Contrasting sentencing orders on Monday in two separate murder convictions have again brought to the fore the absence of a uniform standard in India when judges award the death penalty.
Greeshma, a 24-year-old woman, was sentenced to death by a Thiruvananthapuram court for poisoning and murdering her partner in October 2022. The same day, Sanjay Roy, a former civic police volunteer convicted for the rape and murder of a 31-year-old doctor at the city’s RG Kar Medical College and Hospital in August, was handed a life sentence by a Kolkata court.
In India, capital punishment is supposed to be awarded in the “rarest of rare” situations. The disparity in the sentences of Greeshma and Roy has raised questions about the inconsistent and subjective application of this principle.
The Kerala court repeatedly referred to the romantic relationship between the victim and the offender. The suggestion of enticement and betrayal by a woman give the impression that the judge ’s gendered perceptions influenced the death sentence to Greeshma.
Background to both cases
The Bengal case relates to the murder of a 31-year-old trainee doctor on a state-run hospital’s premises on August 9. The crime sparked protests across the country.
The Supreme Court had taken suo motu cognisance of the case amid public outrage.
Roy was arrested by the Kolkata Police on August 10, the day after the doctor’s body was discovered in the hospital’s seminar room.
Three days later, the Calcutta High Court ordered the Central Bureau of Investigation to probe the matter.
The court had held daily hearings since a chargesheet was filed in the matter on October 7.
In the Kerala case, Greeshma had been arrested in October 2022 for the death by poisoning of her partner Sharon Raj, who was 23 at that time. Raj had died of multiple organ failure 11 days after being served an Ayurvedic drink laced with paraquat, a potent herbicide.
Greeshma had failed in previous attempts to poison Raj. She sought to murder him since he had refused to end their relationship after her parents arranged for her to marry another man.
Greeshma had alleged that she had wanted to end her relationship with Raj and had asked him to delete intimate photos and videos of her. She was afraid that Raj would share them with her fiancée.
When is death penalty awarded?
As per both the current and previous criminal law codes, in murder convictions, courts must award either life imprisonment or the death penalty.
The death penalty is awarded, as per judicial doctrine, only in the “rarest of rare cases”. However, what qualifies as “rarest of rare” is left to the subjective decision of the courts. According to a 1980 Supreme Court judgement, courts must keep in mind considerations such as “gravest cases of extreme culpability” and the circumstances of the offender and of the crime.
The Supreme Court had held that courts must strike a balance between aggravating and mitigating circumstances in the case. “Life imprisonment is the rule and death sentence is an exception,” it held.
However, these guidelines are only vaguely defined, resulting in different judges applying different standards when it comes to the death penalty.
In the two sentences from Bengal and Kerala on Monday, for example, the courts adopted widely different approaches while sentencing the convicts for their crimes. The decisions reflect differences in how courts evaluate culpability, intent and what qualifies as a “rarest of rare” offence.
Kerala court’s reasoning
The Thiruvananthapuram court awarded the death penalty to Greeshma citing the deliberate and calculated nature of the crime. The judgement by Additional District and Sessions Judge AM Basheer highlighted that she planned the murder in detail, researching poisoning methods and luring Raj “after offering sex” into consuming a fatal concoction.
The court noted that the crime was premeditated and executed with deceit, as she used her intimate relationship with Raj to gain his trust. It described her actions as cold-blooded and motivated by self-interest, as her primary goal was to eliminate Raj because of her engagement to another person. The court emphasised that Sharon’s prolonged suffering before his death added to the gravity of the crime.
Even though Greeshma had no prior criminal record, the court declared her a “repeated offender” due to her failed previous attempts to murder Raj. It held that she was not therefore entitled to mercy.
Apart from the law, Basheer’s own views on the immorality of murdering one’s partner are also a part of the judgement. “Only with mind of extreme brutality one can repeat the same crime against her boy friend … while in love,” he noted.
He added that the murder “spread a message among youth that a girl can easily kill her boyfriend after having broken their relationship”. Commenting on the severity of the crime, he noted, “Nowadays, the youths are following live in relationships. If it is viewed lightly, it is as good as use and throw and one can easily target his partner.”
Basheer attributed further motives to the murder. The “offence was committed with an intention to create fear, psychosis in the public at large and it created panic among lovers and friends”, he wrote. He added that the gravity of the offence was enhanced because it “gave a message that a lover cannot be believed”.
Bengal court’s reasoning
In contrast, in the Bengal case, Additional Sessions Judge Anirban Das awarded life imprisonment to Roy for the offences of rape and murder, ruling that the case did not meet the “rarest of rare” standard required for the death penalty. While the court acknowledged the heinous nature of the crime, it emphasised the absence of premeditation and noted that the crime occurred in the course of events rather than being meticulously planned.
The court also considered several mitigating factors in favour of Roy. It noted that he had no prior criminal record. The judgement highlighted the possibility of reform and rehabilitation, stating that life imprisonment would serve the ends of justice without completely foreclosing the potential for redemption.
The court referred to legal precedents recommending life imprisonment over the death penalty unless the crime is exceptionally brutal or depraved.
In its reasoning, the court stressed the principle of proportionality in sentencing. It concluded that while the crime warranted severe punishment, life imprisonment was a just and sufficient response. It also underscored the importance of judicial restraint, noting that public sentiment or media attention should not influence the outcome of the case.
Differing judicial perspectives
The language in the two judgements reflects a stark difference in how the two judges viewed what constitutes a “rarest of rare” case. In Greeshma’s case, Basheer treated the betrayal of trust and premeditated intent as factors that aggravated her culpability. In Roy’s case, Das gave significant weight, despite the severity of the crime, to the principles of proportionality, “rehabilitation and the preservation of human dignity”.
Such disparities in sentencing seem to reiterate that the death penalty is awarded effectively on the basis of a judicial lottery. Basheer judged Greeshma’s actions through a seemingly gendered lens of trust and morality in a personal relationship, evidenced by his repeated reference to Greeshma having “offered sex” to Raj. To the court, this clearly amplified her perceived culpability.
Das’s judgement reflected a more restrained view of Roy’s actions and of the imposition of the death penalty. He wrote that courts must “resist the temptation to bow to public pressure or emotional appeals”.
The West Bengal government, having expressed dissatisfaction with Roy not being sentenced to death, has the option of appealing the life imprisonment sentence before the Calcutta High Court.
Meanwhile, Greeshma too can challenge her death sentence before the Kerala High Court.
At the end of 2023, 561 prisoners were living under a sentence of death.
Death sentences have been executed relatively rarely in India in the last few decades. The last death sentence executed was in 2020, when the convicts in the Delhi murder and rape case of 2012 were hanged.
Those sentenced to the death penalty have several channels to appeal the punishment before a High Court, the Supreme Court and the president.
