Justice Speaking: Capital punishment in India is “judge centric”, says Justice K T Thomas

Justice K. T. Thomas served as Judge of the Supreme Court of India from 29^th March, 1996 to 30^th January 2002.  Justice Thomas is actively involved with law even post retirement. He has served as Chairman of various Committees including Police Reforms Monitoring Committee constituted by the Supreme Court. He was also the Chairman of the School Review Commission to review the functioning of National Law School of India University, Bangalore. Justice Thomas was presiding the Supreme Court bench that confirmed the death sentence in the Rajiv Gandhi assassination case.

Live Law’s  M A Rashid spoke to Justice K T Thomas. Below are the excerpts of the conversation:

Live Law: Over 13 years after confirming the death sentence of three accused in the Rajiv Gandhi assassination in a recent interview you  said it would be "constitutionally incorrect" to hang them as the convicts have spent 22 years in jail without a "review" of their case. Can you explain the circumstances under which such a statement was made?

Justice K T Thomas: I did not make a statement as such. It was an answer to a question put to me by a journalist over the phone (on behalf of Times of India, Chennai). The question was only with reference to the three accused who were sentenced to death penalty by the Supreme Court in Rajiv Gandhi assassination case.  I learnt that those three persons have been languishing in jail for nearly 22 years. I held the view that executing the death penalty on those three accused at this grossly belated time would amount to double punishment. I permitted this personal view of mine to be published. This is the background of my expressing the view as indicated in your question.

Live Law:It was reported that you said thus: “At a time when the Supreme Court bench headed by me pronounced judgments in Rajiv Gandhi assassination case, apparently, we did not consider the nature and character of the accused who were sentenced to death penalty by us. It was only many years thereafter a bench headed by Justice S B Sinha pointed out that without considering the nature and character of accused, a death sentence should never be awarded. His judgments mentioned errors in previous SC judgments and that applies to Rajiv Gandhi assassination case." Do you think there is judicial impropriety in these post-retirement admissions?

Justice K T Thomas: I did not consider the propriety aspect in giving expression to my above view. As mentioned by me earlier, the context of expressing my view was not chosen by me. That apart, it is a fact that our Bench did not consider “the nature and character of the accused” who were sentenced to death.  It is a misfortune that the said aspect was not argued before us, nor could any one of us (on the Bench) recollect that aspect highlighted by the majority judgment in Bachan Singh case.  Be that as it may, I do not find any impropriety on my part in giving expression to my personal view when that aspect was brought to my notice by the journalist.

Live Law:The Constitution Bench decided the Bachan Singh case and evolved the ‘rarest of rare’ formula for awarding death sentence in 1980. It is after 19 year that Justice Sinha found that many of the cases decided between this period have deviated from Bachan Singh case. Two persons were already executed following this wrong interpretation of law. How do you react?

Justice K T Thomas: I would only say that it was a misfortune and a failure of our system that two persons were executed without advertence to an aspect which was highlighted by the Constitution Bench in Bachan Singh case.

Live Law:It was in 2009 that the Supreme Court made the extraordinary admission of error in awarding death sentences, but till date nothing has been done to correct the error. Can the Supreme Court do anything to correct this error? Can the Supreme Court suo motu review the cases?

Justice K T Thomas: There is no impediment for the Supreme Court to review its own judgment. No matter that several years have elapsed now. Article 32 will help the Supreme Court to do so.

Live Law:In August 2012, fourteen retired judges wrote to the President of India, pointing out that the Supreme Court had wrongly awarded death sentence to 13 persons. They requested the President to commute the sentence to life imprisonment. They called the execution of two wrongly sentenced prisoners in 1996 and 1997, “the gravest known miscarriage of justice in the history of crime and punishment in independent India”. What are your views on this? Do you support their stand?

Justice K T Thomas: What those retired judges did was to bring to the notice of the President of India that death sentence was wrongly awarded to those accused. I do not find anything wrong in what those retired judges did. I would also venture to add  that those retired judges had only done their duty as law abiding worthy citizens of this Republic. My only regret is I could not be one of them.

