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Capital Punishment

Political Science Research Paper


To Be or not to Be

G.V.Sai Shreyas
2015035, Semester - 1
Damodaram Sanjivaiyya National Law University
Vishakapatnam
CHAPTERIZATION

1) Index of Authorities
2) Acknowledgement
3) Introduction
4) Definition of Capital Punishment
5) Historical Background
6) Ethical Debate behind its Existence
7) Famous Death-Row Inmates and Hangings and its effect on Society
8) Bibliography

Index of Authorities
1) Code of Criminal Procedure,1973
2) Army Act,1950
3) Navy Act,1957
4) Air Force Act, 1950
5) Bombay Prohibition (Gujrat Amendment) Bill, 2009
6) Criminal Law (Amendment ) Act, 2013
7) Prevention of Sati Act,1950
8) Narcotic Drugs and Psychotropic Substances(Prevention) Act
9) Indian Penal Code, 1860

Acknowledgement
I would like to thank, Mrs. Nirmala Devi maam for her support and guidance in this Project,
namely, Capital Punishment: To Be or not to Be, I would also like to thank all those
volunteers back in Hyderabad who participated in the Emprical Study, also would like to
thank The Governament of Law Commission of India , for their consultation paper on Death
Penalty

Introduction
Capital punishment is as fundamentally wrong as a cure for crime as charity is wrong as a
cure for poverty. Henry Ford
Or
Capital punishment is our society's recognition of the sanctity of human life. Orrin Hatch
The aforementioned quotes or wise sayings as they go by these two distinguished individuals
pretty much sums up the Research Question and the Research Topic in quiet a length.
In this project, Capital Punishment is discussed in great lengths, its Origin, Historical
Background, Important Cases, Social-Ethical-Moral Views, Need for change in Juvenile
Laws and whether India should also Ratify with the U.N.s Norms.
Post discussing all this, the personal bias of the researcher along with the extensive research
that is offered beforehand, and the researcher comes to a definitive conclusion, that whether
in his view, after the research, the researcher still stands to his view point in support of
Capital Punishment
Further, in this project an Empirical Study has also been conducted, whose results are
enumerated hereafter and what todays law students think about capital punishment, its
implications on the society and their stand on it.
Simply put, this research deals with the multifaceted aspects of Capital Punishment, looking
at it from the various standpoints and discussing its implications.
The research is put forth hereafter

Definition of Capital Punishment


First and foremost, the authoritative work, which is Blacks Law Dictionarys definition of
Capital Punishment is discussed hereafter
The Sentence of death for a serious crime, a penalty that makes a person or entity ineligible
to participate in an activity that the person or entity previously participated in, and the penalty
is usu. imposed because of some type of gross misconduct.1
There are two aspects to this definition as put forth by B.A.Garner
1) Serious Crime Serious Crime here is not referred to a grave crime, but instead is
referred to a crime which is so heinous in nature that it has affected society in a grave
way, a crime which has shook the social conscious of the society.
2) Gross Misconduct Conduct of the wrongdoer must be gross, vis--vis, must be
something deliberately heinous in nature, that one does not experience in day to dy,
social life.
The Indian Position somehow slightly defers from Blacks, there is no one particular
definition but is generally accepted to be some ambulation or fragmented version of Blacks
definition, it loosely can be defined as
In those cases, those rarest of rare cases, where crime committed is so heinous that the
society in whole was deeply affected by it, and which has been detrement to the society at
large, the punishment for such crimes shall be Capital Punishment, by hanging 2or by
shooting3
The aforementioned Definition, is a derivative of many definitions as understood by the
researcher, and is a result of said research.
An interesting fact is that the researcher chose to add the term, rarest of rare into his
definition, which can be seen as a result of the Court Judgement in in Shankar Kisanrao
Khade v. State of Maharashtra4 , the Honorable Judge states as quoted below
It seems to me that though the courts have been applying the rarest of rare principle, the
executive has taken into consideration some factors not known to the courts for converting a
death sentence to imprisonment for life.
The Crimes for which the Court can award said punishment is discussed hereafter

Crimes for which the Court can award said punishment


Sections Under IPC or Other Nature of Crime
Law
120B of Indian Penal Code5 Criminal Conspiracy
1 Blacks Law Dictionary, 9th Edition, Bryan A. Garner

2 Code of Criminal Procedure,1973, Section 354(5)

3 The Air Force Act, 1950: The Army Act, 1950: The Navy Act,1957

4 (2013)5SCC546
121 of IPC Waging War against Constitution of India
132 of IPC Mutiny in the armed forces
194 of IPC False Evidence to procure Capital Punishment
302,303 of IPC Murder
305 of IPC Abetting Suicide of Minor, Retarded or Intoxicated
Person
Part II Section 4 of Prevention of Aiding or Abetting Sati
Sati Act6
Sec. 364A of IPC Kidnapping
31A of Narcotic Drugs and Drug Trafficking in cases of repeat Offences
Psychotropic Substances7
396 of IPC Banditry with Murder
376A of IPC & Criminal Law Rape
(Amendment ) Act, 20138
Bombay Prohibition (Gujrat In Gujrat only Manufacture and sale of Poisioned
9
Amendment) Bill, 2009 alcohol resulting in death(s)

These are the Capital Offences for which Capital Punishment can be granted
Next we will discuss the Petitions available to inmates on the Death Row
1) Review Petition In this the Court reviews the Judgement in case of a grave
erroneous act in the Dicta
2) Curative Petition This remedy is available to Death row inmates, post disapproval or
turning down of Review Petition, the Supreme Court of India, added in this Petition to
prevent grave miscarriage of Justice post the 2002 landmark case.10
Further Discussed are the Clemency that can be granted by the President or the Governor of
a State-
Clemency
Further the Carrying of the Punishment is discussed by the researcher

5 Indian Penal Code,1882

6 Prevention of Sati Act,1932

7 Narcotic Drugs and Psychotropic Substances ( Prevention ) Act

8 Criminal Law (Amendment ) Act, 2013

9 Bombay Prohibition (Gujrat Amendment) Bill, 2009

10 http://www.hindustantimes.com/india-news/curious-case-of-a-curative-petition/article1-
1374106.aspx
1) Hanging According to Code of Criminal Procedure, it laws down that, under (5) ,
Death Penalty can be carried out by hanging till death. This is a common practice
followed by our country.11
2) Shooting According to the Army, Navy and Air force Acts, death penalty can be
carried out by shooting till death, most likely by a firing squad.12

Historical Background
As far back as the Ancient Laws of China, the death penalty has been established as a
punishment for crimes. In the 18th Century BC, the Code of King Hammurabi of Babylon
codified the death penalty for twenty five different crimes, although murder was not one of
them. The first death sentence historically recorded occurred in 16th Century BC Egypt
where the wrongdoer, a member of nobility, was accused of magic, and ordered to take his
own life. During this period non-nobility was usually killed with an ax.

