Playing god blindfolded

A recent documentary/film on the December 16 rape and brutal murder, showcasing the misogyny of a convict and two lawyers in the case, is peppered with demands for the death penalty for irredeemable convicts one of whom comes across as uncomprehending about repentance, and who is the chief narrator of the film. 

Yet, for those scrutinising the different strands of the criminal justice system, the spectre of an execution raises anxieties, as indeed it must.

Sonu Sardar’s case is one narrative that should reintroduce caution into the use of the death penalty. On February 10, 2015, the Supreme Court dismissed a petition from Sonu Sardar, who spent a little over 10 years in prison while he was charged, tried and convicted in connection with dacoity and the murder of five persons in November 2004. 'In connection with' because the police case is that there were five persons who were party to the crime, one of whom was sent to the juvenile court, and three others have remained absconding. There is nothing in the evidence to suggest that Sonu Sardar committed murder. The trial court, in fact, says: "five persons came again knocking at their door saying that they want to talk about a scrap deal, however on entry, they grabbed hold of Shamin and Asgar and demanded money. When Shamin gave the money from his pocket to the Sikh-like person, then two persons held a knife to the throat of Shamin while two others held a knife to the throat of Asgar." This is as much as the 10-year-old eyewitness saw before she fled the scene. It is difficult to discount the thought that Sonu Sardar had the entirety of the crime attributed to him because he was the only one brought to trial. 

There are other discrepancies. The trial court records that the young eyewitness had said there was one Sikh-like person among those who had committed the crime; but, in the test identification parade she identified two of them as fitting the description — the only two who were in turbans. In justification of the death sentence, the trial court said that he “was the leader of other four persons”, that he “has committed murder in extremely brutal, grotesque and diabolical manner”, “has committed murders (of) almost all members of family of Shamim Akhtar” and that this sentence was a “response to the society’s cry for justice against the criminals” and intended to “reflect public abhorrence of the crime”. Given the nature of the evidence on which the trial court has based its decision, this would appear to be an exaggerated claim of Sonu Sardar’s role in the crime. 

Sonu Sardar went through his trial, he appealed in the high court and in the Supreme Court with the courts treating him as being 23 years of age at the time the crime was committed. In 2014, a team of researchers from the National Law University Delhi, who met death row prisoners, their families, lawyers, victim’s families and others who could possibly contribute to understanding the implications of the death sentence, met Sonu Sardar.

Their investigation resulted in a startling finding. His school records, his teacher and his mother testified to his age as having been 18 years and 2 months at the time the crime was committed, not 23 years. 

While this would have no effect on his conviction, it would almost certainly have been an important factor in deciding the sentence. The trial judge had not considered his young age as a mitigating circumstance because 23 was not young enough to merit such consideration. If he were a mere 18 years, would the court still have sentenced him to death? It is by now established law that the young age of the accused is a mitigating circumstance while considering an imposition of the extreme penalty. It was only after the NLUD researchers had unearthed the age of Sonu Sardar that it could be taken to court, but, by then, it was late and the Supreme Court was disinclined to reconsider its decision in a review petition. The baton of responsibility has passed on to the President. 

It is striking that Sonu Sardar was unable to exercise his defence even to the extent of getting his age right in the trial. But then Sonu Sardar perfectly fits the stereotype of those who end up on death row. He is a tribal (agaria) youth, from a family of scrap dealers, whose family is extremely poor with no consistent source of income. This profile does little to enhance the ability to ensure that he has a fair defence. If Sonu Sardar’s age was wrongly entered in court records, it reflects the vulnerability that such a profile produces. If someone hadn’t asked and cared to find out how old he really was, we would never have known.

It is this caring to know that is asked of the President before deciding on carrying out an execution. 

Criminal law is not an instrument of retribution. The underlying intent is to reform the person who has committed the crime. The Delhi high court, in its decision in State vs Bharat Singh decided on October 31 2014, resurrected the importance of reform, having deployed the services of a probation officer to conduct a thorough inquiry into the potential for reform of the convict. The report from the probation officer led it to set aside the sentence of death and, instead impose a sentence of imprisonment for life. 

In 2012, the Supreme Court said, of Sonu Sardar “his criminal propensities are beyond reform and he is a menace to society”; but they had no means of knowing that. In fact, the trial court had found that Sonu Sardar had no previous conviction; that he was no problem in jail; and that he had not tried to escape when there had been a jailbreak. There is a real danger that a person may be executed not because the consequences of not executing are too dire to contemplate, but because he is dispensable; that is, no one cares. It is this that the President, and the government, is expected to prevent in the constitutionally given ability to exercise clemency. 

The author works on the jurisprudence of law, poverty and rights