Human Sacrifice, Sentencing and the Death Penalty

In the judicial discourse on the relationship between human sacrifice and punishment in criminal law, there are glaring errors. Looking closely at the Supreme Court’s judgment in Ishwari Lal Yadav v State of Chhattisgarh, the deviation from the principle of individualised sentencing and the consequences of ignoring evidence on the complex anthropological and psychological dimensions of human sacrifice are reflected upon.

In October 2019, a three-judge bench of the Supreme Court in Ishwari Lal Yadav v State of Chhattisgarh (2019)1 confirmed death sentences for the married couple Kiran Bai and Ishwari Yadav in a case involving human sacrifice of a two-year-old.2 Relying on the guidelines laid down in Sushil Murmu v State of Jharkhand (2004)3 (another case on human sacrifice), it held that the present case was “the rarest of the rare,” meriting the death sentence, as had been rightly held by the courts below.

This article highlights the stark errors in the judicial discourse on human sacrifice. In the Ishwari Lal Yadav case, the Court completely disregarded the cultural context of human sacrifice and its implications on questions of culpability in criminal law. It is argued that the Court’s approach is contrary to the principle of individualised sentencing, and ignores evidence on the complex anthropological and psychological dimensions of human sacrifice.

The article also demonstrates the broader problems with the sentencing process in the decision, as the Court mainly relies on aggravating factors with little regard for mitigation. Further, the Court justifies the death sentence by relying on the prior decision in the Sushil Murmu case, raising questions about compatibility between the use of similar precedents and the idea of individualised sentencing. There are also concerns with using the Sushil Murmu case as the only precedent on the basis of similarity of offences, given that there are other previously decided cases of human sacrifice, where death has been commuted to life imprisonment.

The judgment notes that Kiran and Ishwari were self-professed tantrics who performed human sacrifice so that Kiran could attain siddhi (spiritual enlightenment). Based on the evidence on record, the Supreme Court convicted the accused persons for the murder of a two-year-old child as a “sacrifice to God.” While deciding the appropriate punishment, the Court emphasised on the manner of the commission of the offence, that is, severing the head and cutting the tongue and cheeks of the victim. Based on this, the Court concluded that the accused persons lacked “basic humaneness” and were therefore incapable of reform and, thus, deserving of the death penalty.

Absence of Cultural Context

Interestingly, the Court is quick to draw inferences about the character of the accused persons, in order to arrive at the quantum of punishment, without making any attempt to understand the cultural context within which it is taking place. The Court fails to notice the fine lines separating an ordinary “planned murder” and killing as a “sacrifice to God,” and makes sweeping statements that serve to dehumanise and demonise the accused. This line of reasoning was also adopted in the high court’s confirmation order in the Ishwari Lal Yadav case, characterising the accused as “intelligent and diabolical human beings,” implying heightened culpability, as the accused persons were aware of the consequences of their actions.

Such a judicial approach stands in sharp contrast to the sociological and anthropological understanding of human sacrifice. Anthropological studies have noted that societies that see the prevalence of human and animal sacrifices to deities are often primitive.People who engage in such acts are not “diabolical villains,” but persons from vulnerable socioeconomic, rural and tribal backgrounds, who may resort to blood offering to call forth things they see in abundance with the wealthy people (Padel 2009; Parry 2015). The binding nature of a call for human sacrifice has been demonstrated by Parry (2015), in his ethnographic work on the subject in Bhilai, Chhattisgarh. He notes that balis, or sacrifices, are seen as being essential to keep the gods happy, who make demands by appearing in dreams. Not meeting these demands, it is believed, leads to one fatal accident in the community following another. Thus, often, sacrificing one human makes economic sense—giving up one life for the safety of the entire community. Even in cases where sacrifices are not conducted for the safety of the community, but rather for gaining individual wealth or power, it is influenced by social and cultural practices (Parry 2015).

An ordinary, law-abiding person may commit a crime solely because the values of their native culture drive them to do so, and it is imperative that legal systems must place these individuals within their social context while seeking to punish them. In the case of human sacrifice, the anthropological and psychological factors involved are necessarily far more complex than the ones anticipated by the law. This begs the question about an individual’s culpability when their wrongful actions are propagated by their cultural location. Should courts recognise cultural defence in criminal proceedings (Harvard Law Review Association1986)?

Admittedly, the role of cultural defence in criminal trials to reduce charges or acquit is highly contested, given that cultural values have to be balanced against the maintenance of social order in enforcing the laws. However, within a framework of individualised sentencing, where punishment must be tailored to fit the degree of the accused’s culpability, these cultural factors must be accounted for appropriately. Moreover, such factors can be used to mitigate the punishment for a crime without completely absolving the defendant of guilt (Choi 1990).

