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Indian Sentencing Policy In Cases Related To Death Penalty

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages other from doing wrong. The capital punishment also rests on the same proposition as other punishments .

The capital punishment debate is the most generally relevant debate, keeping in mind the situation that has been brought about by today. Capital punishment is an integral part of the Indian criminal justice system. Increasing strength of the human rights movement in India, the existence of capital punishment is questioned as immoral. However this is an odd argument as keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong.

Historical Perspective Of The Debate Around Death Penalty

Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. History of human civilization reveals that during no period of time capital punishment has been discarded as a mode of punishment.

Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century BCE), though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic.

This finds support in the observation made by Sir Henry Marine who stated that "Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the procedure of questions"[1] .

An early attempt at abolition of the death penalty took place in pre-independent India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC offences in 1931. However, this was defeated. Around the same time, in March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session, which included a demand for the abolition of the death penalty.[2]

India's Constituent Assembly Debates between 1947 and 1949 also raised questions around the judge-centric nature of the death penalty, arbitrariness in imposition, its discriminatory impact on people living in poverty, and the possibility of error.[3] For example, on the possibility of error, Pandit Thakur Das Bhargava said:

It is quite true that a person does not get justice in the original court. I am not complaining of district courts. In very many cases of riots in which more than five persons are involved, a number of innocent persons are implicated. I can speak with authority on this point. I am a legal practitioner and have been having criminal practice for a large number of years.[4]

An issue of much debate had to do with the right to appeal a death sentence. In this context, Prof. Shibban Lal Saksena said:
I do feel that the people who are condemned to death should have the inherent right of appeal to the Supreme Court and must have the satisfaction that their cases have been heard by the highest tribunal in the country. I have seen people who are very poor not being able to appeal as they cannot afford to pay the counsel.

I see that article 112 says that the Supreme Court may grant special leave to appeal from any judgment, but it will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves of the benefits of this section.[5]

The Government's policy on capital punishment in British India prior to Independence was clearly stated twice in 1946 by the then Home Minister, Sir John Thorne, in the debates of the Legislative Assembly. "The Government does not think it wise to abolish capital punishment for any type of crime for which that punishment is now provided"[6]

At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 ('Cr.P.C. 1898'), and the Indian Penal Code, 1860 ('IPC'). The IPC prescribed six punishments that could be imposed under the law, including death.

For offences where the death penalty was an option, Section 367(5) of the CrPC 1898 required courts to record reasons where the court decided not to impose a sentence of death:

If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.

In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 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 law (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.[7]

Law Commission Of India Recommendations

35th Law Commission Report, 1967
The Law Commission released its 35th Report on "Capital Punishment" in 1967, recommending that the death penalty be retained. After considering the arguments of the abolitionists and retentionists, the state of the death penalty in various countries and objectives of capital punishment, the Commission recommended that the death penalty be retained in India, saying:

Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.[8]

The Commission added that the deterrent object of capital punishment was its "most important object", saying it constituted "its strongest justification".[9] The Commission also commented on the discretion courts had in terms of imposing the death penalty or life imprisonment, finding that:
"the vesting of such discretion is necessary and the provisions conferring such discretion are working satisfactorily".[10] It also said that "in the present state of the country," India could not risk an experiment with abolition that would put the lives of citizens in danger.[11]

The Commission also observed "that persons who have no sufficient financial means or who for some other reason cannot fight the cause to the last, suffer, and that the law proves to be unjust to them, is an argument which concerns the subject of legal aid rather than the substantive penal law."[12]

Considering if a court should give reasons when it made its decision on whether or not to impose the death penalty, the Commission recommended that the law should be changed to "require the court to state its reasons whenever it avoids either of the two sentences in a capital case".[13] The 41st Report of the Commission on revising and reenacting the Code of Criminal Procedure 1898 reiterated this recommendation.[14]

Similarly, while the 35th Report found the breadth of judicial discretion in capital sentencing acceptable, later Supreme Court cases have noted why this is problematic. The 35th Report also recommended retaining of section 303 of the Indian Penal Code, which provides for mandatory death penalty. However, the Supreme Court held this to be unconstitutional in 1987 in Mithu v. State of Punjab.[15]

187th Report of the Law Commission
In 2003, the Commission released its 187th Report on the "Mode of Execution of Death and Incidental Matters".[16]

The Commission had taken up this matter suo motu because of the "technological advances in the field of science, technology, medicine, anaesthetics" since its 35th Report.

