The author of this article is Sivarenjini G B, Editor Trainee at ljrfvoice.com.
In this work, she tries to discuss about the different layers of the death penalty and analyses the judicial aspects of the ‘rarest of rare’.
The soul of criminal Justice delivery system is the art of recovering the soul of the man smeared by crime
Plato
Introduction
In April 2022 a Bench of the Supreme Court comprising Justices Uday Umesh Lalit, S Ravindra Bhat and Bela M Trivedi decided to critically look into the routine and abrupt way in which trial judges impose the death penalty on convicts. Taking into consideration the equality principle and the due process protection, the apex court framed practical guidelines for the courts to adopt and enforce. These guidelines came out of an observation that a concrete framework to evaluate the possibility of reformation does not exist in Indian Criminal Jurisprudence. In that sense, the guidelines provided by the Supreme Court of India stand as a testimony to innovative judicial craftsmanship as there is no coherent framework for the same was formulated by legislature or executive. Besides the issuance of the guidelines the discussions on capital punishment in India have once again come to the spotlight. Capital Punishment, otherwise called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. Being the highest and the most crucial penalty awardable to an accused, the constitutionality, as well as the morality of the same, is always a bone of contention in the Indian Scenario. Provided that the Indian criminal justice delivery system is mainly grounded on reformative theory, granting of the death penalty is a deprivation of one’s right to rehabilitation. It was beautifully explained by Justice V R Krishna Iyer; “Every saint has a past and every sinner has a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him”
Evolution of death penalty in India: a legal perspective
The traces of the death penalty in India can be outlined from the time immemorial. The Greek philosopher Plato opined that the death penalty should be used only for the incorrigible. The only voice of opposition to the death penalty in the Pre-Independence era was Shri Gaya Prasad Singh, one of the members of British India’s Legislative Assembly in the year 1931. On the eve of Independence, a number of statutes framed by the colonial government were retained by India including the Code of Criminal Procedure, 1898[CrPC, 1898] and the Indian Penal Code, 1860 [IPC]. One of the six punishments that could be imposed under the law provided by IPC was death.
The Offences for Which Death Penalty is Prescribed Under Indian Penal Code
• Waging war against the Government of India [Section 121]
• Abetment of mutiny, if mutiny is committed in consequence thereof [Section 132]
• Giving or fabricating false evidence with intent to procure conviction of capital offence [Section 194]
• Murder [Section 302]
• Dacoity with murder [Section 396]
• Abetment of suicide of child or insane person [Section 305]
Provisions of Other Criminal Statutes Which Provide for The Punishment of Death Penalty
• Direct or indirect abetment of Sati under the Commission of Sati (Prevention) Act, 1987.
• By virtue of SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty
• Rape of a minor below 12 years of age is punishable with death under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for habitual offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide for the death penalty for certain offences committed by members of the armed forces.
By virtue of Section 367(5) of the CrPC 1898 courts were required to record reasons where the court decided not to impose a sentence of death. But this irrational provision underwent a drastic change in 1955 when the Parliament repealed Section 367(5) of CrPC 1898 altering the position of the death sentencing. It ruled out the earlier loopholes in the statute according to which the death penalty was the rule and life imprisonment was an exception. The re-enactment of the Criminal Procedure Code in 1973 signalled other significant changes in the Indian Criminal Justice System. The changes in Section 354(3) are of paramount importance as it mandated the judges to state special reasons for why they imposed the death sentence. The amendment also resulted in the insertion of Section 235(2) to the CrPC which prescribes the possibility of a post-conviction hearing sentence, including a death sentence. The changes brought by these amendments exemplify that human rights are unparalleled and they override any other justifications.