The Court’s approach in sentencing Ishwari and Kiran to death, however, is devoid of any of these considerations. The Court, unfortunately, displays no sociological or anthropological understanding of human sacrifice and makes no attempt to place the accused persons within their cultural context. The sentencing justifications adopted by the Court do not give any regard to their life history, cultural or social background, which is absolutely essential to the process of individualised sentencing. The need for this was even stronger, given the value of prior legal decisions involving similar crimes, which have placed weight and have taken account of the social context in which human sacrifice is practised.

In State of Maharashtra v Damu S/o Gopinath Shinde and others (2000), the Supreme Court considered the alienness of the belief system of the accused, who had sacrificed five children in order to recover a mythical underground treasure, and commuted the death sentence to life imprisonment. In State (Government of NCT of Delhi) v Jitender Kumar and Another (2013), which was also a case of human sacrifice where a death sentence had been imposed by the trial court, the Delhi High Court commuted the death sentence on the basis of cultural and psychological factors relating to the accused. In the absence of adequately engaging with difficult questions of the individual case, the court’s reasoning appears ill-informed of the crime that it seeks to punish.

Concerns with Capital Sentencing

In the present case, the Court rightly notes that there cannot be any hard-and-fast rule for weighing the aggravating and mitigating circumstances, and each case must be decided on its own merits. This is consistent with the ruling in the constitution bench decision of the Supreme Court in Bachan Singh v State of Punjab (1980), which held that capital punishment is permissible only in the rarest of the rare cases where the option of life imprisonment is unquestionably foreclosed.4 Individualised sentencing, giving weight and consideration to circumstances relevant to the offence and the offender, is an inseparable part of this process. However, in the present case, the Court fails to appreciate the essence of the Bachan Singh case framework.

In the brief discussion on sentencing, the judgment does not account for Kiran and Ishwari’s historical, social, cultural, biological, and psychological contexts, which would be crucial to the identification and meaningful consideration of mitigating circumstances favouring the accused. Aggravating circumstances, on the other hand, are elaborately drawn out, and the Court has clearly taken into consideration the brutal manner of killing of the children, despite the accused having children of their own. The prior involvement of the accused in a similar offence also finds mention in the judgment as an aggravating factor.

Mitigating circumstances of the accused, however, are conspicuous by absence. The only mitigating circumstance that the Court makes a mention of is the probability of reformation of the accused persons, which it subsequently dismisses on the basis of the nature of the crime, noting that the accused “completely lacked the psyche or mindset which can be amenable for any reformation.” It is difficult to ascertain the basis on which the Court arrived at this conclusion without access to any mitigation evidence. Further, due to the unavailability of such evidence, it is unsurprisingly impossible for the Court to determine why the question of life imprisonment is unquestionably foreclosed, and which consequently remains unaddressed in the judgment.

One factor that has played a determinative role in deciding the punishment for the Court, in this case, is the reliance placed on the precedent in the Sushil Murmu case, which was another case with similar facts involving human sacrifice of a child. Interestingly, the Court in the Sushil Murmu case imposed the death sentence without any attempt to consider mitigating circumstances or the alternative of life imprisonment.5 The use of precedents by courts in capital cases is a matter of concern and has been acknowledged by the Supreme Court in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009).6

In the Santosh Bariyar case, the Court highlighted the fact that the Bachan Singh case framework has been subject to multiple meanings by different benches, and thus, there are different cases with similar facts where death has been confirmed or commuted, depending on the judge deciding the case. It is possible, therefore, to rely on any case with similar facts where death has been imposed, and use it to confirm the sentence, while completely ignoring other cases where the punishment has been commuted to life imprisonment. The Supreme Court in the present case has adopted a similar approach, where it has relied solely on the Sushil Murmu case, to confirm the death sentence.

The practice of invoking “similarity” to rely on a precedent and subsequently replicating the outcome goes against individualised sentencing, which lies at the core of Bachan Singh case framework. This precludes the possibility of identifying and considering mitigating factors that might be exclusive to that particular case, leading to a standardisation of sentencing process, which the judgment in the Bachan Singh case categorically warned against. Using precedents based on the similarity of the crime, leads to a situation where there is equality of outcomes, without any equality in the sentencing process used to arrive at that outcome.

Moreover, in the present case, it is also difficult to understand the exclusive reliance on the Sushil Murmu case where the death sentence was confirmed, as opposed to certain others where the Court of equal bench-strength, taking into account the cultural context of the crime, had commuted the death sentence. For instance, as noted above in the Damu S/o Gopinath Shinde case, the apex court had commuted the capital sentence, observing that “it was due to utter ignorance that (they) became so gullible to such superstitious thinking.”

