'Judge Cannot Forgive A Murderer' : CJI Bobde Remarks On Hearing Review Plea Of Death Row Convicts

On Thursday, a Supreme Court bench, headed by the Chief Justice of India SA Bobde, reserved its order after hearing a review petition filed by Amroha murder case convicts, Saleem and Shabnam, against capital punishment that has been awarded to them. In 2015, the apex court had affirmed the death penalty after the Allahabad High court, in 2010, had also upheld the Sessions court's decision to send them to the gallows for murdering seven members of Shabnam's family.

It has been established that Saleem and Shabnam, lovers, had wiped out the girl's family, including her father and her 10 month old nephew, on April 15, 2008 after they were strongly opposed to them getting married.

This plea was urged before the bench, also comprising of Justices S Abdul Nazeer and Sanjiv Khanna, on the grounds of mitigating circumstances in view of good behaviour after having been convicted. The issue for the court to consider here is whether the prayer seeking commutation of death sentence to life imprisonment could be granted on this basis of showing reform, through good behavior post-conviction of a heinous crime.

Senior Advocate Meenakshi Arora informed the court that Shabnam had started a literacy program inside jail and had been teaching inmates. She submitted that various aspects of a crime and the convict must be examined before sentencing, and in this instance, the offender was a first time convict who had demonstrated exceptional conduct in prison. A heinous crime is not the same as the criminal, who must be allowed a shot at reform.

Though CJI Bobde agreed that the possibility of reformation was indeed an important aspect of sentencing, they must look at the impact it would have if they were consider to a convict's behavior in jail, after being found guilty, to commute death penalty. "It would open floodgates of litigation", he said. With regard to the argument on the nature of crime and that of a criminal, the CJI opined that human beings are born with pure souls, they are innocent, and while no one is a criminal in the depths of their heart, "the courts punish the crime and not the person". "We do justice for society, not according to how she behaves with other criminals in jail", he added after remarking that the conduct had been 'exceptional' after having strangled a 10 month old child. The bench went on to express that a sentence must be in proportion to the crime, and in this case it was about balancing the killing of seven of her own family members with capital punishment.

"It is the law that deals with criminals…not a judge…being a human being, a judge cannot forgive a murderer…imagine the impact it would have if a judge told a murderer 'I forgive you!'"

The Bench then put this point to Solicitor General, Tushar Mehta, who was representing the State of UP. Upon being asked if the sentence could be changed if a convict mends their ways after being sentenced, the SG asserted that that way, there would be no death penalty. Everyone would say they have been reformed, and would come out of it. You cannot kill your parents and then say I've been orphaned so please show me mercy, submitted Mehta.

The couple's lawyer, Anand Grover, sought mercy on their behalf by citing that they were poor and illiterate. The bench, however, responded by saying there are many who are poor and uneducated, but that's no ground for allowing a review petition. While arguing a plea for reconsideration of sentence, you must show error in the sentence, reminded the bench and asked to show grounds for error.

During the course of the hearing, the Bench, through the CJI, also passed some serious comments regarding the execution of capital punishment. It was stressed that giving finality to a death sentence was extremely important and that judgments must be respected and executed in a timely fashion. In what seemed like a hint regarding recent filings in the 2012 Delhi gangrape case (Nirbhaya), the CJI also stated that convicts must not be allowed to believe that sentences are open to challenge at any time. "Litigation cannot continue endlessly", he added.

SG Mehta also mentioned at this point that the Centre, through the Home Ministry, had filed an application before the top court to modify its 'convict-centric' guidelines framed in the Shatrughan Chouhan case in 2014. He stated that the application was for more 'victim-centric' guidelines to be framed for the timely execution of death row prisoners.