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

Updated: Nov 17, 2023

Rishit Soni


Justice Hurried is Justice Buried


“Speedy Justice is a component of social justice the community, as a whole is concerned with the criminal being condoned and finally punished […]”.

- Krishna Iyer J[1]


The very idea of speedy justice is to make procedure reasonable enough to punish the criminal with adequate punishment for the complainant and society in criminal cases. When death penalty is meted out to those incapable of reformation, it is done with the idea of protecting society and law and order from acts that shock its conscience.[2] Though pleading guilty can help in the speedy disposal of cases, using it as an escape route from death penalty negates the objective of speedy justice, i.e., to ensure the criminal is given the punishment he/she deserves. The convict sentenced to life imprisonment can continue to foster and abet anti-societal elements while in prison and lead others to commit terrorist activities. Furthermore, it can also cause a compromise on behalf of the State by the action of others, where the State might be coerced to release certain leaders of banned organizations by posing a life threat to someone. This happened in the case of Rubaiya Sayeed’s kindapping, the daughter of the then Home minister of Jammu and Kashmir, where the State was asked to release certain terrorists by the Jammu and Kashmir Liberation Front in exchange for her life.[3] When the government did so, the release of the terrorists was perceived as a win by the JKLF, which later used the release as a way to increase militancy in the State in the early 90s.[4] A similar situation arose in Flight IC-814 hijacking, where Masood Azhar had to be released in exchange for the lives of various civilians.[5] Azhar, later on, was declared as the mastermind behind the 26/11 attacks of Mumbai that followed as a result of his release.[6]

In the case of life imprisonment, the minimum period that the convict is required to spend in prison is fourteen years, after which they become eligible for remission.[7] In a situation where an accused has pleaded guilty and has been sentenced to life imprisonment by the court under offences against the State or UAPA, it might result in a release after fourteen years or more, provided he is considered fit for remission under certain prison guidelines.[8] These are developed by the State and Central Government as well, though the latter formulates only non-binding guidelines. In case an accused is convicted on terror charges, like in the situation of Yasin Malik as mentioned above, ideally the Central Government’s guidelines would deny remission due to the seriousness of terror charges. However, not only are they non-binding, the State government can alter the aforementioned provision of the Centre’s guidelines –vis-à-vis their own State– and provide remission to terror convicts. If this takes place, then a convict who had pleaded guilty to escape death penalty would be sentenced to life imprisonment, thereby providing them an opportunity to leave the prison on remission. Subsequently, he might carry out activities of similar nature after leaving the prison.

In such situations, if speedy justice is considered to be a component of social justice, how can social justice be provided if the life imprisonment of a prisoner has the ability to put the lives of civilians in danger, as shown above? If pleading guilty is used as the bar to show that the accused is capable of reformation and hence does not deserve death sentence in a bid to provide speedy justice, then not only does that cause a miscarriage of justice, but it can also negate the purpose of speedy justice in the long run, when the lives of civilians are held against releasing a prisoner. This shows the effects that can occur if death penalty is not handed out on other factors but on pleading guilty.


Pleading Guilty and the Accused: Boon or Bane?


We have discussed the effects of pleading guilty on society and the Indian state. However, it also affects the standing of the accused, especially one not necessarily guilty of the charge against him. A significant criticism of plea bargaining is that the accused sometimes pleads guilty to a lesser charge against his wish, which we would not have without the bargain.[9] Even courts have taken note of this and considered this bargain to have been illegal.[10]As discussed above, though plea bargaining is not legal in terror charges, pleading guilty is a better option to help one escape death penalty and settle for it. Being accused of an offence for which the death penalty can be given can cause mental strain. Even if the accused feels that they are not guilty, there is still a possibility of them pleading guilty to escape the possibility of being sentenced to death since it can help them escape death penalty. The accused might not have taken part in any of the offences he has been accused of, but to be safe, he takes the escape route. Such a phenomenon can occur despite the rule that no innocent should be convicted in a court of law.[11] Justice meted to the accused is unfair if they use the plea as an escape route. They will trample on their own right to fair trial as the accused will be compelled to be a witness against himself if this route exists to alleviate any strain on their mind.[12]

