By Rajat Sharma
INTRODUCTION
Recently, while speaking to Project 39A of National Law University, Delhi, Retd. Justice Kurian Joseph echoed the concerns surrounding the awarding of death penalty or the capital punishment in India in the rarest of rare cases by the Supreme Court (hereinafter SC). This is a sentiment that was also highlighted in one of the judgements authored by him wherein he categorically stated that death penalty has been nothing but a failure at achieving its goals, the major one of them being acting as a deterrent to crimes, and the time is ripe to review its need as a punishment. The court in this case reversed a death penalty sentence imposed by Chattisgarh High Court and reiterated the settled position in this regard, placing reliance on the correct tests laid down in Bachan Singh v. State of Punjab. The settled position in this regard is that the “rarest of rare” standard has to be met and an alternative option must be unquestionably foreclosed. Despite a decision as recent as 2018 reiterating the correct position, the SC continues to ignore precedents and awards death penalty in a faulty manner. The decision that the author intends to emphasize upon and highlight is Khushwinder Singh v. State of Punjab. In this decision, the SC’s bench comprising of Justice AK Sikri, Justice Abdul Nazeer and Justice MR Shah confirmed the death penalty awarded to the appellant for murder of six persons belonging to a family.
RELEVANT FACTUAL BACKGROUND & DECISION
The case involved 6 murders, wherein the accused appellant pushed people into a canal willingly, allegedly in order to misappropriate a certain amount of money kept in the house of the deceased. The learned Sessions court awarded death penalty for the offence punishable under Section 302, Indian Penal Code. The Punjab and Haryana High Court further upheld the death penalty awarded by the lower court. The SC affirmed the award of death penalty to the accused, while failing to provide any analysis regarding how the court arrived at the conclusion. While application of the mandatory tests seem to be missing from the judgement, it is nothing short of astonishing that the court devoted merely one paragraph to the discussion on sentencing or punishment. The court based this on absence of any mitigating circumstances and describes the gravity of crime thereafter. It termed the crime as being “diabolical and dastardly”. The court without a substantive analysis held that this falls within the “rarest of rare” standard affirmed by the court in Mukesh v. State (NCT of Delhi) (hereinafter Nirbhaya case) in 2017. The court stated that there exists no alternative punishment suitable, except for death sentence. This, in my opinion is a very brave statement to make without even a discussion on alternative punishments. It is significant to note that the absence of mitigating circumstances is not the only factor that requires the court to discuss the possibility of alternative punishments, most likely life imprisonment. Further, Bachan Singh also mandated that “special reasons” are required to be recorded while awarding death sentences are the exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. This seems to be missing as well in the court’s decisional analysis.
MANDATORY TESTS – THE MISSING ELEMENT?
Bachan Singh v. State of Punjab, a constitutional-bench decision of the SC, is the leading precedent which laid down certain mandatory applicable tests before awarding death penalty to the accused for a crime. As mentioned earlier, death penalty can be awarded only in the rarest of rare cases and at the same time, an alternative punishment must have been unquestionably foreclosed. Further, both the circumstances of the offence as well as the offender are required to be kept in mind while discussing sentencing. The consideration of mitigating circumstances is a mandatory requirement as per the law laid down in this case. Out here, in Khushwinder’s decision, the SC observed that mitigating circumstances were absent altogether. There are several mitigating circumstances, including the age of the accused, whether the accused is a continuing threat to the society or not etc. However, the one circumstance where courts have acted in a discretionary manner is the consideration of the possibility of reformation and rehabilitation of the accused. The onus to disprove this possibility lies on the state. On this aspect, Bachan Singh mandated that the possibility of reformation must be discarded, before awarding death sentence. It is this aspect of reformation and rehabilitation that was absent in this decision.
CONSIDERATION OF REFORM OF THE CRIMINAL
In 2018 itself, a 3-judge bench led by Justice Kurian Joseph in Channu Lal Verma v. State of Chattisgarh held that a proper psychological or psychiatric analysis of the accused must be done by courts in order to assess the possibility of reformation of the criminal. At a factual level, this case involved pre-meditated murders of 3 persons and causing grievous injuries to 3 others. The court in this case commuted the death penalty to life imprisonment and drew and important observation from Bachan Singh, stating that, under Section 354(3), CrPC, for persons convicted of murder, life imprisonment is the rule and death sentence an exception. The court in this case fails to explain how an alternative option was foreclosed and there is no mention of the possibility of the reform and rehabilitation of the accused. The court merely relied upon the Nirbhaya case to hold that the present case is the rarest of rare. While the court did mention that the counsel for the accused did not provide any mitigating circumstances, the court’s duty does not end there. It is imperative that the state disproves the very possibility and the court ensures that no reform can be made. The court failed to provide for any such psychological analysis of the accused, which was recently mandated by the very court. Further, the court fails to analyse why life imprisonment shall not suffice as an alternative option in the present case. It was observed by Justice Joseph in Channu Lal that it is a court’s failure and arbitrary sentencing when the court fails to ensure that there is ample consideration provided for the reform of the accused. Further, the court in Channu Lal analysed very accurately as to whether the Chattisgarh High Court has applied mandatory tests and upheld death penalty after consideration of all circumstances, as laid down in previous precedents, including Bachan Singh, Machhi Singh v. State of Punjab, Santosh Bariyar v. State of Maharashtra, and Shankar Kisanrao Khade v. State of Maharashtra. This analysis is absent in Khushwinder Singh.
CONCLUSION
The decision of upholding the accused person’s death sentence was passed by the court post a sequence of commutations followed by this decision. The court had finally acquitted the convicts in Ankush Maruti Shinde‘s case that was wrongly decided by the SC in 2009. In fact, it is noticeable that the recent trend has been one of commutations of death sentences to life imprisonment, considering that the threshold of rarest of rare is at a very high pedestal. In such a scenario, it was surprising to note that the SC upheld a death sentence without properly analysing sentencing and the application of mandatory tests which the very court has time and again reiterated, the latest instance being in November 2018. The critics of capital punishment including the author himself can only hope that the court’s decision that has been passed in a hasty manner in this case gets ample consideration in form of a review.
[The author is a final year student at National Law University, Jodhpur.]
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