Guest Post: Recent Legal Confusion in the Supreme Court’s Death Penalty Jurisprudence

(In this guest post, Shivendra Singh highlights the extent to which India’s present death penalty jurisprudence is rife with doctrinal contradictions)

The Supreme Court’s pronouncement in Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684, has acquired a place of special significance in Indian criminal law. The basis of the Court’s conclusion in Bachan Singh – that the sentencing discretion inherent in Section 302 of the Indian Penal Code is not violative of Article 14, 19 and 21 of the Constitution of India – was that norms of sentencing cannot be straitjacketed into a rigid formula. So, as long as a court could state ‘special reasons’ as per Section 354 (3) of the CrPC for the imposition of death penalty after considering the aggravating and mitigating circumstances of both the crime and the criminal, death penalty could be lawfully imposed. The Supreme Court in Bachan Singh was careful to clarify that it was not interested in delineating the list of aggravating and mitigating circumstances as it might lead to erosion of the peremptory norm that the sentencing discretion must not be confined or cribbed in water-tight compartments. Sadly, however, a three-judge Bench of the Court in Macchi Singh Vs. State of Punjab, (1983) 3 SCC 470, ignored it and thereby watered down the fundamental thesis of Bachan Singh. Above all, Bachan Singh nowhere says that death penalty could be awarded if the aggravating circumstances simply outweigh the mitigating circumstances. The ratio decidendi of Bachan Singh is that the judges should not be bloodthirsty and death penalty could be awarded only when the alternative option is unquestionably foreclosed.

It is generally accepted that the Supreme Court’s opinion in Swamy Shraddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767, is a landmark judgment. There are certain reasons as to why it is considered to be a landmark decision. First, it was rendered by a Bench of three judges to resolve a rare deadlock between two judges on whether the accused should be sentenced to life imprisonment or be condemned to death. Secondly, this was the first explicit admission by the Supreme Court that the rarest of rare cases principle nor the Machhi Singh categories were followed by it uniformly and consistently. Thirdly, the Court laid down the theoretical foundations of subjecting an accused to 20 or 30 or 35 years of imprisonment without any remission so that the practical inadequacy of life imprisonment, which roughly works out to be 14 years or so due to remission by the appropriate Government, does not lead to blood-thirsty judges which was frowned upon in Bachan Singh. All in all, Swamy Shraddananda (2) marked an important moment as far as this area of the law is concerned. The grave concerns expressed in Swamy Shraddananda (2), with respect to the inconsistent outcomes in sentencing even by the Supreme Court, were reiterated in Santosh Kumar Bariyar Vs. State of Maharashtra, (2009) 6 SCC 498. So far so good. The difficulties, however, are discussed below.

(a) The Supreme Court has accepted Swamy Shraddananda (2) as an authoritative pronouncement now and this is reflected in its widespread affirmation by the Court on several occasions since 22.07.2008. I do not intend to multiply citations here but the reader can refer to the decision in Gurvail Singh Vs. State of Punjab, (2013) 10 SCC 631. However, the interesting question that arises is whether an accused can be given death penalty without considering whether the sentencing approach delineated in Swamy Shraddananda (2) to imprison the accused to 20 or 30 or 35 years of imprisonment without any remission would be an adequate punishment or not. Has the Supreme Court erred in not considering this aspect at all in Sunder Vs. State of Punjab,  (2013) 3 SCC 215  and Deepak Rai Vs. State of Bihar, (2013) 10 SCC 421 before awarding death penalty to the accused?  While the execution of the sole accused in Sunder has been stayed pursuant to the order dated 06.03.2013 passed by the Supreme Court in W.P. (Crl.) No. 39 of 2013 filed by the accused, the Review Petition filed in Deepak Rai was dismissed on 08.01.2014. Can lives be judicially extinguished without considering such a substantial question of law? After all, Bachan Singh held that death penalty could be awarded only when the alternative option is unquestionably foreclosed. Isn’t the option of imprisoning the accused to 20 or 30 or 35 years of imprisonment without any remission an alternative option which must be considered by the Court before imposing death penalty?

(b) A two-Judge Bench of the Supreme Court in Shankar Kishan Rao Khade Vs. State of Maharashtra, (2013) 5 SCC 546 has held that to award the death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, i.e., no mitigating circumstance favouring the accused. Going by this test, there is a good arguable case to suggest that Ajmal Kasab also could not have been sentenced to death as his young age was a mitigating factor. I will leave that issue aside for the moment. Lokur, J. in a separate but concurring opinion in Shankar Kishan Rao Khade has delineated the cases/instances where the principles earlier applied to the sentencing decision have been departed from by the Supreme Court. This bears a close resemblance with the opinion of the Supreme Court in Swamy Shraddananda (2) and Santosh Kumar Bariyar wherein the Court lamented the inconsistency in the application of the sentencing discretion inherent in Section 302 of IPC by it. However, on 27.02.2014, in an extremely significant decision, a three-judge Bench of the Supreme Court in Mahesh Dhanaji Shinde Vs. State of Maharashtra (Criminal Appeal No 1210-1213 of 2012) has held:

“ A reference to several other pronouncements  made  by  this  Court  at different points of  time  with  regard  to  what  could  be  considered  as mitigating and aggravating circumstances and how they are to  be  reconciled has already been detailed hereinabove.  All that would be necessary  to  say is that the Constitution Bench in Bachan Singh (supra) had  sounded  a  note of caution against treating the aggravating and mitigating circumstances  in separate  water-tight  compartments  as  in  many  situations  it   may   be impossible to isolate them and both sets of circumstances will  have  to  be considered to cull  out  the  cumulative  effect  thereof.   Viewed  in  the aforesaid context the observations contained in para 52 of Shankar  Kisanrao Khade (supra) noted above, namely, 100% crime test and 0% criminal test  may create situations which may well go beyond what  was  laid  down  in  Bachan Singh (supra).

We may also take note of  the  separate  but  concurring  judgment  in Shankar Kisanrao  Khade  (supra)  enumerating  the  circumstances  that  had weighed in favour of  commutation  (Para  106)  as  well  as  the  principal reasons for confirming the death penalty (Para 122).

      In para 123 of the aforesaid concurring opinion the  cases/instances where the principles earlier applied to the sentencing  decision  have  been departed from are also noticed.  Though such departures may appear  to  give the sentencing jurisprudence in  the  country  a  subjective  colour  it  is necessary to  note  that  standardisation  of  cases  for  the  purposes  of imposition of sentence was disapproved in Bachan Singh (supra) holding  that

“it  is  neither  practicable  nor  desirable  to  imprison  the  sentencing discretion of a judge or jury in the strait-jacket of exhaustive  and  rigid standards”.(Para 195)  In this regard, the observations with regard  to  the impossibility of laying down standards to regulate the exercise of the  very wide discretion in matters of sentencing made  in  Jagmohan  Singh  (supra), (Para 22 hereinabove) may also be usefully recalled.  In fact, the  absence of any discretion in the matter of sentencing has been the prime reason  for the indictment of Section 303 IPC in Mithu Vs. State of Punjab. The view of Justice Chinnappa Reddy in para  25  of  the  report  would  be  apt  for reproduction hereinbelow:-

      “25. Judged in the light shed by Maneka Gandhi and Bachan  Singh,  it is impossible to uphold Section 303 as  valid.  Section  303 excludes judicial discretion. The scales of justice are removed from the  hands of the Judge so soon as  he  pronounces  the  accused  guilty  of  the  offence. So  final,  so  irrevocable  and  so  irrestitutable  is  the sentence  of  death  that  no  law  which  provides  for  it   without involvement of the judicial mind can be said  to  be  fair,  just  and reasonable. Such a law must necessarily be  stigmatised  as  arbitrary and oppressive. Section 303 is such a law and it must go the way  of  all bad laws. I agree with my Lord Chief Justice  that  Section  303, Indian Penal Code, must be struck down as unconstitutional.”

(emphasis supplied by me)

I urge the reader to consider:

• Can a three-judge Bench of the Court in Mahesh Dhanji Shinde impliedly overrule the decision of the three-judge Bench of the Court in Swamy Shraddananda (2) that the decisions of the Supreme Court itself depicted a doctrinal inconsistency with respect to the application of the judicial discretion inherent in Section 302? Wasn’t it more appropriate for the Court to refer the matter to a larger Bench?
• Is there any inconsistency in the judgments of the Supreme Court in Swamy Shraddananda (2) and Bachan Singh?

Interestingly, on 05.03.2014, a two-judge Bench of the Supreme Court has held in Ashok Debbarma @ Achak Debbarma Vs. State of Tripura (Criminal Appeal) No. 47-48 of 2013:

“We have laid down three tests – crime  test,  criminal  test  and  RR test, not the “balancing test”, while deciding the proportionality  of  the sentence.  To award death sentence, crime test has to be  fully  satisfied and there should be no mitigating circumstance favouring the accused,  over and above the RR test.   The hallmark of a sentencing policy, it is often said, that sufficiently guides and attracts the Court is the  presence  of procedures that require the Court to  consider  the  circumstances  of  the crime and the criminal before it recommends sentence.”

(emphasis supplied by me)

On this note, I leave it to the readers to decide whether India needs Bachan Singh (2) or not. In my opinion, it does. The Supreme Court of India (not the Supreme Courts of India) owes it to the people of India.

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(Shivendra Singh graduated from the NALSAR University of Law, Hyderabad, in 2010 and is currently practising in the Supreme Court of India.)