In the 14th Century BC, the Hittite Code also prescribed the death penalty. The 7th Century
BC Draconian Code of Athens made death the penalty for every crime committed. In the 5th
Century BC, the Roman Law of the Twelve Tablets codified the death penalty. Again, the
death penalty was different for nobility, freemen and slaves and was punishment for crimes
such as the publication of libels and insulting songs, the cutting or grazing of crops planted
by a farmer, the burning [of] a house or a stack of corn near a house, cheating by a patron of
his client, perjury, making disturbances at night in the city, willful murder of a freeman or a
parent, or theft by a slave. Death was often cruel and included crucifixion, drowning at sea,
burial alive, beating to death, and impalement (often used by Nero). The Romans had a
curious punishment for parricides (murder of a parent): the condemned was submersed in
water in a sack, which also contained a dog, a rooster, a viper and an ape. The most notorious
death execution in BC was about 399 BC when the Greek philosopher Socrates was required
to drink poison for heresy and corruption of youth.

Mosaic Law codified many capital crimes. In fact, there is evidence that Jews used many
different techniques including stoning, hanging, beheading, crucifixion (copied from the
Romans), throwing the criminal from a rock, and sawing asunder. The most infamous
execution of history occurred approximately 29 AD with the crucifixion of Jesus Christ
outside Jerusalem. About 300 years later, the Emperor Constantine, after converting to
Christianity, abolished crucifixion and other cruel death penalties in the Roman Empire. In
438, the Code of Theodosius made more than 80 crimes punishable by death.

Britain influenced the colonies more than any other country and has a long history of
punishment by death. About 450 BC, the death penalty was often enforced by throwing the
condemned into a quagmire. By the 10th Century, hanging from gallows was the most
frequent execution method. William the Conqueror opposed taking life except in war, and
ordered no person to be hanged or executed for any offense. However, he allowed criminals
to be mutilated for their crimes. During the middle ages, capital punishment was
11 Code of Criminal Procedure,1973

12 The Army Act,1950; The Navy act,1957;The Air Force Act, 1950
accompanied by torture. Most barons had a drowning pit as well as gallows and they were
used for major as well as minor crimes. For example, in 1279, two hundred and eighty nine
Jews were hanged for clipping coin. Under Edward I, two gatekeepers were killed because
the city gate had not been closed in time to prevent the escape of an accused murderer.
Burning was the punishment for women's high treason and men were hanged, drawn and
quartered. Beheading was generally accepted for the upper classes. One could be burned for
marrying a Jew. Pressing became the penalty for those who would not confess to their crimes.
The executioner placed heavy weights on the victim's chest. On the first day he gave the
victim a small quantity of bread, on the second day a small drink of bad water, and so on until
he confessed or died. Under the reign of Henry VIII, the numbers of those put to death are
estimated as high as 72,000. Boiling to death was another penalty approved in 1531, and
there are records to show some people boiled for up to two hours before death took them.
When a woman was burned, the executioner tied a rope around her neck when she was tied to
the stake. When the flames reached her she could be strangled from outside the ring of fire.
However, this often failed and many were literally burnt alive.

In Britain, the number of capital offenses continually increased until the 1700's when two
hundred and twenty-two crimes were punishable by death. These included stealing from a
house in the amount of forty shillings, stealing from a shop the value of five shillings,
robbing a rabbit warren, cutting down a tree, and counterfeiting tax stamps. However, juries
tended not to convict when the penalty was great and the crime was not. Reforms began to
take place. In 1823, five laws passed, exempting about a hundred crimes from the death
[penalty]. Between 1832 and 1837, many capital offenses were swept away. In 1840, there
was a failed attempt to abolish all capital punishment. Through the nineteenth and twentieth
centuries, more and more capital punishments were abolished, not only in Britain, but also all
across Europe, until today only a few European countries retain the death penalty.

The first recorded execution in the English American colonies was in 1608 when officials
executed George Kendall of Virginia for supposedly plotting to betray the British to the
Spanish. In 1612, Virginia's governor, Sir Thomas Dale, implemented the Divine, Moral, and
Martial Laws that made death the penalty for even minor offenses such as stealing grapes,
killing chickens, killing dogs or horses without permission, or trading with Indians. Seven
years later these laws were softened because Virginia feared that no one would settle there.

In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the
crime of theft. Some colonies were very strict in their use of the death penalty, while others
were less so. In Massachusetts Bay Colony the first execution was in 1630, but the earliest
capital statutes do not occur until later. Under the Capital Laws of New-England that went
into effect between 1636-1647 the death penalty was meted out for pre-meditated murder,
sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape,
manstealing, perjury in a capital trial, rebellion, manslaughter, poisoning and bestiality. Early
laws were accompanied by a scripture from the Old Testament. By 1780, the Commonwealth
of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery,
arson, rape, and treason.

The New York colony instituted the so-called Duke's Laws of 1665. This directed the death
penalty for denial of the true God, pre-meditated murder, killing someone who had no
weapon of defense, killing by lying in wait or by poisoning, sodomy, buggery, kidnapping,
perjury in a capital trial, traitorous denial of the king's rights or raising arms to resist his
authority, conspiracy to invade towns or forts in the colony and striking one's mother or father
(upon complaint of both). The two colonies that were more lenient concerning capital
punishment were South Jersey and Pennsylvania. In South Jersey there was no death penalty
for any crime and there were only two crimes, murder and treason, punishable by death.