Live Law:As a trial judge, you had awarded death penalty on three occasions and at Supreme Court level death penalty was awarded in three cases, including Rajiv Gandhi assassination case. After retirement on many occasions you had described “death penalty” as judicial murder. Is it contradictory?

Justice K T Thomas:  My personal view is that “death penalty” is a judicial murder.  I developed this view after reading many materials on this aspect. But my personal view is different from what the Supreme Court declared in Bachan Singh case.  As a disciplined judge I should not have clung to my personal view when discharging my judicial functions.  In that respect, there is no contradiction.

Live Law:According to Prof. Upendra Bakshi a most constitutional  way of sincerely respecting human right to life lies in Supreme Court mandating a  practice requiring that the Court sits in its entirety and proceed to award death sentence even in the ‘rarest of rare cases’ by a unanimous verdict. Do you think that life of a citizen is vital and before depriving him of his life, it has to be decided at least by a Constitution Bench?

Justice K T Thomas: The view of Prof. Bakshi deserves serious consideration.

Live Law:Supreme Court recently rejected Bhullar’s plea for commutation holding that undue delay could be one of the factors that leads to commutation, to be inapplicable for those sentenced to death under TADA and similar anti-terror legislation. Later the Supreme Court commuted the death sentence of a double murder convict to life term on the ground of delay. Is such sentencing classification valid?

Justice K T Thomas: The recent decision of the Supreme Court rejecting the plea of Bhullar was read by me. The Supreme Court, in that decision, took care to observe that they did not consider whether delay on the part of the President to take decision on the mercy petition is not a ground to entitle the convict to have his death penalty commuted. The judges particularly pointed out that the said decision is only on the special facts involved in Bhullar case.

Live Law:Do you think Bhullar’s case belonged to the “rarest of rare” category considering the fact that Justice M.B. Shah, the senior Judge on the Bench which heard the appeal, acquitted him?

Justice K T Thomas: I do not think that Bhullar case belongs to the rarest of rare category.  At any rate, the fact that one of the three judges had even found Bhullar not guilty, was a valid ground for choosing the lesser alternative sentence for Bhullar. According to me, if one of the judges in a three judge Bench does not agree for imposing capital punishment, even that aspect is sufficient enough to save the convict from the gallows. In the case of Bhullar, the situation is more serious, because the senior most judge on the Bench found that Bhullar was not guilty and hence not liable even to be convicted.  In such a situation, it is a valid ground for the President to commute the capital penalty imposed on Bhullar.

Live Law:In all cases of “Honour Killing”, Justice Katju awarded death sentences to the accused. While Justice S.B. Sinha commuted all death sentences for child rape and murder, Justice Pasayat upheld or imposed the death penalty in every such case including cases where lower courts had acquitted the accused. Do you agree with the admission of the Supreme Court that capital punishment in India is “judge centric” [Sangeet (2012)]?

Justice K T Thomas: As long as the death penalty remains on the statute book there would be cases in which judges may feel that on the facts of a particular case death penalty was warranted. Hence, the expression “judge centric” punishment would apply not only to penalties, but even to the very judgments in many cases. I am inclined to agree that capital punishment in India is “judge centric” in the present system.

Live Law:High increase in crime rate, unmerited acquittals, defective investigations, corruption in law enforcement agencies and judiciary, long pendency of cases, issue based legislations and no uniform sentencing policy: Has our criminal justice system failed?

Justice K T Thomas: Various aspects of drawbacks in our criminal justice system have been enumerated in the above question. I have my own reservations regarding “unmerited acquittals” and “defective investigations”.  The investigating agencies in India have proved to be efficient by and large, though not on par with those in some of the most advanced countries.  But I agree that corruption in enforcement agencies and long pendency of cases has affected our criminal justice system. The long pendency is perhaps, the worst affecting factor in criminal justice.  It can be remedied by the establishment of large number of courts in proportion to the population, and also by providing advanced equipment and facilities to the courts. Examination of witnesses should be done only by recording the same through computer facilities and video conferencing.  I do not think that the crime rates in India have increased higher than in many other countries including advanced countries. I may not be able to give any answer on the last two factors mentioned in your questions, i.e., issue based legislation and lack of uniform sentencing policy. If I am asked to point out one single defect which has adversely affected our criminal justice system, I would unhesitatingly point to the delay in disposing of cases, including appeals and revisions.  This is a defect which could certainly be remedied.  If there is a will there is a way.  With my long experience I am hesitant to blame judges alone for the delay.  It is true some judges were and are very slow, and some are lazy but the majority of judges are hard working and their disposal rate is fairly good.