This Report did not address the question of whether the death penalty was desirable. Instead, it restricted itself to three issues:
  1. the method of execution of death sentence,
  2. the process of eliminating differences in judicial opinions among Judges of the apex Court in passing sentence of death penalty, and
  3. the need to provide a right of appeal to the accused to the Supreme Court in death sentence matters.
After soliciting public opinion and studying the practice on these issues in India and in other countries, the Law Commission recommended that Section 354(5) of the CrPC be amended to allow for the lethal injection as a method of execution, in addition to hanging.

The Commission also recommended that there should be a statutory right of appeal to the Supreme Court where a High Court confirms a death sentence, or enhances the sentence to capital punishment. Furthermore, it suggested that all death sentence cases be heard by at least a 5-judge Bench of the Supreme Court.

262nd Law Commission Report
The Law Commission of India chaired by Justice A.P. Shah submitted its 262nd report on 31st August 2015 on the issue of death penalty in India. The issue was referred to the Law Commission by the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. Maharashtra,[17] and Shankar Kisanrao Khade v. Maharashtra,[18].

The Law Commission has previously in its 35th report ("Capital Punishment", 1967) recommended the retention of the death penalty in India. The Supreme Court has also, in Bachan Singh v. Union of India,[19] , upheld the constitutionality of the death penalty, but confined its application to the 'rarest of rare cases', to reduce the arbitrariness of the penalty.

However, the social, economic and cultural contexts of the country have changed drastically since the 35th report and arbitrariness has also remained a major concern in the adjudication of death penalty cases in the 35 years since the foremost precedent on the issue was laid down. Accordingly realizing that death penalty is an issue of a very sensitive nature, the Commission decided to undertake an extensive study on the issue.

The Commission concluded after studying the issue extensively that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. In fact it fails to achieve any constitutionally valid penological goals. The Law Commission also concluded that in focusing on death penalty as ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of.

It was also concluded that extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being arbitrary and freakishly imposed. And there exists no principled method to remove such arbitrariness from capital sentencing.

Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication.

It was also concluded that the exercise of mercy powers under Articles 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.

Further the death row phenomenon is compounded by degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions. The death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India which breaches the Article 21 barrier against degrading and excessive punishment.

Thus the Commission has recommended that the jurisprudence on the issue has proceeded from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases; this shows the direction in which we have to head.

Thus the time has come for India to move towards abolition of the death penalty. The commission has also recommended that although there is no valid penological justification for treating terrorism differently from other crimes, however, given the concerns raised by the law makers that the abolition of death penalty for terrorism related offences and waging war, will affect national security, there is no reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.

Finally the Commission recommended that it is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.

The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme is established. The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.[20]

Constitutionality Of Death Sentence In India

The first challenge to the capital punishment in India came during the 1973 case of Jagmohan Singh v. State of U.P, October 1972. The judgment came before the CrPC was re-enacted in 1973, whereby the death sentence constituted an exceptional sentence.[21] It was argued that the death penalty violates to the right to life and equality and guaranteed by the Indian Constitution.

Moreover, the uncontrolled and unguided arbitrary discretion in the judges to impose capital punishment violates Article 14 of the Indian Constitution and the petitioners contended that the procedure for consideration of circumstances in order to pronounce finding and reasoning to make judicial decision between capital punishment and life imprisonment is not available under CrPC, 1898, therefore it violated Article 21 of the Indian Constitution.