However under the direction of the Crown, harsher penal codes were execution there until
1691 [sic]. In Pennsylvania, William Penn's Great Act (1682) made passed in the colonies
[sic]. By 1776, most of the colonies had roughly comparable death statutes which covered
arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave
rebellion, and often counterfeiting. Hanging was the usual sentence. Rhode Island was
probably the only colony which decreased the number of capital crimes in the late 1700's.

Some states were more severe. For example, by 1837, North Carolina required death for the
crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery,
burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a
slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting
slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery,
burglary, arson, or mayhem and others. However, North Carolina did not have a state
penitentiary and, many said, no suitable alternative to capital punishment.

The first reforms of the death penalty occurred between 1776-1800. Thomas Jefferson and
four others, authorized to undertake a complete revision of Virginia's laws, proposed a law
that recommended the death penalty for only treason and murder. After a stormy debate the
legislature defeated the bill by one vote. The writing of European theorists such as
Montesquieu, Voltaire, and Bentham had a great effect on American intellectuals, as did
English Quaker prison reformers John Bellers and John Howard.

On Crimes and Punishment, published in English in 1767 by the Italian jurist Cesare
Beccaria, whose exposition on abolishing capital punishment was the most influential of the
time, had an especially strong impact. He theorized that there was no justification for the
taking of life by the state. He said that the death penalty was "a war of a whole nation against
a citizen, whose destruction they consider as necessary, or useful to the general good." He
asked the question what if it can be shown not to be necessary or useful? His essay conceded
that the only time a death was necessary was when only one's death could insure the security
of a nation -- which would be rare and only in cases of absolute anarchy or when a nation was
on the verge of losing its liberty. He said that the history of using punishment by death (e.g.,
the Romans, 20 years of Czaress Elizabeth) had not prevented determined men from injuring
society and that death was only a "momentary spectacle, and therefore a less efficacious
method of deterring others, than the continued example of a man deprived of his liberty...."

Organizations were formed in different colonies for the abolition of the death penalty and to
relieve poor prison conditions. Dr. Benjamin Rush, a renowned Philadelphia citizen,
proposed the complete abolition of capital punishment. William Bradford, Attorney General
of Pennsylvania, was ordered to investigate capital punishment. In 1793 he published An
Enquiry How Far the Punishment of Death is Necessary in Pennsylvania. He strongly insisted
that the death penalty be retained, but admitted it was useless in preventing certain crimes. In
fact, he said the death penalty made convictions harder to obtain, because in Pennsylvania,
and indeed in all states, the death penalty was mandatory and juries would often not return a
guilty verdict because of this fact. In response, in 1794, the Pennsylvania legislature
abolished capital punishment for all crimes except murder "in the first degree," the first time
murder had been broken down into "degrees." In New York, in 1796, the legislature
authorized construction of the state's first penitentiary, abolished whipping, and reduced the
number of capital offenses from thirteen to two. Virginia and Kentucky passed similar reform
bills. Four more states reduced its capital crimes: Vermont in 1797, to three; Maryland in
1810, to four; New Hampshire in 1812, to two and Ohio in 1815, to two. Each of these states
built state penitentiaries. A few states went the opposite direction. Rhode Island restored the
death penalty for rape and arson; Massachusetts, New Jersey, and Connecticut raised death
crimes from six to ten, including sodomy, maiming, robbery, and forgery. Many southern
states made more crimes capital, especially for slaves.

The first great reform era occurred between 1833-1853. Public executions were attacked as
cruel. Sometimes tens of thousands of eager viewers would show up to view hangings; local
merchants would sell souvenirs and alcohol. Fighting and pushing would often break out as
people jockeyed for the best view of the hanging or the corpse! Onlookers often cursed the
widow or the victim and would try to tear down the scaffold or the rope for keepsakes.
Violence and drunkenness often ruled towns far into the night after "justice had been served."
Many states enacted laws providing private hangings. Rhode Island (1833), Pennsylvania
(1834), New York (1835), Massachusetts (1835), and New Jersey (1835) all abolished public
hangings. By 1849, fifteen states were holding private hangings. This move was opposed by
many death penalty abolitionists who thought public executions would eventually cause
people to cry out against execution itself. For example, in 1835, Maine enacted what was in
effect a moratorium on capital punishment after over ten thousand people who watched a
hanging had to be restrained by police after they became unruly and began fighting. All
felons sentenced to death would have to remain in prison at hard labor and could not be
executed until one year had elapsed and then only on the governor's order. No governor
ordered an execution under the "Maine Law" for twenty-seven years. Though many states
argued the merits of the death penalty, no state went as far as Maine. The most influential
reformers were the clergy. Ironically, the small but powerful group which opposed the
abolitionists were also clergy. They were, almost to a person, members of the Calvinist
clergy, especially the Congregationalists and Presbyterians who could be called the religious
establishment of the time. They were led by George Cheever.

Finally, in 1846, Michigan became the first state to abolish the death penalty (except for
treason against the state), mostly because it had no long tradition of capital punishment (there
had been no hanging since 1830, before statehood) and because frontier Michigan had few
established religious groups to oppose it as was the case in the east. In 1852, Rhode Island
abolished the death penalty led by Unitarians, Universalists, and especially Quakers. In the
same year, Massachusetts limited its death penalty to first-degree murder. In 1853, Wisconsin
abolished the death penalty after a gruesome execution in which the victim struggled for five
minutes at the end of the rope, and a full eighteen minutes passed before his heart finally quit.

During the last half of the century the death penalty abolition movement ground to a half,
with many members moving into the slavery abolition movement. At the same time, states
began to pass laws against mandatory death sentences. Legislators in eighteen states shifted
from mandatory to discretionary capital punishment by 1895, not to save lives, but to try to
increase convictions and executions of murderers. Still, abolitionists gained a few victories.
Maine abolished the death penalty, restored it, and then abolished it again between 1876-
1887. Iowa abolished the death penalty for six years. Kansas passed a "Maine Law" in 1872
which operated as de facto abolition.
Electrocution as a method of execution came onto the scene in an unlikely manner. Edison
Company with its DC (direct current) electrical systems began attacking Westinghouse
Company and its AC (alternating current) electrical systems as they were pressing for
nationwide electrification with alternating current. To show how dangerous AC could be,
Edison Company began public demonstrations by electrocuting animals. People reasoned that
if electricity could kill animals, it could kill people. In 1888, New York approved the
dismantling of its gallows and the building of the nation's first electric chair. It held its first
victim, William Kemmler, in 1890, and even though the first electrocution was clumsy at
best, other states soon followed the lead.