Similarly, the Delhi High Court too, in the Jitender Kumar case, as mentioned above, observed that while superstitious beliefs and practices may seem abhorrent to “rational minds,” they are “real and offer the promise of benefits to those who believe in them.” The Supreme Court, in the present case, while invoking a precedent to confirm the death, conveniently chose to ignore other cases with similar facts where the outcome was different. This brings into question the process of adjudication that has been undertaken in this decision where one judgment is exclusively relied on, while ignoring another judgment of the same bench-strength, without providing any justification for the same. This is not to say that the Court was bound by the decision in the Damu S/o Gopinath Shinde case, but to argue that there certainly is a duty on the Court to justify the reliance on the Sushil Murmu case.

In Conclusion

The Supreme Court’s decision in the present case highlights the legal system’s struggle with making sense of crimes motivated by superstitions and cultural beliefs from psychologically and anthropologically sensitive perspectives. The variation between the law and the social sciences on this account is rather wide and stark. The inept understanding of human sacrifice by the Court is indicative of other failings of the capital sentencing in India, such as the failure to comprehensively appreciate mitigating factors, the failure to holistically understand the cultural locationof the accused, and the failure to understand the true nature of ritualistic violence. Interdisciplinary engagement with the anthropological and psychological dimensions of human sacrifice is essential to ground the relevance of mitigating circumstances and the capacity for reform in such cases.

The judgment, of course, is one of the many pronouncements, which speak of the problems surrounding the jurisprudence on capital sentencing in India. Relying on precedents with similar facts, while ignoring individual circumstances of the accused, might produce standardised sentences for certain crimes, but at the cost of equalising the sentencing process. A crime-centric approach to punishment is bound to lead to the imposition of death sentences, without due regard for the circumstances of the offender. Sentencing courts must appreciate the fact that in order to truly individualise the punishment, it must be proportionate not just to the heinousness of the offence, but also to the culpability of the offender.

* The authors are thankful to Peter John, who worked with the Mental Health Research Project at Project 39-A. Peter conducted research on human sacrifice and the death penalty and also organised a conference for Project 39-A in September 2016, details of which can be found here.

Notes

1 The judgment was authored by Justice R Subhash Reddy for the three-judge bench comprising Justice R F Nariman, Justice Surya Kant and himself.

2 Project 39A, National Law University, Delhi was involved in the litigation in this case in the Supreme Court.

3 In this case involving human sacrifice of a boy, a two-judge bench of the Supreme Court comprising Justices Doraiswamy Raju and Arijit Pasayat in December 2003 dismissed the criminal appeal and confirmed the death sentenceimposed on Sushil Murmu by the trial court and the high court.

4 Para 209 of Bachan Singh v State of Punjab (1980).

5 Para 22 and 23 of Sushil Murmu v State of Jharkhand (2004).

6 Para 125 of Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009).

References

Choi, Carolyn (1990): “Application of a Cultural Defense in Criminal Proceedings,” UCLA: Pacific Basin Law Journal, Vol 8, No 1, pp 80–90.

Harvard Law Review Association (1986): “The Cultural Defense in the Criminal Law,”Harvard Law Review, Vol 99, No 6, pp 1293–1311.

Padel, Felix (2009): Sacrificing People: Invasions of a Tribal Landscape, New Delhi: Orient BlackSwan.

Parry, Jonathan (2015): “The Sacrifice of Modernity in a Soviet-built Steel Town in Central India,” Anthropology of This Century, No 12, http://aotcpress.com/articles/sacrifices/.

Winkelman, Michael (1996): “Cultural Factors in Criminal Defense Proceedings,” Human Organisation, Vol 55, No 2, pp 154–59.

Cases Cited

Bachan Singh v State of Punjab (1980): SCC, SC, 2, p 684.

Ishwari Lal Yadav v State of Chhattisgarh (2016): Criminal Reference No 4 of 2014, High Court of Chhattisgarh judgment dated 30 November.

Ishwari Lal Yadav v State of Chhattisgarh (2019): SCC, SC, 10, p 423.Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009): SCC, SC, 6, p 498.

State (Government of NCT of Delhi) v Jitender Kumar and Another (2013): ILR, HC of Delhi, 2, p 1168.

State of Maharashtra v Damu S/o Gopinath Shinde and Others (2000): AIR, SC, p 1691.

Sushil Murmu v State of Jharkhand (2004): SCC, SC, 2, p 338.