However, the Supreme Court of India refused to accept the argument and held that the death sentence is pronounced after detailed recording and evaluation of the aggravating and mitigating circumstances, thus such procedure justifies the imposition of capital punishment and does not violate Article 21 of the Indian Constitution. Moreover, the criticism of judge-centric or wide discretion on the judges on the fixation of the punishment is subject to the scrutiny of the superior judges and premised on the well recognized judicial principles.

The judgment also discussed the US Supreme Court Decision in Furman v. Georgia, October 1971 where the US Supreme Court struck down the death sentence scheme as it violated the Eighth Amendment of the US Constitution as being cruel and unusual punishment. But, the Supreme Court of India refused to accept the reasoning and stated that there is no rational basis for concluding the death sentence as unconstitutional because the Indian Constitution does not have an equivalent to the Eighth Amendment.

This case was decided before the CrPC was re-enacted in 1973, making the death penalty an exceptional sentence. In Jagmohan, the Supreme Court found that the death penalty was a permissible punishment, and did not violate the Constitution.

The Court held that:
The impossibility of laying down standards is at the very core of the criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.

That discretion in the matter sentences as already pointed out, is liable to be corrected by superior courts´┐Ż The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.[22]

The Court also held that:
If the law has given to the judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and circumstances of one case can hardly be the same as the facts and circumstances of another.[23]

Since the incorporation of Code of Criminal Procedure, 1898, while imposing the death sentence, the courts were obliged to provide 'special reasons' for not imposing the death sentence.

The true departure from death sentence as a norm to an exception came after the introduction of Code of Criminal Procedure re-enacted in 1973. The CrPC 1973 introduced Section 354(3), the section mandated that judge must provide 'special reasons' for inflicting or imposing the death sentence.

Also, the CrPC 1973 introduced the Section 235(2), which allowed the post-conviction hearing on sentencing which drastically changed the jurisprudence allowing a careful evaluation and analysis of circumstances revolving around the jurisprudence of death sentence.

Rajendra Prasad v. State of Uttar Pradesh [24]
Post the re-enactment of CrPC 1973, there was ambiguity in the jurisprudential understanding of 'special reasons' for imposing the death sentence. The Supreme Court in Rajendra Prasad v. State of Uttar Pradesh, February 1979 dealt with the legal policy on sentencing discretion and also comprehensively discussed the meaning of 'special reasons' for inflicting death sentence on exceptional grounds.

The Court departed from retributive theory and emphasized on the deterrence and reformative theory as the social goals. Furthermore, the Court held that the 'special reasons' required to impose the capital punishment must not relate to the crime, but focus must be on the criminal.

Bachan Singh v. State of Punjab[25]
The constitutional validity of death penalty was again challenged in the Bachan Singh v. State of Punjab, in May 1980, and it was premised on multiple new developments. Firstly, the re-enactment of CrPC 1973 had made the death penalty as an exception with regards to the rule of imposing life imprisonment for offences consist of choice between life imprisonment and death sentence.

Secondly, the dictum of Rajendra Prasad v. State of Uttar Pradesh, February 1979, had interpreted the parameter on which 'death sentence' must be related to circumstance of the criminal and not the crime itself.

Thirdly, it reviewed the death sentence in the light of Maneka Gandhi v. Union of India, January 1978 since every punitive action must satisfy the test of reasonableness after satisfying the golden triangle test of Articles 14, 19 and 21 of the Indian Constitution.

The primary challenges to the death penalty in Bachan Singh v. State of Punjab, May 1980 was that the death punishment is unnecessary, cruel, inhumane and degrading treatment and the punishment of death sentence does not serve the purpose of deterrence.

Furthermore, the constitutional validity of Section 302 of IPC and Section 366(2) of CrPC was challenged in this case on the ground that the imposition of death penalty is arbitrary and whimsical. However, the Supreme Court by a majority of 4:1 did not accept this contention and affirmed the constitutional validity of death sentence but propounded the doctrine of 'rarest of rare' as that the death sentence can only imposed 'in the rarest of rare cases when the alternative option is unquestionably foreclosed."