The Second Great Reform era was 1895-1917. In 1897, U.S. Congress passed a bill reducing
the number of federal death crimes. In 1907, Kansas took the "Maine Law" a step further and
abolished all death penalties. Between 1911 and 1917, eight more states abolished capital
punishment (Minnesota, North Dakota, South Dakota, Oregon, Arizona, Missouri and
Tennessee -- the latter in all cases but rape). Votes in other states came close to ending the
death penalty.

However, between 1917 and 1955, the death penalty abolition movement again slowed.
Washington, Arizona, and Oregon in 1919-20 reinstated the death penalty. In 1924, the first
execution by cyanide gas took place in Nevada, when Tong war gang murderer Gee Jon
became its first victim. The state wanted to secretly pump cyanide gas into Jon's cell at night
while he was asleep as a more humanitarian way of carrying out the penalty, but, technical
difficulties prohibited this and a special "gas chamber" was hastily built. Other concerns
developed when less "civilized" methods of execution failed. In 1930, Mrs. Eva Dugan
became the first female to be executed by Arizona. The execution was botched when the
hangman misjudged the drop and Mrs. Dugan's head was ripped from her body. More states
converted to electric chairs and gas chambers. During this period of time, abolitionist
organizations sprang up all across the country, but they had little effect. There were a number
of stormy protests against the execution of certain convicted felons (e.g., Julius and Ethel
Rosenberg), but little opposition against the death penalty itself. In fact, during the anti-
Communist period with all its fears and hysteria, Texas Governor Allan Shivers seriously
suggested that capital punishment be the penalty for membership in the Communist Party.

The movement against capital punishment revived again between 1955 and 1972.
England and Canada completed exhaustive studies which were largely critical of the death
penalty and these were widely circulated in the U.S. Death row criminals gave their own
moving accounts of capital punishment in books and film. Convicted kidnapper Caryl
Chessman published Cell 2455 Death Row and Trial by Ordeal. Barbara Graham's story was
utilized in book and film with I Want to Live! after her execution. Television shows were
broadcast on the death penalty. Hawaii and Alaska ended capital punishment in 1957, and
Delaware did so the next year. Controversy over the death penalty gripped the nation, forcing
politicians to take sides. Delaware restored the death penalty in 1961. Michigan abolished
capital punishment for treason in 1963. Voters in 1964 abolished the death penalty in Oregon.
In 1965 Iowa, New York, West Virginia, and Vermont ended the death penalty. New Mexico
abolished the death penalty in 1969.

Trying to end capital punishment state-by-state was difficult at best, so death penalty
abolitionists turned much of their efforts to the courts. They finally succeeded on June 29,
1972 in the case Furman v. Georgia. In nine separate opinions, but with a majority of 5-4, the
U.S. Supreme Court ruled that the way capital punishment laws were written, including
discriminatory sentencing guidelines, capital punishment was cruel and unusual and violated
the Eighth and Fourteenth Amendments. This effectively ended capital punishment in the
United States. Advocates of capital punishment began proposing new capital statutes which
they believed would end discrimination in capital sentencing, therefore satisfying a majority
of the Court. By early 1975, thirty states had again passed death penalty laws and nearly two
hundred prisoners were on death row. In Gregg v. Georgia (1976), the Supreme Court upheld
Georgia's newly passed death penalty and said that the death penalty was not always cruel
and unusual punishment. Death row executions could again begin. Another form of execution
was soon found. Oklahoma passed the first death by lethal injection law, based on economics
as much as humanitarian reasons. The old electric chair that had not been used in eleven years
would require expensive repairs. Estimates of over $200,000 were given to build a gas
chamber, while lethal injection would cost no more than ten to fifteen dollars "per event."
The controversy over the death penalty continues today. There is a strong movement against
lawlessness propelled by citizens' fears for their security. Politicians at the national and state
levels are taking the floor of legislatures and calling for more frequent death penalties, death
penalties penalty [sic] for more crimes, and longer prison sentences. Those opposing these
moves counter by arguing that tougher sentences do not slow crime and that crime is little or
no worse than in the past. In fact, FBI statistics show murders are now up. (For example 9.3
persons per 100,000 population were murdered in 1973 and 9.4 persons per 100,000 were
murdered in 1992). The battle lines are still drawn and the combat will probably always be
fought.

A number of important capital punishment decisions have been made by the Supreme Court.
The following is a list of the more important ones along with their legal citations:

Wilkerson v. Utah 99 U.S. 130 (1878) -- Court upheld execution by firing squad, but said that
other types of torture such as "drawing and quartering, embowelling alive, beheading, public
dissection, and burring alive and all other in the same line of...cruelty, are forbidden."

Weems v. U.S. 217 U.S. 349 (1910) -- Court held that what constitutes cruel and unusual
punishment had not been decided, but that it should not be confined to the "forms of evil" that
framers of the Bill of Rights had experienced. Therefore, "cruel and unusual" definitions are
subject to changing interpretations.

Louisiana ex rel. Francis v. Resweber 329 U.S. 459 (1947) -- On May 3, 1946, convicted
seventeen year old felon Willie Francis was placed in the electric chair and the switch was
thrown. Due to faulty equipment, he survived (even though he was severely shocked), was
removed from the chair and returned to his cell. A new death warrant was issued six days
later. The Court ruled 5-4 that it was not "cruel and unusual" to finish carrying out the
sentence since the state acted in good faith in the first attempt. "The cruelty against which the
Constitution protects a convicted man is cruelty inherent in the method of punishment," said
the Court, "not the necessary suffering involved in any method employed to extinguish life
humanely." He was then executed.

Tropp v. Dulles 356 U.S. 86 (1958) -- The Court Ruled that punishment would be considered
"cruel and unusual" if it was one of "tormenting severity," cruel in its excessiveness or
unusual in punishment "must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society."

