By Vivek Punia
Introduction
The Constitution of India guarantees multiple rights to its citizens. All other fundamental rights are secondary to the ‘Right to Life and Liberty’ as all such rights cease to exist once the life extinguishes. Therefore, the fact that death penalty is an irreversible form of punishment demands that the standards and precedents allowing it to be of such precise nature to negate any future introspection of its legality. Recently, the State of Washington echoed these concerns while outlawing capital punishment for the reasons for arbitrariness in its implementation and not achieving any penological goals. The capricious nature in which the capital sentence is handed out was highlighted yesterday by the Supreme Court in Pappu @ Chandra Kumar v. State of Uttar Pradesh, where the appellant’s sentence of death was confirmed by the High Court for without application of mind. The Supreme Court set aside the judgment of the High Court observing that,
“Strangely, however, none of these arguments of the appellant or the respondent were discussed and considered. After recording of the arguments, the judgment straightaway proceeds to discuss the question of sentence.”
The Supreme Court remitted the case to the High Court for fresh disposal on merits as it found that no discussion had taken place as to the legality and efficacy of the sentence handed out.
This article seeks to bring out the capricious nature in which the courts have dealt with capital punishment in India rendering it violative of Articles 14 and 21 of the Indian Constitution.
The Development of Two Divergent Opinions
The Supreme Court in Bachhan Singh v. State of Punjab, while laying down the ‘rarest of rare’ doctrine, made an attempt to crystallize the principles of sentencing with respect to capital punishment and culled out three decisive principles to be kept in mind:
- That for persons convicted of murder, life imprisonment is the rule and death sentence an exception;
- Capital punishment ought to be imposed only in the rarest of rare cases when the alternative option is unquestionably foreclosed; and
- Capital punishment to be imposed taking into account the aggravating and mitigating circumstances in a case, paying due regard to the “circumstances of the offence,” as well as the “circumstances of the offender”.
A step by step process was devised by the Court to save capital punishment from being imposed in an arbitrary and brutish manner. Capital punishment was envisaged to be imposed only when the following three steps were satisfied:
- Convictions for an offence punishable with capital punishment;
- Coming to the conclusion that the case falls in the rarest of the rare category; and
- Concluding that none of the mitigating factors is in favour of the accused.
It is the third step that has been the source of major controversy with convicts having been sent to the gallows with a question mark as to whether the Court gave any consideration to the mitigating factors. In Bachhan Singh, the Court had also enumerated some of the mitigating circumstances which are to be taken into consideration while imposing a sentence, three of these circumstances which have been most arbitrarily and inconsistently applied are:
- The age of the accused. If the accused is young or old, he shall not be sentenced to death;
- The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; and
- The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions above.
The inconsistency in approaching sentencing policy for capital punishment arose in Machhi Singh v. State of Punjab, wherein the Supreme Court while interpreting the ratio in Bachhan Singh’s case held that a balance sheet of aggravating and mitigating circumstances has to be drawn up. In doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Supreme Court also proposed that the following question be answered before deciding between life imprisonment and capital punishment:
“Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”
The ratio laid down in Machhi Singh’s case, delivered by a three-judge bench, was in essence diametrically opposite to the ratio in Bachhan Singh’s case delivered by a constitution bench of five-judge thus giving rise to a parallel line of cases having different penological standards from those laid down in Bachhan Singh’s case. The Supreme Court in Bachhan Singh’s case reserved the capital punishment only when none of the mitigating circumstances was in favour of the accused while in Machhi Singh’s case the Supreme Court laid down that if the Court finds the crime to have been committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner, then the mitigating circumstances would be rendered irrelevant.
Multiple mistakes and late realizations
In 1996, the Supreme Court decided Ravji alias Ram Chandra v. State of Rajasthan, wherein while awarding death sentence to the petitioner, the Court held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Later on, 2009, this decision was deemed to be per incuriam to the Bachhan Singh’s judgment by the Supreme Court in Santosh Bariyar v. State of Maharashtra noting that the case was patently erroneous. Sadly, until the Court could realize its mistake, Ravji’s judgment had already been followed in at least six subsequent decisions by the Supreme Court.
The young age of the accused was specifically stated by the Supreme Court in Bachhan Singh to be a mitigating factor, but the Supreme Court subsequently in several cases failed to take into account this factor. In a 1994 case of Dhananjoy Chatterjee v. State of West Bengal, the Supreme Court awarded death penalty for rape and murder of an 18-year-old to the accused who was about 27 years old at the time of sentence. It was only in 2011 that the Supreme Court realized its mistake and changed its stance in such matters. In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, which involved similar facts and circumstances, the Court, after reference to a larger bench as the judges differed on the question of sentence, observed that since the accused was only 27 years old and the Trial Court had not given a finding as to the non-possibility of reform and rehabilitation of the accused, it would not be proper to award a death sentence.
Yet another glaring inconsistency in the application of the Bachhan Singh dictum is in the non-consideration of the factor that the accused has a possibility to reform and be a useful member of the society. One example is the decision in Mohd. Mannan v. State of Bihar, where the Supreme Court stated that once it is established that the accused is a menace to the society and would continue to be so, the Courts should not hesitate in handing out a death sentence. A thorough reading of this judgment shows no discussion to show how the Supreme Court, in this case, came to the conclusion that the accused is a menace to the society without any possibility of reform so as to necessitate a sentence of death. The only factor that seems to have influenced this outcome is the nature and gravity of the crime which is apparent from the use of the words ‘brutal’, ‘grotesque’, ‘diabolical’, ‘revolting’ and ‘dastardly’ to describe the crime. In fact, the Law Commission of India in its’ 262nd report had listed 16 cases where the sentence of death imposed by the Supreme Court was doubted in subsequent cases by the Supreme Court itself.
Concluding Remarks
There have always been justifications for the retention and abolition of the death penalty and people on either side of the fence are unlikely to cross over the other side, but from a purely legal perspective, the taking of a one’s life through the instrumentality of the State requires a precise and unambiguous set of rules and precedent which are not subject to a Judge’s prejudice. The 262nd report of the Law Commission of India has already recommended that the death penalty be abolished except for cases related to terrorism as it serves no penological purpose. The voices have been raised from within the judiciary itself, most recently in Channu Lal Verma v. State of Chhattisgarh, J. Kurian Joseph stated that “capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice.” The Supreme Court in Bachhan Singh made a shift in the sentencing policy from the deterrent and retributive approach to the reformative in line with the shift in global penological goals. Given this shift in sentencing policy constantly being pulled back to the old goals of retribution and deterrence through conflicting and arbitrary decisions, the justification for retaining capital punishment now needs to pass not only the morality test, but also the legal barriers of being based on sound legal principles and precedent which would make it more objective than subjective.
[Vivek Punia is currently working as a Judicial Clerk to Hon’ble Mr Justice Vinod Goel at the Delhi High Court.]
The Criminal Law Blog 