Moreover, the Supreme Court ascertained that the "special reasons" in the context of inflicting death sentence must pay due regard to both the crime and criminal and the relative weight has to be given both aggravating and mitigating circumstance prior to the stating of special reasons for inflicting the death sentence. The Supreme Court recognized that the mitigating factors includes the mental condition, the age of the accused, the possibility of reforming or that the person committed the crime under the superior orders.

The Supreme Court recognized and emphasized on the individual yet principled sentencing of the death sentence, the court refused to create categories, instead provided discretion to the judges to apply the principled reasoning of inflicting death sentence in each individual case on the basis of aggravating and mitigating circumstances.

In the dissenting opinion written by Justice P. N. Bhagawati in August 1982, two years after the majority's decision, he held the death penalty to be unconstitutional. He opined that the capital sentencing system, which required 'special reasons' without any guidance on its meaning, essentially left decision-making to the subjective assessment of individual judges, making it arbitrary.

Mithu v. State of Punjab[26]
In this case, the court discussed Section 303 of the IPC which provided for a mandatory death sentence for offenders serving a life sentence. This section was based on the logic that any criminal who has been convicted for life and still can kill someone is beyond reformation and so, the only suitable punishment left would be death.

It was discussed that the original idea behind drafting of this section was to discourage assaults by life convicts on the prison staff, but the language chosen by the legislature had widely exceeded its intention. It was held that Section 303 violated right to equality and right to life and personal liberty as conferred under Articles 14 and 21 of the Constitution.

Channulal Verma v. State of Chhattisgarh[27]
In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment. While dissenting on the question of propriety of the death penalty, the remaining two judges on the bench emphasized on the duty of courts to be constitutionally correct, even if its views are counter-majoritarian.

Public opinion is generally formed by emotionally charged narratives which need not necessarily be legally correct, properly informed. They may even be against the values of rule of law and constitutionalism that courts are bound by. The court reiterated the view in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra that in death penalty sentencing, public opinion is neither an objective circumstance relating to crime nor to the criminal. The death sentence was commuted to life imprisonment after taking into consideration the possibility of reform and rehabilitation of the appellant that was evidenced by his good conduct in prison.

Sentencing Procedure And Framework: Landmark Cases

Section 235(2) of the CrPC provides for a bifurcated trial, where the conviction and sentencing are meant to be separate proceedings. This has been affirmed in the following judgments of the Supreme Court.

Procedure
Santa Singh v. State of Punjab[28]
The Supreme Court held that sentencing is an important stage in the process of administration of criminal justice and required an interdisciplinary approach. The words "hear the accused" in Section 235(2) of the Code of Criminal Procedure, 1973 were interpreted to mean that the accused had to be given an opportunity to place before the Court various circumstances relating to the sentence, and was not limited to just an oral hearing.

It was further stated that non-compliance of Section 235(2) is not an irregularity curable under Section 465 of the Code of Criminal Procedure, 1973 as it amounts to omitting an important stage of the trial. In his concurring opinion, Justice Fazl Ali stated that an opportunity to give evidence in respect of sentence may necessitate an adjournment; and to avoid delay, the adjournment ordinarily should be for not more than 14 days. The matter was remanded to the Trial Court for giving an opportunity to the accused to make a representation regarding the sentence.

Dagdu v. State of Maharashtra[29]
The Supreme Court held that the decision in Santa Singh v. State of Punjab, August 1976 cannot be read to say that failure on the part of the court to 'hear' an accused on the question of sentence must necessarily entail a remand to the trial court.

After convicting an accused, courts must unquestionably hear him on the question of sentence but if they omit to do so, it would be open to the higher court to remedy the breach by giving a real and effective hearing to the accused on the question of sentence. The accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence.

The Court may adjourn the matter in order to give to the accused sufficient time to make submissions on sentence. Consequently, the Supreme Court granted liberty to the accused persons to produce materials on the question of sentence.