Furman v. Georgia 408 U.S. 238 (1972) -- The Court looking at three cases struck down the
death penalty in many states and set up the standard that punishment would be considered
"cruel and unusual" if any of the following were present: 1) it was too severe for the crime; 2)
it was arbitrary (some get the punishment and others do not, without guidelines); 3) it offends
society's sense of justice; 4) it was not more effective than a less severe penalty.

Gregg v. Georgia 428 U.S. 153 (1976) -- [The] Court upheld Georgia's newly passed death
penalty and said that the death penalty was not always cruel and unusual punishment.

Tison v. Arizona 481 U.S. 137 (1987) -- [The] Court upheld Arizona's death penalty for major
participation in a felony with "reckless indifference to human life."
Thompson v. Oklahoma 108 S. Ct. 2687 (1987) -- The Court considered the question of
execution of minors under the age of 16 at the time of the murder. The victim was the
brother-in-law, who he accused of beating his sister. He and three others beat the victim, shot
him twice, cut his throat, chest, and abdomen, chained him to a concrete block and threw the
body into a river where it remained for four weeks. Each of the four participants were tried
separately and all were sentenced to death. In a 5-3 decision, four Justices ruled that
Thompson's death sentence was cruel and unusual. The fifth, O'Connor, concurred but noted
that a state must set a minimum age and held out the possibility that if a state lowers, by
statute, the minimum death penalty age below sixteen, she might support it. She stated,
"Although, I believe that a national consensus forbidding the execution of any person for a
crime committed before the age of 16 very likely does exist, I am reluctant to adopt this
conclusion as a matter of constitutional law without better evidence that [sic] we now
possess." States with no minimum age have rushed to specify a statute age.

Penry v. Lynaugh 492 U.S. [sic] (1989) -- [The] Court held that persons considered retarded,
but legally sane, could receive the death penalty. It was not cruel and unusual punishment
under the Eighth Amendment if jurors were given the opportunity to consider mitigating
circumstances. In this case, the defendant had the mental age of approximately a six-year old
child.

Ethical Viability
India seems to have varying views over the Ethical Viability of Death Penalty, vis--vis
Capital Punishment, these varying views can be explained or illustrated beyond words by this
famous saying
Everybody believes that capital punishment is wrong, but when they look at certain cases,
they're quick to say, 'Put them to death,' or scream 'capital punishment.'
Jeff Lindsay
The Law Commission have gone to great lengths to discuss on this topic, but no conclusive
answer has been found, whether or not it should be followed or no, thus, Im differentiating
the two sides of the research into two heads,
1) Against Capital Punishment or as I would like to sub-quote
As long as you have capital punishment there is no guarantee that innocent people won't be
put to death.
Paul Simon
And
2) For Capital Punishment or as I would like to sub-quote
Opponents of capital punishment argue that the state has no right to take a murderer's life.
Apparently, one fact that abolitionists forget or overlook is that the state is acting not only on
behalf of society, but also on behalf of the murdered person and the murdered person's family.
Dennis Prager

On January 21, 2014, the Supreme Court in the case of Shatrughan Chauhan v. Union of
India13, commuted death sentences of 15 death convicts to life sentence. The Court in this
cluster matter held that different supervening circumstances which had emerged subsequent
until the very end sentences were affirmed by the Supreme Court in the instances of these
about to be hanged convicts had abused their Fundamental Rights to the degree of making the
real execution of their sentences unjustifiable and extreme. Soon after this decision, the
Supreme Court in V. Sriharan v. Union of India14, at the end of the day summoned this strand
of death law to drive the capital punishments of all the three convicts in the Rajiv Gandhi
Assassination case. Likewise, in the Devender Pal Singh Bhullars case15, the Court
commuted the death sentence of the convict on the ground of inordinate delay in the
execution of sentence and mental health problems faced by the petitioner.

These Supreme Court decisions have turned away no less than 19 unavoidable
executions in all in the later past. It is to be borne personality a main priority that
India before it executed Ajmal Kasab and Afzal Guru a year ago, had an execution
free keep running for a time of 8 years. This accepted ban persuaded and contend that
India must consider the utility and attractive quality of holding this most outstanding
and outright punishment. These replacements influenced by the Supreme Court have
at the end of the day stimulated the open deliberation on capital punishment. At the
end of the day, individuals have started to conjecture about the deciding objective of
keeping a punishment, for example, capital punishment on the statute book. The issue
has additionally accumulated extensive level headed discussion in the standard media.

13(2014)3SCC1

14(2014)4SCC242

15 Navneet Kaur v. State (NCT Of Delhi), Curative Petition (Criminal) No. 88 of


2013 (Decided on March 31, 2014).
Publications in significant daily papers have been distributed requesting a re-take a
gander at capital punishment .

At this crossroads, a thorough study on the subject would be a valuable and healthy
commitment to the reason for open level headed discussion on this issue. Such a study
will likewise give an authoritative examination supported introduction to the
legislators and judges on this extremely antagonistic issue.

In the most recent decade capital punishment has turned into a topic of extreme center in the
Supreme Court. The Apex Court on different events has grappled with the divergent use of
law on capital punishment and established reasonableness ramifications of the same. A
deliberate study which would address the questions and worries of Courts furthermore shows
a global point of view on the issue is greatly required. The Court in some of these cases has
particularly asked for the Law Commission to embrace research for this sake .The Supreme
Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra16 has, in this regard,
observed:

112. We are also aware that on 18-12-2007, the United Nations General Assembly adopted
Resolution 62/149 calling upon countries that retain the death penalty to establish a
worldwide moratorium on executions with a view to abolishing the death penalty. India is,
however, one of the 59 nations that retain the death penalty.

Similarly, the Court in Shankar Kisanrao Khade v. State of Maharashtra 17 was also
concerned with another dimension of the issue of death penalty and rued lack of research on
the issue. The Court held:

148. It seems to me that though the courts have been applying the rarest of rare principle,
the executive has taken into consideration some factors not known to the courts for
converting a death sentence to imprisonment for life. It is imperative, in this regard, since we
are dealing with the lives of people (both the accused and the rape-murder victim) that the
courts lay down a jurisprudential basis for awarding the death penalty and when the
alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death
penalty and its execution should not become a matter of uncertainty nor should converting a
death sentence into imprisonment for life become a matter of chance.