Live Law:Do you think it is better to move to the inquisitorial system?

Justice K T Thomas: Though our jurisprudence is by and large based on adversarial system, I have noticed that inquisitorial approach is not altogether averted. This question cannot be answered in a simple manner. A detailed study of how inquisitorial system would suit our jurisprudence better must be made by our jurists, Law Ministry, both at State level and Union level.

Live Law:We are using the Penal Code enacted in 1860, Evidence Act of 1872 and Police Act of 1860, and there are lots of out-dated provisions in these statutes. Some of offences still carry a nominal fine of Rs. 50 as maximum punishment. Do you think it is time to move away from the colonial legislations and bring in new laws according to the needs of the modern society or updating the statues periodically?

Justice K T Thomas: The provisions of Evidence Act, Penal Code and Procedure Code have stood the test of time. Only some marginal alterations have been made during the past half a century. In spite of demands made from different quarters none could prescribe any better substitute for the provisions of those enactments. Of course I agree that the amounts fixed by way of fine are totally obsolete. Without any difficulty they can be updated. The last part of your question is of a wide range and an answer to it cannot be given in a brief interview.

Live Law:Usually Judges are made to sit on Benches in all sorts of matters and some of them in areas of law in which they have no expertise. Do you think the judges who have expertise in a particular area should be posted on the benches hearing such subject matters?

Justice K T Thomas: It would be advisable to allot cases to judges on the basis of the branch in which the judge concerned has acquired experience and expertise. But judges by and large acquire expertise very fast when required to deal with the category of cases.  Exceptions cannot make the rule.

Live Law:In a series of cases, starting from Raj Deo Sharma (1996) a Bench headed by you issued timelines to complete criminal prosecutions but later the Constitution Bench in Ramachandra Rao v. State of Karnataka (2004), overruled the judgment saying that it amounted to exercise of legislative power which is beyond competence of judiciary. Can you explain the context in which those judgments were passed and do you still stand by your judgment?

Justice K T Thomas: At present there is no use speaking about Raj Deo Sharma case.  A Constitution Bench has subsequently overruled it. The judgment in Raj Deo Sharma was authored by me and had a salutary effect on the criminal courts in India. We in the Supreme Court received information from different High Courts that thousands of old and very old cases have been cleared on the strength of the directions contained in Raj Deo Sharma decision. A larger bench had occasion to reconsider Raj Deo Sharma on a review petition filed by the government. The majority in the larger bench also upheld the directions in Raj Deo Sharma with some useful modifications in the directions contained in the original judgement.  Perhaps no other judgment of the Supreme Court had directly resulted in clearance of huge backlog as Raj Deo Sharma decision could achieve. Since the Constitution Bench overruled it I have to stand by the judgment of the Constitution Bench being a disciplined judicial person.

Live Law:Swami Shradananda (2008) introduced a new sentencing procedure of life imprisonment for the rest of life without any commutation or premature release under Section 433A of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions. Is it an encroachment of the Judiciary on the powers of the executive?

Justice K T Thomas: The judgment in Swami Shardananda case was passed under Article 142 of the Constitution. I welcome it, as it could be a substitute for death penalty. Instead of judiciary encroaching on the powers of the executive, the judgement could facilitate the Parliament and executive to seriously consider about abolition of death penalty.

Live Law:Supreme Court Benches are frequently issuing guidelines to fill up lacunae in every area of law but it has miserably failed to evolve any appropriate sentencing policy or to give guidelines to the Subordinate Courts on sentencing. What are your views?

Justice K T Thomas: I have no answer to this question.

