Tag Archives: death penalty

One Small Step Towards Abolition?

On 31st October, the High Court of Delhi – writing through Justice Muralidhar – decided a death penalty reference that can have (potentially) significant consequences for the future of capital punishment. The appellant had been convicted for the rape and murder of a three-year old child, and been sentenced to death by the trial court. On 17th April, 2014, the High Court affirmed the conviction. With respect to the award of the death penalty, the Court rejected the notorious “balancing test” of Machi Singh (which was contrary to precedent and has been questioned by the Supreme Court subsequently), and held that one important aspect to consider was the possibility of reform and rehabilitation for the criminal.

So far so good. Until now, however, this assessment – of whether or not the convict could be reformed/rehabilitated – was being taken by judges. Reading death penalty cases, it becomes evident that this assessment would rarely be based on objective factors. In most circumstances, it would be a snap judgment, depending upon the judge’s intuitions about the gravity or severity of the crime, whether or not the convict had exhibited remorse, and a number of other factors of this sort. The problems with this approach had already been acknowledged by the Supreme Court before. In Anil vs State of Maharashtra, a 2014 judgment, the Court had noted:

“… the State is obliged to furnish materials for and against the possibility of  reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already  stated, calls for additional materials.”   

Focusing upon this, in its 17th April order, the Court directed the government to assign a probation officer (PO), with the task of preparing a report, devoted to the following two questions:

“(i) Is there a probability that, in the future, the accused would commit
criminal acts of violence as would constitute a continuing threat to society?
(ii) Is there a probability that the accused can be reformed and rehabilitated?”

For the purposes of greater objectivity, the Court laid down three further guidelines that the PO would take into account:

(a) enquire from the jail authorities and seek a report as to the conduct of the accused while in jail.

(b) meet the family of the accused and local people [to] seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) seek specific inputs from two professionals with not less than ten years’ experience from the fields of Clinical Psychology and Sociology.”

Following the directions of the Court, the report was prepared, “based on a personal interview with the Appellant in Tihar Jail, Delhi, interviews with his family members and neighbours  in his native place in Siwan, Bihar, the report of the local panchayat and a report from the Police Station (PS) Basatpur. The SIR also incorporates inputs of the Clinical Psychologist, Psychiatric Social Worker and Superintendent of Jail, Tihar as well as the assessment by the Medical Board of the Institute of Human Behaviour and Allied  Sciences („IHBAS‟).”

It was found that, for the most part, the report was positive. Even though the convict had exhibited no outward signs of repentance, the PO report noted that, based on its findings as a whole, repentance “needs to be developed through reformative and corrective services and it will take a long process for reformation and reintegration into the society.” This was affirmed by the medical report, according to which “there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures.”  Accordingly, the sentence of death was commuted to one of life imprisonment.

There is a shift, therefore, from a situation in which the potential for reformation and rehabilitation is judged from the perspective of two or three judges, with their individual biases, to one in which a whole host of stakeholders, who have had an intimate connection with the convict, are brought into the equation, with the requirement of consulting medical panels adding an extra layer of objectivity to the enquiry. A positive reference from any one or more of those bodies would create enough of a doubt in the Court’s mind to – following Santosh Kumar Bariyar’s “principle of prudence” – refrain from confirming the death penalty.

In the long road towards abolition, this is perhaps one small – yet hugely significant – step.



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Supreme Court Rules on Oral Hearings for Death Penalty Reviews

In a brief – and interesting – judgment today, a Constitution Bench of the Supreme Court ruled – by a 4-1 majority – that death penalty review petitions must be heard orally, in open court. The background of the case was that Order XL, Rule 3 of the Supreme Court Rules allows for review petitions to be decided by “circulation” – i.e., in the chambers of the judges, without oral argument. The constitutionality of Order XL, Rule 3 had been challenged before a Constitution Bench of the Supreme Court in P.N. Eswara Iyer vs Registrar, Supreme Court of India. Krishna Iyer J., writing for the majority, upheld the provision dispensing with oral arguments for reviews. The present Court, being bound by the judgment in P.N. Eswara Iyer, carved out a specific exception for the death penalty, because of its Article 21 implications. It did so by invoking specific observations made by Krishna Iyer J, in that case, namely “…presentation can be written or oral, depending upon the justice of the situation“, and “…the problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation.” (para 40)

Nariman J., writing for the majority, went into the judicial history of Article 21 from A.K. Gopalan to Maneka Gandhi, via R.C. Cooper, before holding that:

“… death sentence cases… are a distinct category of cases altogether. Quite apart from Art.134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other.” (para 29)

And, soon after:

… when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure” [under Article 21].

In addition, rejected the petitioners’ arguments that the review bench strength be increased from three to five (para 39). Regrettably, the Court also affirmed the Triveniben holding, that “time taken in court proceedings [in this case, thirteen and a half years] cannot be taken into account to say that there is a delay which would convert a death sentence into one for life”, and went on to say that its oral hearing rule would not apply to already-dismissed curative petitions.