16(2009)6SCC498

17(2013)5SCC546
149. It does prima facie appear that two important organs of the State, that is, the judiciary
and the executive are treating the life of convicts convicted of an offence punishable with
death with different standards. While the standard applied by the judiciary is that of the
rarest of rare principle (however subjective or Judge-centric it may be in its application), the
standard applied by the executive in granting commutation is not known. Therefore, it could
happen (and might well have happened) that in a given case the Sessions Judge, the High
Court and the Supreme Court are unanimous in their view in awarding the death penalty to a
convict, any other option being unquestionably foreclosed, but the executive has taken a
diametrically opposite opinion and has commuted the death penalty

Prior Position of the Law Commission on Death Penalty

1. 35th Report (1967)

In 1962, the Law Commission embraced a broad activity to consider the issue of cancelation
of the death penalty from the statute books. A reference to this impact was made to the Law
Commission when the third Lok Sabha wrangled on the determination moved by Shri
Raghunath Singh, Member, Lok Sabha for the annulment of the death penalty. The Law
Commission discharged its 35th report in 1967 prescribing maintenance of capital
punishment .

A number of the conclusions touched base at by the Law Commission depended on findings
on general components of social and social life as it existed then. Likewise, a percentage of
the pointers considered by the commission, for example, those on instruction, wrongdoing
rates et al have definitely changed in the last a large portion of a century. The accompanying
greatly cited perspective of the Law Commission, for case, is unmistakably established in the
social-political environment of the day and to that degree is extremely restricted by they way
it can be put to use in the present day setting:

Having regard, however, to the conditions in India, to the variety of 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.
The report additionally watched that the proposal that death penalty may be annulled for a
settled timeframe as an analysis was laden with the danger as between its abrogation and
reintroduction there could be a mediating period of brutality and reintroduction of the death
penalty might not have the sought impact of restoring lawfulness. It is to be noticed that India
experienced an execution free time of 8 years somewhere around 2004 and 2013. These years
when India did not see any execution could be considered as a characteristic investigation
which approaches a true ban. Amid this period, wrongdoing information from National Crime
Records Bureau does not pass on any specific spurts in wrongdoing rate. In any case, in the
meantime, we must remember that amid this period, capital punishments kept on being
honored or maintained by the Courts at the ordinary rate. To that degree, this period, if by any
means, must be considered as a ban of sorts just on the real executions and not on the use of
capital punishment by Courts and impact thereof on wrongdoing rates may must be
considered all things considered.

The 35th report of the Law Commission watched that the carefulness of the Court in the
matter of sentence to be recompensed in a capital case must be held and such watchfulness
was overall being practiced attractively and as per legal standards. The report watched that
(t)he considerations which weigh or should weigh with the court in awarding the lesser
punishment of imprisonment of life (in respect of offences for which the prescribed
punishment is death or imprisonment for life), cannot be codified. The circumstances which
should or should not be taken into account, and the circumstances which should be taken into
account along with other circumstances, as well as the circumstances which may, by
themselves, be sufficient, in the exercise of the discretion regarding sentence cannot be
exhaustively enumerated." The report watched that the activity of caution may rely on upon
nearby conditions, future advancements, and development of good feeling of the group,
condition of wrongdoing at a specific time or put and numerous other unforeseeable
components. It is correlated to take note of that the report of the Law Commission originated
before the historic point judgment in Bachan Singh v. Condition of Punjab which set out the
"rarest of uncommon" tenet and held that death penalty ought to just be honored in the rarest
of rare cases when the alternative option is unquestionably foreclosed. The Court held that
irritating and relieving circumstances identifying with the wrongdoing and criminal must say
something the psyche of the Court while sentencing in capital offenses.
Accordingly, there is a need to inspect anew the rules on capital sentencing in light of the
"rarest of uncommon" precept. Besides, the report of the law commission does not talk about
in point of interest the anxieties in regards to the self-assertive utilization of the Court's
attentiveness in capital sentencing. As of late, the Supreme Court has conceded that the topic
of capital punishment is not free from the subjective component and is some of the time
unduly affected by general sentiment. In this setting it is basic that a more profound study be
directed to highlight whether the procedure of recompensing capital sentence is laden with
subjectivity and impulse.

The Law Commission in its 35th Report likewise prescribed holding of segment 303 of the
Indian Penal Code, which accommodates obligatory capital punishment. The commission
took the accompanying perspective in such manner:

Section 303, Indian Penal Code, under which the sentence of death is mandatory for
an offence under the section, need not be amended by leaving the question of sentence
to the discretion of the Court, or by confining the operation of the section to cases
where the previous offence is an offence for which the offender could have been
sentenced to death.

It is to be noted that section 303 of the IPC was held to be unconstitutional by the Supreme
Court in Mithu v. State of Punjab18. The court held:

23. On a consideration of the various circumstances which we have mentioned in this


judgment, we are of the opinion that Section 303 of the Penal Code violates the
guarantee of equality contained in Article 14 as also the right conferred by Article 21
of the Constitution that no person shall be deprived of his life or personal liberty
except according to procedure established by law. The section was originally
conceived to discourage assaults by life convicts on the prison staff, but the legislature
chose language which far exceeded its intention.

Relying upon Mithu, the Supreme Court in State of Punjab v. Dalbir Singh, the Supreme
Court struck down section 27(3) of Arms Act, 1959 providing for mandatory death penalty.

18 (1983) 2 SCC 277


The commission in its report also examined the aspect of irrevocability of capital punishment
in the context of erroneous convictions and observed that the presence of constitutional and
statutory safeguards such as the prerogative power of mercy, the power of appeal and review
as well as legal assistance provided to capital convicts reflected the anxious concern of the
law to ensure that chances of error are kept to the minimum. While analyzing proposed
safeguards against erroneous convictions, the commission observed:

We hope, however, that such cases have not been many. After passing through the
sieve of judicial scrutiny under the provisions already set out, and the scrutiny applied
in proceedings for the exercise of prerogative of mercy, it should be difficult - we do
not say it would be impossible - for a case to retain elements of material falsehood. If,
in spite of such scrutiny, such elements survive, that only shows the need for keeping
the procedural and other provisions constantly under review. Elsewhere, in this
Report, we ourselves have raised and discussed the question of improvements in the
provisions relevant to safeguards against error. But, viewing the matter in its proper
perspective, we are not in a position to say that the possibility of error is an argument
which can totally displace the paramount need for a provision intended to protect
society.