In the year 1967, the Law Commission in its 35th report rejected the proposal for the scrapping of the death penalty. It laid down that capital punishment acts as a deterrent as basically every human being dreads death. The Law Commission report substantiates the opinion of a section of our society that vehemently believes that granting of the death penalty for heinous crimes serves justice to the victims. They are of the view that the scrapping of death penalty allows the criminals to escape with a lesser punishment and it would deprive the law of its effectiveness and pave way for the travesty of justice. But the Law Commission chaired by Justice A P Shah in the year 2015 in its 262nd report concludes that the death penalty fails to achieve any constitutionally valid penological goals. It also pointed out the insignificance of the death penalty saying that in focusing on the death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative face of justice is lost sight of.
The story of the evolution of the death penalty in the Indian criminal jurisprudence is also the story of the transition of our criminal justice delivery system with a broader belief that Criminality is curable deviance.
Bachan Singh v. State of Punjab: a path-breaking decision
The progressiveness of the Supreme Court of India on the issues of the death penalty first appeared clearly in the landmark case of Bachan Singh v. State of Punjab. It exquisitely interpreted the ‘special reasons requirement’ for the death penalty to imply that the death penalty should be awarded only in ‘the rarest of rare cases’ when the alternative option is unquestionably foreclosed.
In that case, Bachan Singh was convicted and sentenced to death under Section 302 of IPC for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions judge. The High Court of Punjab confirmed his death sentence and dismissed the appeal. When the case reached the Supreme Court the issues raised were
i. Whether death penalty provided for the offence of murder in Section 302 of IPC is unconstitutional?
ii. Whether the sentencing procedure provided in Section 354(3) of CrPC, 1973 is unconstitutional on the ground that it invests the Court with unguided discretion
Analyzing these issues the major conclusion drawn by the five members Constitution Bench was that judges should never be bloodthirsty as persons convicted of murder. It upheld the fact that life imprisonment is the rule and the death penalty is an exception. The judgement also shows the high spirited humanitarian face of the Supreme Court of India as it explicitly stated that before opting for the death penalty the circumstances of the offender have to be taken into consideration along with the circumstances of the crime. A test emanated from the Bachan Singh case prescribed that “A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and just a balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised”.
The apex court, in this case, exhorted the conscience of our society saying that the courts while adjudicating on life and death should ensure that rigor and fairness are given supremacy over mere emotional considerations.
Mercy Petition: A liberator
According to article 72 and 161 of the Indian Constitution, the President of India and the Governor are given power respectively to grant pardon and to suspend, remit or commute the ruling in certain cases. The President or the Governor may consider the case of the convict and are empowered to pardon death judgement. The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death penalty then by virtue of Article 72 the convict or his relative may submit a mercy petition to the President. Article 161 says that they may file a mercy petition to the Governor also.
It adorns the headlines of our newspapers for the past few days as A G Perarivalan one of the assassination convicts of Rajiv Gandhi was released from jail on May 18, 2022. In the issue, the crucial turning point was the commuting of the death sentence by the Supreme Court on February 18, 2014. On February 18, 2014, the three-judge bench of the Supreme Court comprising Chief Justice P Sathasivam, Ranjan Gogoi and Shiv Kirti Singh commuted his and the two others’ death penalty to life sentence. Supreme Court in that verdict upheld that “apex constitutional authorities like the President and the Governor must exercise their clemency powers under Article 72 and 161, especially within the bounds of constitutional discipline and in an expeditious way”. One of the highlighting features of the judgement was that the Supreme Court stood by the fundamental rights of prisoners stating that “inordinate delay caused at the hands of executive to decide the convicts’ mercy petition amounts to the infringement of Article 21”. Describing the plight of prisoners as ‘living death’ the apex court directed the government to work in a more systematized way to repose the confidence of people in the institution of democracy. The landmark judgement in the case of Shatrughnan Chauhan v. Union of India [2014] clarifies this stand. In that case, the Supreme Court condemned the agonizing delay caused to the convicts only on the grounds of the gravity of the crime. The court viewed that the inexplicable delays in taking a decision relating to the petition to President for pardon create adverse physical conditions and psychological trauma on the convict under the sentence of death.
