DEATH PENALTY AND SOFTENING OF SUPREME COURT OVER YEARS
Authored by: Bhanu
After independence, our country retained many laws that were enacted by the colonial British government such as the Code of Criminal Procedure, 1898 (CRPC, 1898), and the Indian Penal Code, 1860 (‘IPC’). The offences where there was an option for death penalty, Section 367(5) of the CRPC, 1898 required that the Courts had to record the reasons in cases where the death sentence was not awarded to the accused.
In 1955, Section 367(5) of the 1898 Code was repealed by the parliament and it significantly altered the position of the death sentence in the country. The death penalty was not the norm anymore. The CRPC, 1898 was replaced by Code of Criminal Procedure, 1973 (CRPC) and several changes were made, notably to Section 354(3):
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence.”
This was a significant modification from the situation following the 1955 amendment (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 Code (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence. These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states:
“If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”
Landmark judgments by the Supreme Court of India
1. Jagmohan Singh v. State of UP
This case was decided when the 1898 Code was in force. Under the 1898 Code, Section 367(5) provided that if an accused person is convicted of an offence punishable with death, and he is sentenced to a punishment other than death, the Court was required to state the reason why a sentence of death was not passed. Thus, we see that that there was wide discretion conferred on the Judges to choose between death sentence and the alternatives. It was contested that this discretion was not accompanied by clear guidelines for their exercise, and was therefore violative of Articles 14, 19, and 21.
- Right to life was not a part of Article 19 and a death sentence could not be called unreasonable or opposed to public policy since it was a punishment which had been part of the law even before the commencement and the legislature would be presumed to know of its existence. Since it was not removed, it could only be assumed that the legislature did not think of it as unreasonable.
- Article 14 can hardly be invoked in matters of judicial discretion since exercise of discretion in each case would be peculiar to the facts and circumstances. The discretion given to Courts is to impose the death penalty after balancing the aggravating and mitigating circumstances and cannot be called unguided.
- Article 21- The Code of Criminal Procedure lays down detailed procedure s to when death sentence can be imposed and the imposition of death sentence after all the requisites of a trial, following the procedure established by law and hence, cannot be called unconstitutional.
The Court laid down the following propositions inter alia:
- There cannot be an exhaustive enumeration of cases in which death penalty can be imposed on an accused and therefore it is necessary to empower judges with such wide discretionary powers.
- While exercising such discretionary powers, judges have to balance the aggravating circumstances with the mitigating circumstances before arriving at a decision regarding death sentence. The exercise of this discretionary power remains susceptible to review by superior Courts.
- In exercising its discretionary power to choose between life imprisonment and a death sentence, the Court is principally guided by the facts and circumstances of the crime under inquiry.
Thus, we see that during this period, emphasis was on the circumstances surrounding the crime, and on the idea of balancing aggravating and mitigating circumstances. This changed following the enactment of the new CrPC in 1973, as explained in the case of Bachan Singh v. State of Punjab.
2. Bachan Singh v. State of Punjab
The Appellant was sentenced to death for the murder of three people. In appeal, the constitutional validity of death sentence was challenged, at a time when the new CrPC was enacted which effectively reversed the previously existing law.
Section 354(3) of the Code of Criminal Procedure reads as follows:
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
- What is the process of arriving at a sentencing procedure under Section 354(3) of the CrPC?
The Court discussed the principles laid down in the Jagmohan case. However, it reformulated the proposition as regards the balancing of circumstances, and emphasized that not only the crime, but the criminal’s mitigating circumstances should also be considered. The “rarest of rare” doctrine was established, laying down that the question of an alternate punishment in the form of a life sentence ought to be in ostensibly foreclosed so as to leave the judges with no option but to impose death penalty on the accused.
- Mental state of the criminal
- Age of the criminal
- Whether his existence poses a continuous threat to the society
- Probability of his reformation
- Whether the criminal was under a genuine belief that his actions were morally justified
- Whether the act was performed under duress or dominance from another
- The accused displays mental deficiency
Justice PN Bhagwati in his dissenting judgement included two important points regarding death sentences:
- The only way arbitrariness can be removed would be if in every case of death penalty, there is mandatory review by the Supreme Court sitting as a whole. The sentence cannot be affirmed or imposed without a unanimous decision and the only exceptional cases in which death sentence may be affirmed or imposed should be legislatively limited.
- No exceptional cases or category of ‘rarest of the rare’ was given by the legislature. Allowing for death penalty as an alternate sentence for murder, without and classification would be a grossly disproportional punishment.
Balancing of aggravating and mitigating circumstances
In Jagmohan Singh, the focus was on the crime, which was reformulated in Bachan Singh to also include the criminal. However, in Machi Singh the Court revived the “balancing” process. The Court in Machi Singh attempted to demarcate the following five criteria that can guide a decision whether a given case is under the “rarest of rare” cases:
- Manner of Commission of crime
- Motive behind the crime committed
- The abhorrent or anti-social nature of the crime
- The magnitude of the crime committed
- The personality of the victim (whether the victim was an innocent child, a helpless woman, etc.)