This conclusion arrived at by commission pertains to pre-Bachan Singh era and even predates
the amendments made to the Code of Criminal Procedure in the year 1973. The Constitution
seat choice in Bachan Singh alongside the new statutory administration makes the fulfillment
recorded by the commission as sees the wellness of standards as existing in the prior
administration unimportant. In contemporary legal improvements, with decency standards
more stringent than any time in recent memory, the Supreme Court has in the most recent 5
years over and over communicated uneasiness about uneven use of capital punishment as
likewise unnatural birth cycles occasioned in capital punishment cases.

In 2009, the Supreme Court reported per incurium the law set down in Ravji nom de plume
Chandra v. State of Rajasthan which held that simply the qualities relating to wrongdoing, to
the shirking of the traits relating to the criminal were correlated for sentencing in a criminal
trial. In Bariyar, the Supreme Court held Ravji to be per-incuriam Bachan Singh dicta on the
beforehand expressed recommendation which set out that circumstances relating to both the
wrongdoing and criminal must be perceived. At the point when the judgment in Bariyar was
rendered, Ravji had starting now been executed and the proposal set down in the castigated
judgment had been followed in a couple of distinctive cases. The beforehand expressed cases
address the plentifulness of the present part of solicitations and power of study by Courts to
protect against wrong emotions. Two of the convicts sentenced to death putting reliance on
the censured judgment in Ravji couldn't make tracks in an opposite direction from the noose
notwithstanding the obtainment of kindness power as noted in the before report (see Part IV.
Legitimate Comments on Present Day Administration of Death Penalty in India for extra on
the unnatural conception cycle of value developing out of reliance on the faulty Ravji dicta)

Also, starting late, the Supreme Court drove the death penalty of fifteen convicts to life
confinement in a gathering matter of thirteen petitions on grounds of encroachment of their
key rights as a result of over the top deferral in movement of generosity power in picking
their thoughtfulness petitions and set down guidelines for action of tolerance power .
Substitution of their sentences as a consequence of encroachment of their key rights makes
one marvel whether the present power of mercy is an adequate insurance against mixed up
emotions. Against this foundation, there is a need to study and figure out the adequacy of
existing shields against inaccurate sentiments.

Further, the commission made a reference to the then winning astoundingly traditionalist
overall circumstance on cancellation of the death penalty. Starting now and into the
foreseeable future, the abolitionist advancement on the planet has encountered honest to
goodness change. It is to be seen that around the globe, more than 140 countries have
invalidated the death penalty and more than 20 unique countries however retentionists, have
not executed capital sentences in ten years. Also, there is furthermore a class of countries that
have invalidated the death penalty for ordinary infringement, for instance, slaughter and held
it for unprecedented wrongdoings, for instance, infringement under military law or under
astounding circumstances. The worldwide reduction of the death penalty as kind of control
began 1976 onwards much after the 35th report of the Law Commission of India on Capital
Punishment. The issues relating to capital sentencing and furthermore the no matter how you
look at it revocation world over resulting to the past report on capital punishment require
thought and ordered examination. It justifies saying here that death penalty was crossed out in
South Africa through a decision of the Constitutional Court by virtue of S v Makwanyane and
Another .

Also, a weighty part of the conclusions arrived at by the Law Commission in association with
debilitation, reprisal, profile of wrongdoing, systems of orders, diverse choices for the death
penalty et cetera are dated. These themes have seen intensive and altogether more careful
academic work starting now and into the foreseeable future and require new thought

187th Report (2003)

Despite the fact that the Law Commission displayed its 187th report on the restricted issue of

"Method of Execution of Death Sentence and Incidental Matters" in 2003 , the generous
inquiry of allure of capital punishment as a discipline was not a portion of the terms of this
report and the Law Commission as needs be did not express any perspective on this matter. In
the 35th report on the death penalty, the commission did not prescribe changing the method
of execution from hanging and watched that (p)rogress in the science of anesthetics and
further study of the various methods, as well as the experience gathered in other countries
and development and refinement of the existing methods, would perhaps, in future, furnish a
firm basis for conclusion on this controversial subject. This 187th report was taken up in
2003 suo motu by the commission remembering the innovative advances in the field of
science, medication and sedatives. Remembering the quantity of the years that have slipped
by since the commission last took up the subject of the death penalty, it is basic for the Law
Commission to consider these central inquiries identifying with capital punishment anew and
draw on the rich and as yet developing experimental, scholarly and legal sentiment on a
number of these subjects

Against the aforementioned setting, it is clear that the issue of capital punishment, its place in
a present day criminal equity framework, different options for the same and the socio-
legitimate expenses verifiable in holding the punishment need pressing examination. With
this go for brain, this exploration paper exhibits a review of the improvements in the field of
capital punishment.

Part III. Reach of Death Penalty Laws

1. Statutory Provisions

The Indian Penal Code, 1860 prescribes death penalty for a number of crimes. Some of the
offences punishable by sentence of death under the Indian Penal Code are treason (section
121), abetment of mutiny (section 132), perjury resulting in the conviction and death of an
innocent person (section 194), threatening or inducing any person to give false evidence
resulting in the conviction and death of an innocent person (section 195A), murder (section
302), kidnapping for ransom (section 364A) and dacoity with murder (section 396). Amongst
these offences, death penalty continues to be used most commonly for section 302.

Additionally, many other special legislations such as the Air Force Act, 1950, the Army Act,
1950, the Navy Act, 1950, Commission of Sati (Prevention) Act, 1987 [section 4(1)],
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [section 3(2)(i)],
Explosive Substances Act, 1908 [section 3(b)], Unlawful Activities Prevention Act, 1967
[section 16(1)] also provide for the death penalty.