Mukesh v. State of NCT of Delhi[30]
It was argued by the accused persons that the Trial Judge had not considered the aggravating and mitigating circumstances in respect of each individual accused. The Court went through the law laid down by the Supreme Court in Santa Singh v. State of Punjab, August 1976 and Dagdu v. State of Maharashtra, April 1977, and held that there are two modes to cure sentencing defects:
  1. To remand the matter;
  2. To direct the accused persons to produce necessary data and advance the contention on the question of sentence.
Following the second mode, the Court gave an opportunity to the accused persons to file affidavits along with documents stating the mitigating circumstances. The counsels for the accused were allowed daily visits to the prison in order to communicate with the accused persons and file the requisite affidavits and materials. The prosecution was also granted liberty to file affidavits in response to the ones filed by the accused. The final judgment in this case was delivered on 5 May 2017.

Sentencing Framework
In Bachan Singh v. State of Punjab, May 1980, a five-judge bench of the Supreme Court of India while upholding the constitutionality of the death penalty in India, also laid down an elaborate sentencing framework, requiring sentencing judges to impose the punishment only in the 'rarest of rare' cases. The 'rarest of rare' doctrine developed in Bachan Singh requires judges to balance aggravating and mitigating circumstances while determining whether a death sentence is the appropriate punishment. Other landmark judgments which have elaborated on the 'rarest of rare' framework are as follows:

Machhi Singh v. State of Punjab[31]
The Supreme Court attempted to explore the doctrine of rarest of rare in the Machhi Singh v. State of Punjab, July 1983, three years after the Bachan Singh v. State of Punjab, May 1980 judgment. The court reinstated and reemphasized the principles of sentencing policy propounded in the Bachan Singh case. Also, the Court listed the two question that needs to be answered prior to the imposition of death sentence on individual cases.

Firstly, is the offence committed so exceptional that there is no scope for awarding any other sentence? Secondly, even when weightage is accorded to the mitigating circumstances does the circumstances still warrants death penalty? It was held that the judges must prepare a balance sheet of aggravating and mitigating circumstance of the crime and criminal and analyze the factors prior to making up choice between death sentence and life imprisonment.

However, the Supreme Court held that the death penalty may imposed on the ground where the collective conscience of the society is shocked that expect the judicial authorities impose the death sentence. Thereafter, it listed five categories of the cases, where the death sentence is appropriate.
  1. Manner in which the crime was committed: Murder committed in an extremely brutal, grotesque, diabolical, revolting or drastic manner so as to arouse intense and extreme indignation of the community;
  2. Motive behind the criminal act: Murder committed for a motive which evinces total depravity and meanness;
  3. The Nature of the crime: Murder that arouse social wrath (like homicide of a person belonging to SC/ST or a minority community, dowry-death etc.);
  4. The degree of the crime: Multiple murders of a family or a large number of persons of a particular caste, community, or locality; and
  5. The Status of the victim:
    Murder of an innocent child or a helpless woman or a person rendered helpless by old age or infirmity; murder of a person by the murderer who is in a position of domination or trust or murder of a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

It focused more on the 'crime factors' or adopted 'crime centric approach' on the sentencing policy of the death sentence. Furthermore, it moved towards the practice of balancing aggravating and mitigating circumstances to impose death sentence, where Bachan Singh judgment mandated that death sentence be imposed where life imprisonment is unquestionably foreclosed.

Thus, this precedent and subsequent line of cases had systematically permitted the justification of death sentence on the manner, nature and gravity of the crime, without taking into the account of circumstances of the criminal, in order to exercise judicial discretion on the death sentence.

Ravji v. State of Rajasthan[32]
The fundamental contribution of Bachan Singh was that the focus of sentencing policy in regards to the death penalty shifted from crime to crime and criminal both. However, this judicial contribution was drastically altered in the Ravji v. State of Rajasthan, December 1995.

The two bench of Supreme Court held that the nature and gravity of the crime, not the criminal should be considered as an appropriate method, for opting between choice of life imprisonment and death penalty. Subsequently, the precedent in Ravji was relied on as authoritative precedent. These judgments confirmed the death sentence without considering any mitigating circumstances related to the criminal.

