To hang or not to hang? Jurists cry injustice to seven on death row

Aug 22, 2012, 03:56AM



New Delhi: Were two criminals, who did not deserve the harsh death sentence, hanged by mistake? It is one of the questions posed by a group of former Supreme Court judges and eminent jurists who have raised similar questions about seven other people who are on death row. The jurists argue that the “rarest of the rare” death sentence was awarded to these people “in ignorance” of the law.



In a letter to President Pranab Mukherjee, the jurists state that, “Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future.”



“This matter goes to the very heart of our Constitution and the system of democratic government because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court,” the letter signed by 13 other jurists reads.



The letter points out that the death sentences given to these seven persons by various two-judge benches of the SC were contrary to the binding dictum of rarest of rare propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab.



The president would now refer the appeal to the ministry of home affairs for its due consideration and advice.



The jurists have appealed to the president because these convicts were erroneously sentenced to death according to the Supreme Court’s own admission.



Retired Delhi high court justice RS Sodhi said, “Five-judge bench should be constituted in case of death penalty being in question. It is only after a unanimous decision is reached amicably, sentence should be given.”



The Supreme Court, while deciding three recent cases, held that seven of its judgments awarding the death sentence were rendered per incuriam (meaning out of error or ignorance).



The Ravji approach of focusing on the aggravating circumstances (namely, the crime) at the expense of the mitigating circumstances (namely, the criminal) served as a precedent to at least six judgments, leading to the hanging of Ravji in 1996 and Surja Ram the following year. The erosion of the rarest of the rare doctrine was finally decried by the SC in 2009 in Santosh Bariyar vs State of Maharashtra, followed by two more such correctives in 2010 and 2011.



Those who signed these unprecedented appeals also include justices AP Shah, BA Khan, Bilal Nazki, PK Misra, SN Bhargava, BH Marlapalle, BG Kolse-Patil, Hosbet Suresh, Prabha Sridevan, KP Sivasubramaniam, Ranvir Sahai Verma, PC Jain and Panachand Jain.

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