One of the interesting aspects of today’s judgment is its setting apart of death sentences from all other sentences that have an impact on personal liberty, for special treatment under Article 21. The Court does so on the twin basis of the irreversibility of a death sentence, and the fact that different judges come to different conclusions about awarding death. The second point, however, is something that is common to all sentencing. Clearly, therefore, it acquires special constitutional significance when it is combined with the fact of irreversibility. In other words, irreversibility is what makes the possibility of arbitrariness in death sentencing (as opposed to ordinary sentencing) particularly problematic, and hence the need for the procedural safeguards under Article 21.

Recall, however, that in Bachan Singh vs State of Punjab, the Constitutional challenge to S. 354(3) of the CrPC, which requires judges to give special reasons, in writing, on the award of the death penalty, was dismissed. The majority, in that case, held:

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… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused… In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.”

In Bachan Singh, therefore, the Court considered differential judicial outcomes to be an integral part of criminal sentencing (thus discounting even the possibility of arbitrariness). Santosh Kumar Bariyar more or less departed from this position by subjecting the death penalty to rigorous Article 14 analysis, and proposing standards such as the principle of prudence (which have since been honoured more in the breach than in the observance). Today’s judgment extends the Bariyar line of argument by affirming that the death penalty is not like ordinary criminal sentencing, and must be subjected to exacting constitutional scrutiny. At least potentially, therefore, it leaves the field open for a future challenge that is based on a showing that the administration of the death penalty in India has become so arbitrary and unpredictable (that is, judicial minds are arriving at diametrically opposite conclusions, notwithstanding the same facts), that it is no longer possible for the punishment to survive, and simultaneously remain consistent with Article 14. Or, to put it another way, today’s judgment added a procedural safeguard (open court hearings) to the death penalty scheme, in order that it remain consistent with reasonable procedure under Article 21 — and in particular, to mitigate the potential arbitrariness of different judges arriving at different conclusions, an arbitrariness that becomes constitutionally problematic under Article 21 because of the irreversibility of the death penalty. This implies, of course, that different judges reaching different conclusions (without any discernible basis) is, contra Bachan Singh, which saw that as a praiseworthy aspect of judging, is actually problematic when it comes to the death penalty. Consequently, empirical studies demonstrating precisely that (whatever procedural safeguards there may be) might constitute a strong ground – sometime in the future – to challenge the prevalence of death penalty in India.

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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.

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

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Death Penalty: Bhullar Overruled

Today, in Shatrughan Chauhan v. Union of India, the Supreme Court delivered a landmark judgment on the death penalty and, inter alia, overruled its own 2013 judgment in Bhullar v. NCT. Recall that in Bhullar, relying upon the concurring judgment of Shetty J. in Triveniben, the Supreme Court had held that for cases under terrorism statutes like TADA and POTA, because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition could not be a ground for commuting the death sentence to life imprisonment (see Paragraph 40 of Bhullar). The Court in Bhullar observed:

“Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State. While doing so, they do not show any respect for human lives. Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of those killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” 

The Supreme Court rejected this reasoning. It held that in relying upon Shetty J.’s concurrence in Triveniben, the Bhullar court overlooked the majority judgment’s stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment, and thus having no force as precedent). The Court held, on the other hand, that:

There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence.” (Para 63)

The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor to be considered on a standard Bachan Singh balance-sheet enquiry, required under the due process requirements of Article 21.

At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings (this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the point most forcefully). The inevitable mental agony that accompanies waiting for an inevitable death  demeans individual dignity. Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include treating all individuals with dignity, today’s judgment reaffirms the humanism that is the foundation the Constitution, and affirms that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.

The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation (paras 71 – 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions. This is why, for instance, the American Supreme Court in Ford v. Wainwright held that executing the insane was a form of “cruel and unusual punishment” under the Eighth Amendment, and served no penological goals.

Coming to the fifteen individual cases before it, the Court found that in each of these cases, there had been an unexplained an unwarranted delay of many years, leaving the convicts on death row. Consequently, it commuted the sentences of life imprisonment. It ended by framing guidelines for the purpose, requiring that:

– there be no solitary confinement while the mercy petition is pending before the President

– free legal aid be provided to death row convicts

– the provision of all relevant materials to the President speedily and efficaciously

– the communication of the rejection of the mercy petition to the convict by the Governor, and/or then by the President, and to his family, in writing and as a matter of right (this is especially important, considering that the last execution India carried out, the family was not informed)

– a minimum of fourteen days’ notice to the convict, to allow him to meet his family (see above)

– regular physical and mental health check-ups

– provision of all relevant documents to the convict, so as to allow him the most efficacious access possible to judicial remedies

– a final meeting with friends and family

– a post-mortem report: this is especially important, as the Court linked this to the constitutionality of hanging itself: it had been argued that hanging caused undue amounts of pain – especially when death was caused not due to the breaking of the neck, but by long strangulation. The Court specifically held that the point of the post mortem was to ascertain how death had been caused. Feasibly, then, in the near future, if it is found that a significant number of hangings cause pain and other forms of physical degradation, it will be possible to challenge the constitutionality of this method itself.

Today’s judgment, it is submitted, is rightly decided. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea – say it softly – of State-sanctioned killing of human beings has no place in a civilized democracy:

“Remember, retribution has no Constitutional value in our largest democratic country.” (Paragraph 263)




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