ON TUESDAY last week, the Supreme Court recalled its own 2009 order sentencing six convicts to death, and acquitted them because of glitches in the prosecution case, which involved the murder of five persons. It brought the spotlight on the varying ways in which courts have awarded and commuted the death sentence over the years.
India has the death penalty in 46 provisions under various laws. It is marked by the possibility of judicial error. As British legal philosopher H L A Hart said, “It would be a terrible thing if a man has been hanged for a crime which he has not committed; in such a case, law itself would be a murderer.”
Indian Constituent Assembly member Shibban Lal Saksena, who himself had been on death row for 26 months, argued in 1949 that of 37 people hanged during that period, 7 were innocent. B R Ambedkar argued for abolition of the death penalty but the Constituent Assembly left the issue to the Supreme Court and Parliament. Eventually, Parliament and the judiciary could not abolish the death penalty; the 35th report of the Law Commission (1967) recommended retention of the provision.
The new Code of Criminal Procedure (1973) required “special reasons” to be given if death was preferred over a life sentence. Under the old CrPC (1898), reasons were to be given if the death penalty was not imposed. This requirement was removed in 1955. The 187th report of the Law Commission (2003) recommended use of a lethal injection in addition of hanging.
The court itself observed in Santosh Kumar Bariyar (2009) that the death penalty is imposed “arbitrarily or freakishly” and added: “There is no uniformity of precedents”. Again in Sangeet (2013), the court acknowledged that “principled sentencing” has become “judge-centric”. In Swami Shraddhanand (2008), the court said award of the death sentence depends on the “personal predilection of judges”. In Mohd Farooq (2010), it held that “the precedent of death penalty… is itself crumbling under the weight of disparate interpretations.”
Rulings on constitutionality
In Jagmohan (1972), the Supreme Court upheld the constitutionality of the death penalty, stating that Article 14 is not violated by the wide judicial discretion given to judges. But in Ediga Anamma (1974), the court said the question of life and death cannot be left to “ad hoc mood or individual predilection”. In Rajendra Prasad (1979), the court rejected retribution as the purpose of punishment and said these “special reasons” should relate to the criminal, not the crime. In Bachan Singh (1980), the matter was referred to a Constitution Bench that upheld the constitutionality by a 4-1 majority. It said special reasons should relate to exceptional circumstances of a case in terms of both “crime” and “criminal”. The court did not agree that wide discretion given to judges is arbitrary, but did say that death should be given only in “rarest of rare” cases when alternative option is unquestionably foreclosed. Justice P Bhagwati, in a minority opinion, observed that death penalty being arbitrary and discriminatory is unconstitutional.
In Deena Dayal (1983), the court upheld death by hanging as constitutional as it did not involve humiliation or torture. But in Parmanand Katara (1995), the court held hanging beyond the point of death by half an hour, as per the Punjab Jail Manual, to be unconstitutional.
Rarest of rare
In a number of cases such as Lok Pal Singh (1985) and Darshan Singh (1988), the death penalty was awarded without any reference to rarest of rare. In Mukund (1997) and Farooq (2002) it was referred but not applied.
In Machi Singh (1983), a three-judge Bench listed five parameters to decide whether a case falls within “rarest of rare” such as the manner of commission of crime (brutality, motive, antisocial or abhorrent nature), magnitude of crime and personality of victim (child, woman or popular leader) etc. These categories put much emphasis on the “crime” and ignored the “criminal” and the “mitigating factors” which had been equally emphasised in Bachan Singh. Thus, in Devender Pal Singh (2002), the court said the circumstances of the crime were such that death penalty had to be imposed.
The court also brought in the controversial concept of “collective conscience” of society being so shocked that it would expect judges to award the death penalty. This was subsequently used to award death in a number of cases including those of Dhananjyay Chatterjee, Afzal Guru and Yakub Memon, although the Bachan Singh ruling had clearly denied judges the role of spokespersons for public opinion.
In Santosh Singh Bariyar, the court questioned the correctness of using the public’s cry for justice in determining “rarest of rare” as it is not an objective circumstance. It said a “conscience of society” test undermines the judicial discretion underlined in the Jagmohan case; in Mohinder Singh (2013), the court reiterated that this is irrelevant for the “rarest of rare” doctrine.
In Ravi Singh alias Ram Chandra (1996), the court said the nature of gravity of the crime, not the criminal and punishment, must meet the society’s cry for justice. In Santosh Singh Bariyar, the Supreme Court said Ravi Singh and six other cases involving Ravi Singh were per incuriam i.e. wrong judgments as they were contrary to what was laid down in Bachan Singh.
In Shankar Kishanrao Khade (2013), the court questioned the death sentence to Dhananjay who was executed in 2004 because it took into account just the crime and ignored mitigating factors about the criminal. But in Gurwail Singh (2013) and Mofil Khan (2015), the court said the real test is whether such crimes shock the conscience of the society.
Dhananjay was given death penalty at age 27 but Ramesh Bhai Rathod in 2011 got life imprisonment at 28 as the court thought reform was possible at his age. In Purushottam Dashrath (2015), the court again imposed the death penalty on offenders aged 26 and 20 and did not refer to Ramesh Bhai.
Commuted or confirmed
Modern jurisprudence acknowledges that prolonged delay in executing a death sentence can make the eventual punishment inhuman and debasing, because of uncertainty and alternating hope and despair. The court has, however, been inconsistent about the duration when execution is considered delayed.
A delay of one year in Mohinder Singh (1953), and a delay of 21 months in Hardayal (1976), were considered crucial to commute death into life imprisonment. But in Balak Ram (1977), even six years’ delay since award of the death sentence by the trial court was not considered sufficient.
In Bhagwan Bux Singh (1978), two-and-a-half years were considered sufficient. In Pashupati Singh (1973), even though the accused was acquitted by the High Court, the Supreme Court commuted sentence on the ground of delay counting from the date of the crime. In Ediga Anamma, the court commuted the sentence in the brutal murder of a woman and her child, because the prospect of hanging had haunted the prisoner for over two years. In T V Vatheeswaran (1983), the court considered two years sufficient between the death sentence in the lower court and hearing in the Supreme Court.
In K P Mohammed (1984), the court indirectly disagreed with the two-year rule saying: “We do not hold or share the view that a sentence of death becomes inexecutable after the lapse of any particular number of years.” A few weeks after Vatheeswaran, in Sher Singh (1983), the court overruled the two-year rule as unrealistic. In Munawar Harun Shah (1983), commutation was rejected despite a five-year delay. In Smt Triveniben (1988) the court said no fixed period can be set and delay after the conclusion of judicial process alone is to be taken into account.
In M N Das (2013), Das was convicted of murder and while on bail he committed another murder. He severed the victim’s head and carried it to the police station holding it in one hand and the weapon in the other hand. The court thought it fit to commute the death sentence into life imprisonment, though only a few days previously the same Bench had refused commutation to Devender Pal Bhullar (whose sentence was subsequently commuted by another Bench).