In Chhannu Lal Verma vs the State of Chattisgarh while commuting a death sentence to life imprisonment, Justice Kurien Joseph stated the need to revisit the practice of awarding death sentences, the manner of application of the “rarest of rare” doctrine, and laid down further guidelines to be considered while examining a death sentence awarded:
- If a jail superintendent provides a certificate attesting to a convict’s good behaviour, it stands reasonable to suggest that the accused possesses the potential to reform himself, and therefore life imprisonment would suffice to meet the ends of justice.
- Without certified psychological/psychiatric evaluation, it would be improper to preclude the possibility or probability of reform, and the burden falls on the prosecution to establish the same.
- The imposition of the death penalty can be vacated if the accused is able to demonstrate being denied procedural fairness and due process during the trial
- Even if mitigating circumstances are not explicitly put forth by the accused, the Court can look for them independently.
Justice Lokur explained in a later case that the balancing theory means that the Court ought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. It hardly needs be stated, with respect, that these are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Nevertheless, the balance sheet theory held the field post Machhi Singh. This prompted comments from Justice Lokur that sentencing is now a judge centric process, instead of being based on principled reasoning. Therefore, he held, the use of the mantra of aggravating and mitigating circumstances needs areview.
Similarly, in Swamy Shradhhanand v. State of Karnataka, the SC laid down that the Court should not be eager to uphold the death sentence, and should in fact, use it as sparingly as possible, in consonance with the law laid down in Bachan Singh. The Court explained that presiding over a criminal justice system that allows culprits of the most dangerous and revolting kinds of murders to slip away should be extremely wary in dealing with death sentence. The Court candidly remarked that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the Judges constituting the Bench. In this case, the accused was convicted of a cold blooded murder which though heinous did not fall in the “rarest of rare” categories and was hence given life imprisonment, his death sentence commuted.
Review petition hearing
A bunch of writ petitions were heard, where execution of the death sentence awarded to the petitioners had been stayed. Two basic issues are raised by counsel appearing for the petitioners, (1) the hearing of cases in which death sentence has been awarded should be by a Bench of at least three if not five Supreme Court Judges and (2) the hearing of Review Petitions in death sentence cases should not be by circulation but should only be in open Court, and accordingly Order XL Rule 3 of the Supreme Court Rules, 1966 should be declared to be unconstitutional inasmuch as persons on death row are denied an oral hearing.
In his majority judgement, Justice Nariman explained that death sentence cases are a distinct category of cases altogether. Two relevant facts necessitate an oral hearing in all review petitions- the irreversibility of a death penalty and the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other. This being so, if the fundamental right to life is involved, any procedure to be just, fair, and reasonable should take into account the two factors mentioned above. Hence, a limited oral hearing even at the review stage is mandated by Art. 21 in all death sentence cases.
For the above reasons, the Court by majority held that every review petition against a death sentence shall be heard by 3 judges’ bench, in open Court, with a time limit of 30 minutes for the oral hearing.
It is noteworthy that Justice Chalameswar in his dissenting opinion wrote that neither Art. 21, nor the principles of natural justice require a mandatory oral hearing in every case of review; it all depends on the demands of justice in each case.
Power to grant Pardon
Article 72 of the Constitution empowers the President to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases. Article 161 grants a similar power to the Governor, as regards cases relating to a matter to which the executive power of the State extends. The power to grant pardon is to be exercised by the President and the Governor with the aid and advice of the Council of Ministers, with due application of mind by the constitutional head. The Court held that the power is to not be exercised arbitrarily and should adhere to standards “intelligible intelligent and integrated with the manifest purpose of the power.”The Court in Maru Ram v. Union of India laid down that a President’s order is vitiated by any of the following:
- wholly irrelevant factors being considered
- irrational application of mind
- its discriminatory in nature
- mala fide exercise of the constitutional power.
Following this, in Kehar Singh v. Union of India the SC laid down that it is open to the President to scrutinise the evidence on the record and come to a different conclusion from that recorded by the Court in regard to the guilt of, and sentence imposed on, the accused. While refusing to make clear guidelines for the exercise of the President’s power, the Court reaffirmed the limits of judicial review laid down in Maru Ram. It is however, open to the Court to send back to the Governor a mercy petition, where it is found that the Governor refused mercy without any application of his mind.It was further reiterated in Epuru Sudhakar v. Government of Andhra Pradeshthat while exercising powers under Article 72 and 161, the President and the Governor act on a wholly different plan, and their decisions does not upset the judicial record. Even in cases where pardon is granted, it only exempts the convicted from undergoing punishment, without dealing with his innocence or guilt.
The Nirbhaya case lasted for seven years, extended by a flurry of baseless petitions and wrongful exploitation of loopholes in the law. A brief discussion on the case would illustrate the need for amendments in our legal system, for administration of timely justice.
