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DEATH PENALTY IN TERRORISM: SHOULD PLEADING GUILTY BE A RELEVANT FACTOR?- Part I

Updated: Nov 17, 2023

Rishit Soni

Introduction


Recently, the Solicitor General of India, Tushar Mehta, filed a petition in front of the Delhi High Court as an appeal against the National Investigative Agency (‘NIA’) court’s judgement on Yasin Malik, requesting it to convert the sentence to the death penalty.[1]Yasin Malik, a popular leader of the Jammu and Kashmir Liberation Front (‘JKLF’), who has been held responsible for various deaths across the Kashmir valley in the 1990s,[2] notably of Air Force personnel, had pleaded guilty to some of his crimes last year and was sentenced by the court with life imprisonment.[3] The Solicitor General said that the accused used the plea of guilt as a way to escape the death penalty so that the court would show mercy on him and requested the court not to let the plea become a free pass to escape the requisite punishment.

This paper asks- How accurate the Solicitor General’s remarks are: Does pleading guilty have the force of preventing a death penalty from being meted out? If yes, how does it affect the legal system vis-à-vis adjudicating justice in terror charges? It goes on to explain how pleading guilty can help one escape the death penalty, what kind of actions and turn of events this “escape route” from death sentence gives rise to concerning cases of terrorism, and the consequences it has on both the society and the accused. It concludes by arguing that pleading guilty is a façade to show that the accused is capable of reformation and hence should not be considered a relevant factor while adjudicating a terror charge, considering the socio-economic impact of such offences.


Death Penalty and the Plea of Guilt


While giving its reasons for not granting death sentence to Yasin Malik, the court gave several reasons why the case did not fit the exception of the death penalty as laid down by different Supreme Court (‘SC’) judgements.[4] However, the fact that the accused had pleaded guilty was not given as one such reason. However, the amicus curiae, appearing on behalf of the accused, submitted that the accused pleading guilty was a pointer of reform and should have been considered. The reformative theory has gained traction in Indian courts, with Krishna Iyer J holding that all circumstances ought to be considered before sentencing an accused, including the ability to reform.[5] Even recently, in 2021, the SC has upheld reformative theory while granting punishment.[6] Since granting of death sentence requires us to account for all aggravating and mitigating circumstances,[7] it is essential to see if the plea of guilt counts as a mitigating factor while considering the death penalty as punishment for the accused.

A mitigating factor is a circumstance justifying the passing of a lighter sentence, as opposed to aggravating factors, to show that the accused would not cause a threat to society.[8] Death sentence, on the other hand, should be granted due to an act exceptional enough to shock the collective conscience of society,[9] rendering the accused is incapable of reformation.[10] The question that should be asked before handing out the penalty is whether the circumstances of the crime are such that there is no alternative to death penalty, even after giving maximum weightage to the mitigating factors.[11] Krishna Iyer J had held that facts of a social or personal nature should be brought to the notice of the court when the sentence is being determined, even if they are found to be irrelevant.[12]These factors could also include the plea of guilt. An accused pleading guilty might give the impression that they accept their crime and seek reform to prevent a repeat, as has been done in this case.[13] Thus, if the accused is able to prove his capacity to reform, the court could consider it as a relevant factor to prove his/her’s lack of threat to society. Such weightage might deter a death sentence from being meted out to the accused, despite the crime shocking the collective conscience of society.

Similarly, the plea of guilt has been used to prevent death sentence from being meted out. A relevant example in the case of terrorism would be the case of David Headley,[14] who had a role in the conspiracy regarding the 26/11 attacks and other acts of terrorism abroad. Headley pleaded guilty and was sentenced to thirty-five years of imprisonment instead of death penalty.[15] Though the jurisdiction was with the United States, it holds relevance for India as courts have regularly cited American judgements to reach a decision.[16]


Consequences of Pleading Guilty


If the standard mentioned above is practiced by our courts, in essence, if they utilize the plea of guilt to grant a lower sentence than death sentence to the accused, they might generate a completely new phenomenon, or one similar to what has been developed in a previously existing remedy for the accused called plea bargaining.[17] This phenomenon, the author argues, is undesirable in situations explained above, where terrorism is involved as charge. Under this, one of the following systems that is followed is where through a dialogue with the prosecutor, the defendant pleads guilty to a specific, or less severe charge, for a more lenient sentence.[18]

For example, in the given case, Yasin Malik has been said to have killed Air Force personnel,[19] yet the order on the sentence by the NIA court sentence never discusses his case under the offence of murder of members of the armed forces.[20] Instead, the charge focuses on offences against the State and Unlawful Activities Prevention Act’s (‘UAPA’) provisions about funding terrorist activities. Though the charge of waging war against the State provides for a death sentence,[21]like the murder charge, the other charges under UAPA do not provide a sentence more than life imprisonment.[22] It shows how the gravity of the offences the accused has been convicted for is less than what could have otherwise been framed, but a trial for a charge of murder never took place.[23]