This position was directly contradictory to Constitutional bench judgment of Bachan Singh v. State of Punjab, May 1980. Finally, the Ravji v. State of Rajasthan, December 1995 decision delivered by the Supreme Court of India was rendered as per incuriam by another bench of Supreme Court in Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009.

Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra[33]
The Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009 judgment holds an important position in the attempt of Supreme Court to principally regulate the judicial discretion and bring consistency in the sentencing discretion of the judiciary in regards to death penalty.

The Supreme Court in Bariyar held that the exclusive focus on the crime provided in the Ravji v. State of Rajasthan, December 1995 precedent is per incuriam, as it breaches the principles revolving around doctrine of rarest of rare propounded in Bachan Singh v. State of Punjab, May 1980.

The Bariyar judgment again reemphasized that the aggravating and mitigating circumstances related to the sentencing discretion must not only be limited to crime alone, but both the factor crime and criminal should be taken into account. It has interpreted the Bachan Singh dictum in a radical manner, specifically on the sentencing aspect of death penalty. The Court expressed concern that there is lack of consistency and coherence in the aspect of sentencing discretion in regards to death penalty.

The first and foremost contribution of Bariyar judgment is that it undoubtedly rejected the strict channeling of discretion or classification of particular types of offences deserves death sentence. The Supreme Court emphasized that the weight accorded to the aggravating and mitigating circumstances must be decided on the case to case basis. Furthermore, it also deconstructed the notion of 'shock to the collective conscience' as standard to impose the death sentences.

The Court categorically stated the relevance and desirability of 'public opinion', is no more important in the jurisprudence and adjudication of death sentences. It also disregarded the social necessity as criteria for the infliction of death sentence. The Court asserted that the judiciary is a counter-majoritarian institution and individual rights should be given more importance.

Sangeet v. State of Haryana [34]
The Supreme Court in Sangeet v. State of Haryana, November 2012, seriously expressed reservation regarding inconsistent and incoherent application of sentencing policy with respect to analyzing the aggravating and mitigating circumstances. The court critiqued the process of drawing a balance sheet of aggravating and mitigating circumstances and stated that they cannot be compared with each other as each of the factors are two distinct and different constituents of the incident.

Moreover, the court itself admitted that the doctrine of rarest of rare is not followed properly and departed from the 'principled sentencing' to a judge-centric sentencing policy of the death sentence. Furthermore, the Supreme Court also critiqued the categorization of the crime (manner of commission of murder, motive for commission of murder, antisocial or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder) propounded in Machhi Singh v. State of Punjab, July 1983.

The Court noted that Machi Singh standardization of the crime considerably enlarged the scope of imposing death sentence, which was severely restricted in Bachan Singh v. State of Punjab, May 1980 and also affirmed that the standardization shall not be taken as absolute or inflexible rule in the sentencing policy of the death sentence.

Shanker Kisanrao Khade v. State of Maharashtra [35]
The Supreme Court in Shanker Kisanrao Khade v. State of Maharashtra, April 2013, acknowledged that the difficulty in the application of 'rarest of rare' since there is lack of empirical data for making two fold comparison between murder (not attracting death penalty) and murder (attracting penalty).

The Court also envisaged a new triple test, while awarding the death sentence and it required 'crime test'. 'criminal test' and the 'rarest of rare test' and this test was not equivalent to 'balance test'.

The Court stated that the death sentence can only be inflicted, once they satisfy the 'crime test 100%', 'criminal test 0%' (there must no mitigating circumstances favouring the accused) such as possibility of reform, young age of the accused, lack of intention to commit the crime, no antecedents of criminal record.

Once the aggravating circumstances are the fullest extent and no mitigating circumstances, the court needs to be satisfied with the rarest of rare case. The rarest of rare must be depended on the 'society centric' instead of 'judge centric' as to whether society approve death sentence in the awarding of the death penalty.

Rajendra Prahladrao Wasnik v. State of Maharashtra [36]
In this case, the accused was convicted of the rape and murder of a three-year-old girl. In review, a three-judge bench commuted his sentence to life imprisonment. Invoking Bachan Singh, the Court observed that it was required to consider the probability of reform and rehabilitation and not its possibility or its impossibility´┐Ż 'it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated'. The Court also held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.

