane and just societies to apply the death penalty. For this reason, the Court would perhaps have been better off holding that neither honour killing cases nor the Graham Staines case deserved the death penalty. However, the application of the death penalty in one case and not in the other seems unjustiﬁed. As long as the death penalty continues to exist on the statute books in India, it must be applied in a constitutionally consistent manner, an approach which must accord equal status to equal rights.

Notes

1 Bhagwan Dass vs Delhi, (2011), 5 SCALE 498. 2 Dara Singh vs Union, (2011), 1 SCALE 615. 3 Id. 4 MANU/OR/0579/2005. 5 Order dated 25 January 2011, See Abhinav Chan

drachud, Freedom, Faith, Fear, Indian Express 26 January 2011, available at http://www.indianexpress.com/news/freedom-faith-fear/742284.

6 Id, paragraph 43. 7 Id, paragraph 47. 8 Order dated 25 January 2011. 9 (2011), 5 SCALE 498.

10 Bachan Singh vs Punjab, (1980) 2 SCC 684.

11 Macchi Singh vs Punjab, AIR 1983 SC 957.

12 Id.

13 See Wimberly, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60 V and L REV 283 (2007); Garry, A Different Model for the Right to Privacy: The Political Question Doctrine as a Substitute for Substantive Due Process, 61 U MIAMI L REV 169 (2006); Williamson, The Constitutional Privacy Doctrine after Bowers vs Harwick: Rethinking the Second Death of Substantive Due Process, 62 S, CAL L REV, 1297 (1989).

14 Loving vs Virginia, 388 US, 1 (1967).

15 Eisenstadt vs Baird, 405 US, 438 (1972); Griswold vs Connecticut, 381 US. 479 (1965).

16 Skinner vs Oklahoma, 316 US, 535 (1942).

17 Roe vs Wade, 410 US, 113 (1973).

18 Pierce vs Society of Sisters, 268 US, 510 (1925).

19 Lawrence vs Texas, 539 US 558 (2003).

20 See Kharak Singh vs Uttar Pradesh, AIR 1963 SC

1295.

21 Naz Foundation vs Delhi, (2010) Cri LJ 94.

22 See further, Mr X vs Hospital Z, (2003) 1 SCC 500, watering down observations concerning the right to marriage, made in Mr X vs Hospital Z, (1998) 8 SCC 296.

23 See e g, T Vatheeswaran vs Tamil Nadu, (1983) Cri LJ 481; Bhagwan Bux Singh vs UP, (1978) 1 SCC

214. 24 See TR Andhyarujina, Mercy Petitions: Inhumane Prosecution, The Hindu, 29 June 2010, available at http://www.thehindu.com/opinion/lead/article492223.ece. 25 If twelve years had elapsed between the date on which the crime had been committed and the date on which the accused had been tried, then one could argue that the evidence may have been weaker, as witnesses may have forgotten events. However, this was not so either. 26 Sher Singh vs Punjab, AIR 1983 SC 465 (paragraph

24). See further Jagdish vs MP, [2009] 14 SCR 727, 27 Sher Singh vs Punjab, id, paragraph 23.