Judicial Precedents
The judgement of the Supreme Court in the classic case of Bachan Singh v. State of Punjab [1980] towers as a colossal in the Indian Judicial history as it fuelled many human rights campaigns which raised slogans to abolish the death penalty, the draconian punishment. There are other judicial precedents which intensify the debates on the awarding of the death penalty. An analysis of these judgements shows the transformation of the judiciary from a retributive perspective to a reformative one.
▪ Jagmohan Singh v State of Uttar Pradesh [1973]
In this case, the Supreme Court held quoting Article 21 “deprivation of life is constitutionally permissible if that is done according to the procedure established by law”
▪ Rajendra Prasad v. State of Uttar Pradesh [1979]
In this case, the Supreme Court upheld that if the murderous operation of a criminal jeopardizes social security in a persistent and perilous fashion, then the enjoyment of fundamental rights of that person may be rightly annihilated
▪ Macchi Singh v. State of Punjab [1983]
Here the Supreme Court invoked the doctrine of ‘rarest of rare’ and laid down certain considerations for deciding whether a case comes under the purview of rarest of rare cases or not. The term ‘collective conscience of the society’ was used by the Supreme Court for the first time in this case.
▪ Mukesh &Anr v. State for NCT of Delhi [2017]
This case is widely called the Nirbhaya gang-rape case which shook the conscience of our nation. Four men found guilty of the gang rape and murder of a 23-year-old woman on a bus in the Indian Capital Delhi were awarded the death penalty and hanged. One of the issues raised in this case was whether the convicts of such crimes should be given the death penalty or not. The death sentence was unquestionably granted citing that the incident indicates the ‘demonic form of human lust’. The judges found this particular crime ‘the rarest of rare’ and fit for awarding death penalty.
Conclusion
A death penalty is a unique form of punishment, with a glaring distinction from any other forms of incarceration. Between life and death, those who are sentenced to death live a life of misery. In 1949 the US Supreme Court held that “retribution is no longer the dominant objective of the criminal law. Reformation as well as the rehabilitation of the offenders have become the important goals of criminal jurisprudence”. The right to rehabilitation was upheld in the famous case of Laaman v. Helgemoe. The modern penology theory has to be reformed with a special emphasis on adopting an individualistic approach which analyses the socio-economic and emotional predicament which constituted the offender rather than the offence. Before sending the guilty to the gallows, our criminal justice delivery system has to realize that criminality is a disease of the soul.
Reference
1. Death Penalty-Trial Court Must Elicit Information From State& Accused On Mitigating Circumstances : Supreme Court Issues Guidelines, LiveLaw, May 22 2022, 09.25 am, https://www.livelaw.in
2. Dr. Subhash C Gupta, Capital Punishment in India, Deep & Deep Publications, 1986
3. Law Commission Report, 1967
4. Law Commission Report, 2015
5. Bachan Singh v. State of Punjab, AIR 1980 SC 898
6. Shatrughnan Chauhan v. Union of India, WP (Criminal) No. 55 of 2013 7. Jagmohan Singh v State of Uttar Pradesh, AIR 947, 1973 SCR (2) 541 8. Rajendra Prasad v. State of Uttar Pradesh, AIR 916, 1979 SCR (3) 78 9. Macchi Singh v. State of Punjab, AIR 957, 1983 SCR (3) 413
10. Mukesh &Anr v. State for NCT of Delhi, Criminal Appeal NOS. 607-608 of 2017 11. Commission of Sati (Prevention) Act, 1987.
12. SC and ST (Prevention of Atrocities Act), 1989
13. Protection of Children from Sexual Offences (POCSO) Act, 2012.
14. Narcotic Drugs and Psychotropic Substances Act, 1985.
15. Unlawful Activities (Prevention) Act, 1967
16. Indian Penal Code, 1860