Delay in filing review petitions and the condonation thereof
The SC upheld the death sentence imposed on the four convicts of the Nirbhaya case on 5May 2017. Review petitions are filed under Article 137 of the Constitution, but they too have a limitation period prescribed. Order XL Rule 2 of the Supreme Court Rules 1966 lays down that a review petition has to be filed within 30 days from the date of judgement or order sought to be reviewed. However, the SC can condone the delay in the interest of justice, and the convicts in this case have wrongly exploited the same.
All four filed reviews on different dates with long delays. Mukesh filed his review on 8 November 2017, after 6 months as opposed to the 30 days limitation period. Vinay Sharma and Pawan Gupta filed their reviews even later, on 15 December 2017. Even at this point, Pawan Gupta did not file a review. On 9 July, all the three review petitions were dismissed. The victim’s parents moved the Court for death warrants in February 2019, and ten months later in December 2019, Akshay filed a review petition in the SC. Such inordinate long delays in filing the review petitions was condoned by the SC at every stage, prolonging the case
Law established by precedents was misused as a delaying tactic
The SC in Harbans Singh v. State of UP held that if more than one convict is awarded death sentence in the same case, no convict can be hanged to death unless all of them have extinguished all their legal remedies. In Harbans Singh, three persons were sentenced to death by a common judgement, being convicted of murder. One of the convicts who did not prefer any review was hanged to death, while the second convict was successful in having his death sentence commuted to life imprisonment by the SC, in a SLP filed by him. The third convict filed a mercy petition which was rejected by the President, later challenged before the SC. While disposing of the said writ petition, the SC stated that where the convicts are sentenced to death for the same crime, each being equally guilty of the same crime, it would be a travesty of justice if they are punished in different manners, as in this case where one person had to pay with their life for the crime committed, while another was successful in obtaining a life imprisonment.
Further, the SC in Shatrughan Chauhan & Anr. v. Union of India laid down that when the President rejects a mercy plea, the prisoner ought to be given 14 days’ time to file an appeal and/or come to terms with their reality, before they can be hanged for their wrong.
These precedents were misused by the convicts who waited until the last moment to file their appeals and review petitions, in order to delay their execution.
As a result, four death warrants were issued for the execution of the Nirbhaya convicts, the first three being stayed due to last minute petitions being filed in the Court, on unfounded contentions. The convicts were finally hanged on 20thMarch 2020, after an urgent hearing in the early hours of 20th March where a 3 judge Bench of the SC refused to entertain the last appeal against the President’s rejection of the mercy plea.
The inordinate delay caused by multiple duplicitous petitions from the convicts made us woefully aware of the lacunae in the present system, and the need for streamlining our laws.
SUGGESTIONS AND CONCLUSION
- Centre has asked the apex Court to introduce a 7-day deadline for death row convicts to file mercy petitions and also introduce a time limit for filing of review and curative petitions in such cases.
- Court amend its 2014 verdict in the Shatrughan Chauhan case where it had ordered jail authorities to ensure the 14-day gap between the rejection of their mercy pleas and their hanging.
- direction to all state government and jail officials to issue death warrants within seven days of a convict’s mercy plea being rejected, and to execute the death warrant within seven days thereafter irrespective of the status of the review/curative/mercy petition of his co-convicts.
This case has also reignited the debate regarding the abolition of death penalty. The arguments are based on dignity of human life, the effectiveness and role of retribution in our democratic system, as well as inconsistent judicial pronouncements leading to arbitrary sentencing. The 262nd Report of the Law Commission of India, submitted in 2015 spoke in favour of abolition of death penalty for the same reasons.
Justice P.N.Bhagwati framed the question poignantly in Bachan Singh, “The question may well be asked by the accused: Am I to live or die depending upon the way in which the benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21?” There is no dictionary meaning for “rarest of the rare” and subjective terms like “abhorrent nature” or “shocking the conscience” offer no help.
Apart from the absence of definite guidelines to rationalise the sentencing, the increasing presence of media in the criminal justice system further complicates the matter. Today, the public is made aware of each and every heinous crime that is committed and mobilising a collective voice to cry for justice has become easier. This would understandably give the impression that the collective conscience of the society has been shaken, while the case does necessarily fall in the category of rarest of the rare. Similarly, gruesome crimes occurring in urban areas are inevitable more widely reported than those in villages, which is also a problem. In the absence of a straight-jacket formula, the practice of imposing death sentences remains susceptible to arbitrariness and discrimination.
Thus we see that the present time is ripe for a
constructive and exhaustive debate on the topic of death penalty in India, reasons for its abolition or retention as decided by the
government, and, should we choose to retain it, how the system is to be remodelled,
in order to ensure that it serves the purpose behind its retention.
This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.
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(2008) 13 SCC 767
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Maru Ram v. Union of India, AIR 1980 SC 2147, paras 60,65,67.
Dhananjoy Chatterjee v. State of West Bengal, (2004) 9 SCC 751.
(2006) 8 SCC 161
(2014) 3 SCC 1
(2014) 3 SCC 1