Conclusion
The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole of life subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years.[37]

Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of "an eye for an eye, tooth for a tooth" has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.

In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime.

At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases. The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons.

Hence it is essential that a witness protection scheme also be established. The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.

In the last decade, the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing in death penalty cases. The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied.

In the Court's own words "extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle".

The Court has also acknowledged erroneous imposition of the death sentence in contravention of Bachan Singh guidelines. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being "arbitrarily and freakishly imposed".

There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardization or categorization of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.

Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system.

Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication.

The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.

Clemency powers usually come into play after a judicial conviction and sentencing of an offender. In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence.

Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence which was not placed before the courts. Clemency powers, while exercisable for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice.

This casts a heavy responsibility on those wielding this power and necessitates a full application of mind, scrutiny of judicial records, and wide ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution. Further, the Supreme Court in Shatrughan Chauhan has recorded various relevant considerations which are gone into by the Home Ministry while deciding mercy petitions.

The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.

Safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment. The Courts' attempts to constitutionally discipline the execution of the death sentence has not always borne fruit.

Death row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency. During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution. The Supreme Court has acknowledged that an amalgam of such unique circumstances produces physical and psychological conditions of near-torture for the death row convict.

Further, the death row phenomenon is compounded by the degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions.

The death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India. Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment.

In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations. That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty.

The international trend towards successful and sustained abolition also confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.

End-Notes:
  1. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
  2. Special Correspondent, It's time death penalty is abolished: Aiyar, The Hindu, 7 August 2015, available at http://www.thehindu.com/news/national/its-time-death- penalty-is-abolished-aiyar/article7509444.ece
  3. See Constituent Assembly Debates on 3 June, 1949, Part II available at https://eparlib.nic.in/bitstream/123456789/762996/1/cad_04-11-1948.pdf
  4. Constituent Assembly Debates on 3 June, 1949 Part II, available at https://eparlib.nic.in/bitstream/123456789/762996/1/cad_04-11-1948.pdf
  5. Constituent Assembly Debates on 3 June, 1949 Part II, available at: https://eparlib.nic.in/bitstream/123456789/762996/1/cad_04-11-1948.pdf
  6. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 104-105
  7. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
  8. Law Commission of India, 35th Report, 1967, at para 293, available at http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
  9. ibid
  10. ibid
  11. ibid
  12. Law Commission of India, 35th Report, 1967, at para 265, available at http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf.
  13. Law Commission of India, 35th Report, 1967, at para 8, (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf
  14. Law Commission of India, 41st Report, 1969, at para 26.9, available at http://lawcommissionofindia.nic.in/1-50/Report41.pdf
  15. (1983) 2 SCC 277
  16. Law Commission of India, 187th Report, 2003, at page 7, available at http://lawcommissionofindia.nic.in/reports/187th%20report.pdf
  17. (2009) 6 SCC 498
  18. (2013) 5 SCC 546
  19. (1982) 3 SCC 24
  20. https://www.scconline.com/blog/post/2015/09/01/262-law-commission-report-on-death-penalty/
  21. Jagmohan Singh v. State of U. P., (1973) 1 SCC 20
  22. Jagmohan Singh v. State of U. P., (1973) 1 SCC 20
  23. ibid
  24. (1979) 3 SCC 646
  25. AIR 1980 SC 898
  26. AIR 1983 SC 473
  27. 2018 SCC OnLine SC 2570
  28. AIR1976 SC 2386
  29. AIR 1977 SC 1218
  30. (2017) 6 SCC 1
  31. AIR1983 SC 957
  32. AIR1996 SC 787
  33. 2009 6 SCC 498
  34. AIR 2012 SC 447
  35. (2013) 5 SCC 546
  36. 2018 SCC OnLine SC 2799
  37. Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC. 600; Maru Ram v. Union of India, (1981) 1 SCC 107.

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