A Bench of Justices N. Kirubakaran and B. Pugalendhi have suggested, in a controversial statement, that the country needs stringent penalties to curb the menace of corruption in the country. These remarks were passed in an ongoing case, AP Suryakrasam v. State of Tamil Nadu & Ors (W.P [MD] No. 14481 of 2020). They said, “The Central Government may consider imposing punishment, such as, “hanging” or “death penalty”, for corrupt practices or for demanding and accepting bribes, like in China, North Korea, Indonesia, Thailand and Morocco.”
The Bench also observed, “People are compelled to accept corruption as normal one. Corruption has become deep rooted and has spread like Cancer. Every day, it is reported in the media that many officials are caught red handed, while taking bribes. Hence, the punishment needs to be enhanced.”
Matter before the court
The Court was hearing a Public Interest Litigation filed by advocate AP Suryakrasam (petitioner) pointing out certain shortcomings in procurement of an agricultural product paddy from the farmers at the procurement centres, including demand of bribe by certain officers.
The court took cognisance of media reports that reveals seizure of large sums of money during inspection at the procurement centres. It also cites an example of a raid at Pullarambakkam Procurement Centre, Tiruvallur District where a sum of Rs.2,00,000 had been seized from the officials. The Bench remarked, “These raids and the seizure of amounts would only support the contention of the petitioner that a sum of Rs.30/- to Rs.40/- is being demanded by the officials as a bribe from the Agriculturists, who bring their produce to the Procurement Centre.”
Directions issued by the court
Tamil Nadu Civil Supplies Corporation was directed to file an additional affidavit as the court noted contradictions in the counter affidavit filed by TNCSC. The affidavit also had to furnish the acts that have been done by the negligent/ guilty officials; action taken as against the delinquent officials; and the amount of unaccounted money that has been found and seized from the delinquent officials.
The Bench took note of the recommendations made by the Administrative Reforms Committee (headed by a retired High Court Judge) in April 2008, to ensure corruption free and transparent administration. “One of the recommendations which has been accepted by the Government is delegation of powers and fixing of accountability on every Government Servant, at every stage and every level. All the Secretaries to Government and Heads of Department were directed to issue necessary orders fixing the accountability, while issuing orders on delegation”, the court added.
Finally, the court suo moto impleaded the State Chief Secretary, Vigilance Commissioner and the Director of Vigilance and Anti-corruption to determine the actions taken by the Government in this regard.
Seeking a response in the form of affidavits from respondents, the Division Bench has listed the matter for hearing on November 9, 2020.
Death penalty in India
Judicial opinion on this has varied for years resulting in the selective imposition of punishment of such strict kind. The Court framed three important rules while upholding the validity of death penalty in Bachan Singh v State of Punjab (1980) 2 SCC 684. First, in deciding sentences, it held that aggravating and mitigating circumstances must be considered, both of the crime and the accused. Second, the Court opined that the death sentence must be imposed only in the “rarest of rare” cases where the alternative option of life imprisonment was “unquestionably foreclosed.” Third, and most significantly, it held that the burden was on the State to prove that the accused will pose a continuing threat to society, is incapable of reform or rehabilitation, and is hence deserving of the harshest form of punishment.
In Macchi Singh v State of Punjab 1983 SCR (3) 413, the Supreme Court deviated from the Bachan Singh precedent and said that death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature of the crime committed and all relevant circumstances. “Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the crime”, the Bench said.
The Supreme Court further acknowledged the selective nature of death penalty in Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994) 2 SCC 220, where the Supreme court confirmed capital punishment on Dhananjoy for raping and murdering an 18-year-old girl but said, “Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility.”
In 2013, Justice K.S. Radhakrishnan highlighted the societal instincts of retribution and held that, “the Rarest of rare test depends upon the perception of the society that is ‘society centric’ and not ‘Judge centric’ that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges. (Shankar Kisanrao Khade vs State Of Maharashtra (2013) 5 SCC 54).
Recently, Justice Kurian in Chhannu Lal Verma vs The State of Chhattisgarh (Crl. App. No. 1482/1483 of 2018) noted that the Bachan Singh guidelines have failed to prevent death sentences from being “arbitrarily and freakishly imposed”. It has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of “constitutional due process and equality principle”.
The inability of judges to apply death penalty principles in previous cases reveal how fractured our criminal justice system is and the pressing need to re-examine such recommendations!
The Madras HC order can be read here:
Related:
World Day Against Death Penalty: India needs to abolish capital punishment