Live Law:The conflicting views of the Supreme Court can be seen in many judgments particularly relating to inquiry before registration of FIR, double jeopardy, powers of committal courts, compounding of non-compoundable offences etc. How do you react to Fali S. Nariman’s suggestion that two Judge Benches judgment shall not be considered as precedents under Article 141 of the Constitution of India, in view of increase in the number of inconsistent judgments?

Justice K T Thomas: When Fali S. Nariman propounded his proposal that Supreme Court must have only benches of minimum three judge strength, I sent a letter to him in support of his view. However, I do not agree with the suggestion, if made, that judgments of 2 judge benches shall not be considered as law under Article 141 of the Constitution of India.  Any such suggestion would only lead to the impairment of judicial discipline in the High Courts and subordinate courts.

Live Law:In the wake of increasing number of child rape and assault on women and children, the Government introduced The Protection of Children from Sexual Offences Act, 2012 and the Criminal Law Amendment Act 2013. But the crimes against women and children are increasing day by day. What is the solution according to you and how do you respond to the suggestion of Justice VR Krishna Iyer to impose ‘castration’ as a punishment for rape?

Justice K T Thomas: I am not able to agree with the suggestion of Justice V.R. Krishna Iyer that castration can be imposed as a punishment for rape. If the suggestion is implemented it would eventually lead to dismemberment of vital limbs of human body for certain other crimes.  In fact, such types of punishment existed in early times. With the advancement of civilization and modern approach to human rights, any punishment affecting human body is considered as barbaric.  I am unable to reconcile to the suggestion to impose castration as a punishment in any case.

Live Law: Justice O Chinnappa Reddy opined that the Supreme Court had hardly contributed to any development of the Criminal Law and didn’t put up any suggestion to the Parliament to make appropriate laws. Supreme Court generally being satisfied with the facts, the jurisprudence of Criminal Law has been sadly a neglected subject. How do you respond?

Justice K T Thomas: It is his personal view. I am not posted with the objective reasons for reaching such an opinion.

Live Law: As per the latest report, 740 cases are pending before consideration of Constitution Bench in the Supreme Court.  Should there be a full time Constitution Bench?

Justice K T Thomas: It is advisable to have the Constitution bench of the Supreme Court at all times. But it is not advisable to have the same judges on the bench at all times. The judges must be changed for dealing with different cases.

Live Law: According to Eugene Ehrich, ‘the best guarantee of justice lies in the personality of a Judge”. Do you think personality and personal ideology of a judge impact or influence in decision making?

Justice K T Thomas: I entirely agree with Eugene Ehrich.

Live Law: The Supreme Court recently dismissed a petition seeking review of the collegium system for selection of judges for the higher judiciary even though the Government supported the petition. Justice Verma, who institutionalized the collegium system, openly admitted that it is not working properly. Fali S. Nariman who won the Judges case later told he felt sorry on winning that case. Do you think that the collegium system is a failure?

Justice K T Thomas: It is time that another alternative system is evolved in place of the present collegiums system. I think the feeling is almost unanimous on this aspect among advocates and former judges.  Fali Nariman himself suggested that consensus of all the Supreme Court judges should be obtained before recommending a person as judge of the Supreme Court. This principle should apply to the High Courts as well.

Live Law: Justice U.L. Bhat was your colleague in the High Court of Kerala, but he was not elevated to the Supreme Court. Those against the collegium system argue that Justice Bhat’s non-elevation to the Supreme Court is one of the best illustrative examples of the failure of the collegiums system. Do you agree with it?

Justice K T Thomas: Justice U.L. Bhat is an outstanding judge. Even his critics would admit that fact. Non-elevation of judges like him to Supreme Court resulted in a great loss to the Supreme Court itself.

Live Law: According to Justice Ruma Pal the process by which a judge is appointed to the high court or elevated to the Supreme Court is one of the best-kept secrets in the country. Do you think the system of appointment should be more transparent?

Justice K T Thomas: I agree with Justice Ruma Pal. A substitute for the present collegium system can take care of the suggestion made by Justice Pal.