In the case of State of Gujarat vs Natwar Harchandji Thakor, however, it was held that not every plea of guilt that is a part of the statutory process in a criminal trial should be understood as a part of illegal plea bargaining.[13] It held that such pleas can be construed only depending on the facts of the case and the evidence at hand. There might have been no bargaining between the prosecution and the defence, and hence, no actual case of plea bargaining. However, as the author has been highlighting, this situation might not be the same as plea bargaining but has effects similar to that. Hence, there might not be any evidence of plea-bargaining taking place. However, due to the accused’s own choice or due to his conversation with his counsel, the effects of such might be the same as illegal plea bargaining since it is not permitted for cases involving terror charges.

This affects the accused’s right to a fair trial, without having to choose substitutes that impact the justice meted out to them.


Conclusion


The objective of this paper has been to highlight what happens when pleading guilty is considered a mitigating factor by the court while deciding whether the accused should be sentenced to death. We discuss terror charges not only due to their socio-economic relevance but also because the legislature has considered death penalty a valid sentence under such offences. Its legitimacy has also been upheld various times by the SC. Using the plea of guilt puts a façade that the accused feels remorse and is capable of reformation. It not only dilutes the offence but also opens Pandora’s Box for various situations described above.

This paper does not try to dilute the relevance of mitigating factors in cases where the death penalty can be a sentence. It recommends that especially in such cases, where the motive of the accused to plead guilty might be compromised and might have other considerations, the plea of guilt should not be considered as a relevant mitigating factor, nor should it be considered by the court as an indicator of the accused’s capability of reformation. The Solicitor General makes a valid point when he says that the accused cannot hide behind their pleas to escape the punishment they deserve, and the sooner the court takes the right decisions in the name of justice, the better.



[1] Babu Singh and Ors v. The State of U.P., AIR 1978 SC 527. [2] Machhi Singh and Ors. V. State of Punjab, AIR 1983 SC 957. [3] Outlook, Rubaiya Sayeed Identifies Yasin Malik As Her Abductor, All You Need To Know About Her Abduction, July 15, 2022, available at https://www.outlookindia.com/national/explained-the-rubaiya-sayeed-abduction-the-trial-in-court-and-how-it-played-out-in-kashmir-news-199059 (Last seen on October 8, 2023). [4] First Post, Explained: The abduction of Rubaiya Sayeed in 1989 and the connection to JKLF chief Yasin Malik, July 18, 2022, available at https://www.firstpost.com/india/explained-the-abduction-of-rubaiya-sayeed-in-1989-and-the-connection-to-jklf-chief-yasin-malik-10923901.html (Last seen on October 8, 2023). [5] India Today, Kandahar hijacking: How IC-814 passengers were freed, Jul 31, 2023, available at https://www.indiatoday.in/india-today-insight/story/from-the-india-today-archives-2000-kandahar-hijacking-how-ic-814-passengers-were-freed-2315945-2023-01-01#lnh9o99ryd3zcl5tag (Last seen on October 8, 2023). [6] The Hindu, 26/11 planner Sajid Mir was arrested and convicted within weeks, June 27, 2022, available at https://www.thehindu.com/news/national/2611-planner-sajid-mir-was-arrested-and-convicted-within-weeks/article65573701.ece (Last seen on October 8). [7] Bhagirath and Ors. V. Delhi Administration, AIR 1985 SC 1050. [8] The Print, Parole, furlough, remission: All give relief to convicts, but this is how they’re different, August 4, 2021, available at https://theprint.in/judiciary/parole-furlough-remission-all-give-relief-to-convicts-but-this-is-how-theyre-different/708417/#lnh9xalpf2pej56vjpt (Last seen on October 8, 2023). [9] Thippaswamy v. State of Karnataka, AIR 1983 SC 747. [10] The State Of Gujarat v. Uttam Bhikhu Prajapati, (1990) 2 GLR 1244. [11] Fritz Allhoff, Wrongful Convictions, Wrongful Acquittals, and Blackstone's Ratio, 43 Austl. J. Leg. Phil. 39 (2018). [12] The Constitution of India, 1950, Art. 20(3). [13] State of Gujarat v. Natwar Harchandji Thakor, 2005 SCC OnLine Guj 320.

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