Though there is no record of a dialogue here between the prosecutor and defendant, the effect of framing a lesser charge is similar to what happens in the case of plea bargaining, where the trial finishes quickly with the defendant pleading guilty to a lesser sentence. In 2006, plea bargaining was added as an official, formal system under the Code of Criminal Procedure (‘CrPC’),[24] to prevent unnecessary delays in cases and grant speedy access to justice.[25] Plea bargaining embodies the phrase, “Justice delayed is justice denied”, allowing the accused to escape the long-drawn effects of a trial by pleading guilty to his charge.[26]

However, Indian law has a unique position as it allows plea bargaining only in some instances. Under the CrPC, plea bargaining is not allowed in cases where the offence is not punishable by death, life imprisonment or imprisonment exceeding seven years.[27] The Law Commission, in its report, has also stated that plea bargaining should not be available to those who are accused of socio-economic offences of a grave nature.[28] Hence, considering the effect that offences under UAPA and those against the State have on the country’s socio-economic conditions, plea bargaining is rendered illegal in such situations. However, suppose pleading guilty allows an accused to escape death penalty, as argued above. In that case, it has the effect that plea bargaining does by speeding the trial and getting the accused convicted for a lesser sentence.

It is imperative to understand the ramifications of such a situation. Plea of guilt becomes a free pass for an accused charged under such offences to escape death penalty. It influences the mind of the accused, who pleas for guilt based on his reduction of sentence, and has an impact not only in delivering justice but also on the accused’s mindset, which has a severe impact, as will be discussed below.





[1] Hindustan Times, Can’t Compare Yasin Malik to Osama Bin Laden, May 29, 2023, available at https://www.hindustantimes.com/cities/delhi-news/delhi-hc-tells-yasin-malik-to-respond-to-nia-s-petition-seeking-death-penalty-over-life-term-in-terror-funding-case-101685358522445.html (Last seen on October 8, 2023). [2] Outlook, Explained: What’s 1990 J & K Air Force Officers Killing Case, Why Has Yasin Malik’s Hearing been Deferred, April 1, 2023, available at https://www.outlookindia.com/#lnh78h3ode7scurm8n (Last seen on October 8, 2023). [3] BBC News, Yasin Malik: Top Kashmiri separatist given life in Indian jail, May 25, 2022, available at https://www.bbc.com/news/world-asia-india-61575778 (Last seen on October 8, 2023). [4] Bachan Singh v. State of Punjab, 1982 AIR 1325. [5] Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443. [6] Mofil Khan vs The State Of Jharkhand, (2021) 2021 SCC OnLine SC 1136. [7] Bachan Singh v. State of Punjab, 1982 AIR 1325. [8] Id. [9] Mukesh & Anr. v. State for NCT of Delhi, (2017) 6 SCC 1. [10] Id. [11] Raisul v. State of U.P., AIR 1977 SC 1822. [12] Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443. [13] State v. Mohd. Yasin Malik, 2022 SCC OnLine Dis Crt (Del) 21. [14] Mint, Mumbai attack convict David Headley cannot be extradited to India: US attorney, June 27, 2020, available at https://www.livemint.com/news/india/mumbai-attack-convict-david-headley-cannot-be-extradited-to-india-us-attorney-11593240687214.html (Last seen on October 8, 2023). [15] Office of Public Affairs, David Coleman Headley Sentenced to 35 Years in Prison for Role in India and Denmark Terror Plots, January 24, 2013, available at https://www.justice.gov/opa/pr/david-coleman-headley-sentenced-35-years-prison-role-india-and-denmark-terror-plots (Last seen on October 8, 2023). [16] Arun K. Thiruvengadam, Forswearing "Foreign Moods, Fads or Fashions"? - Contextualising the Refusal of Koushal to Engage with Foreign Law, 6 NUJS L. Rev. 595 (2013). [17] Dr. Avimanyu Behera , Plea bargaining in India, 56 (2) The Indian Police J. 72 (2009). [18] Rebecca Hollander- Blumoff, Getting to Guilty: Plea Bargaining as Negotiation, 2 Harv. Negot. L. Rev. 115 (1997). [19] Times of India, 1990 killing of 4 IAF officers: Yasin Malik appears in special court in Jammu through Video Conference, October 19, 2022, available at https://timesofindia.indiatimes.com/india/1990-killing-of-4-iaf-officers-yasin-malik-appears-in-special-court-in-jammu-through-video-conference/articleshow/94970242.cms (Last seen on October 8, 2023). [20] State v. Mohd. Yasin Malik, 2022 SCC OnLine Dis Crt (Del) 21. [21] The Indian Penal Code, (45 of 1860), § 121. [22] The Unalwful Activities (Prevention) Act, 1967. [23] State v. Mohd. Yasin Malik, 2022 SCC OnLine Dis Crt (Del) 21. [24] The Code of Criminal Procedure, 1973, Ch. XXIA. [25] Law Commission of India, Report on Code of Criminal Procedure, Report No. 104 (1996). [26] Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407 (2007-2008). [27] The Code of Criminal Procedure, 1973, §265A. [28] Supra note 24.

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