2. Extending Death Penalty to Rape

In December 2012, ruthless group assault and lethal ambush bringing about the demise of a
23 year old restorative understudy in the capital city brought the issue of wild sexual
savagery confronted by ladies under extreme media spotlight and open look. The deplorable
posse assault case which came to be called as the Nirbhaya assault case, activated
unconstrained mass challenges in the city. The issue of ladies' wellbeing got long past due
unmistakable quality in media reports and TV discusses. The Government of India reacted to
this high decibel challenge and determined media battle by constituting a three part council
headed by previous Chief Justice of India, Justice J.S. Verma. Equity Leila Seth and Mr.
Gopal Subramanium, Senior Advocate were alternate individuals from the council. The
command of the board of trustees was to suggest corrections for snappier trial and upgraded
discipline for hoodlums submitting rape of amazing nature against ladies.

The panel presented its suggestions inside of a month of it being constituted. The advisory
group has following gotten general awards for the wide extent of its suggestions, which were
taken a shot at the premise of far reaching interviews with the common society and other
partners.

In appreciation of sentencing, the panel watched that disciplines for sexual offenses could be
classified into two classifications - (i) term sentences and (ii) life detainment. While
suggesting the insertion of a different procurement with improved discipline for irritated rape,
the advisory group noticed that in the larger interests of society, and having regard to the
current thinking in favour of abolition of the death penalty, and also to avoid the argument of
any sentencing arbitrariness, we are not inclined to recommend the death penalty. The
board of trustees further noticed that however assault was a shocking wrongdoing and a great
infringement of self, there were occasions where the casualty/survivor could lead a typical
existence with some backing from society and defeat the injury. The advisory group noticed
that (i)n other words, we do not say that such a situation is less morally depraved, but the
degree of injury to the person may be much less and does not warrant punishment with
death.

While thinking seriously about the procurements of the International Covenant on Civil and
Political Rights, the Universal Declaration of Human Rights, the Convention on the
privileges of youngster, Convention against torment and other remorseless, barbaric and
debasing treatment or discipline and other worldwide Conventions, the council noticed that
the cancelation of capital punishment and the decrease of number of offenses in statute books
which advise the death penalty are expressed to be a piece of global standard law. Watching
that around the world, more than 150 nations have annulled capital punishment or don't
rehearse capital punishment, the council observed the judgment of the United States Supreme
Court in Coker v. Georgia19 where the US Supreme Court struck down the sentence of death
for a convicted felon who had committed aggravated sexual assault holding that the sentence
of death for rape was disproportionate, violative of the 8th and 14th Amendments to the US
Constitution and was also barbaric and excessive. In its conclusion on capital punishment
for sexual offences, the committee held:

37.Thus, there is a strong case which is made out before us that in India in the
context of international law as well as the law as explained in the American Courts, it
would be a regressive step to introduce death penalty for rape even where such
punishment is restricted to the rarest of rare cases. It is also stated that there is
considerable evidence that the deterrent effect of death penalty on serious crimes is
actually a myth. According to the Working Group on Human Rights, the murder rate
has declined consistently in India over the last 20 years despite the slowdown in the
execution of death sentences since 1980. Hence we do take note of the argument that
introduction of death penalty for rape may not have a deterrent effect. However, we
have enhanced the punishment to mean the remainder of life.

19 433 US 584
It is also pertinent to note that the committee did not recommend death sentence for sexual
offences. The committee proposed life imprisonment for the remainder of the convict's
natural life as the punishment for repeat offenders.

Following the recommendations of the Verma Committee, the Government of India enacted
the amending Act on 02.04.2013. Amongst other provisions, the amendment has led to the
insertion of four new sections namely 354A, 354b, 354C and 354D to the already existing
section 354 of IPC which deals with assault or criminal force on a woman with intent to
outrage her modesty. The amendment has also enlarged the meaning of rape in section 375.
Furthermore, the amendment has introduced death penalty as a punishment in section 376E
for cases of repeat offences of rape. It is to be borne in mind that the Verma Committee
categorically recommended against the punishment of death for the offence of rape.

It is noteworthy that section 376E has already been taken recourse to by the Trial Court to
sentence three men to death in the Shakti Mills gang rape case in Mumbai

Part IV. Judicial Comments on Present Day Administration of Death Penalty in India

While considering the question of constitutionality of death sentence, the Supreme Court in
Bachan Singh, treated the penalty of death as belonging to a category of its own. But the
Court in Bachan Singh also took notice of the fact that death penalty as a punishment has
found mention in the Constitution in the section on mercy powers of the Governor and the
President of India. Further, the Court observed that section 354(3) of the Code of Criminal
Procedure, 1973 is part of due process framework on death penalty. In this regard, the Court
held the following:

209. There are numerous other circumstances justifying the passing of the lighter
sentence; as there are countervailing circumstances of aggravation. We cannot
obviously feed into a judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society. Nonetheless, it cannot be
over-emphasised that the scope and concept of mitigating factors in the area of death
penalty must receive a liberal and expansive construction by the courts in accord with
the sentencing policy writ large in Section 354(3). Judges should never be
bloodthirsty. Hanging of murderers has never been too good for them. Facts and
Figures, albeit incomplete, furnished by the Union of India, show that in the past,
courts have inflicted the extreme penalty with extreme infrequency a fact which
attests to the caution and compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It is, therefore,
imperative to voice the concern that courts, aided by the broad illustrative guide-
lines indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably foreclosed. (Emphasis
supplied)

Propounding of the rarest of rare standard as a rigorous test to be fulfilled in all cases
where the Courts award death sentence has in its heart the conception of death penalty as a
sentence that is unique in its absolute denouncement of life for a penal purpose. As part of
this characterization of death penalty standing in its own league, the Court devised one of the
most demanding and compelling doctrines in law of crimes as existing in this country.
Emergence of the rarest of rare dictum was very much the beginning of constitutional
regulation of death penalty in India.

In the last decade, the Supreme Court has revisited the theme of constitutional regulation of
death penalty multiple times. The comments made by the Supreme Court in this behalf
indicate a degree of anxiety felt by the Court in dealing with the issue of death penalty.

1. Inconsistency and arbitrariness in Death Penalty Sentencing

On multiple occasions, the Court has pointed that the rarest of rare dictum propounded in
Bachan Singh has been inconsistently applied by courts. In Bariyar, the Court in this behalf
has held that "there is no uniformity of precedents, to say the least. In most cases, the death
penalty has been affirmed or refused to be affirmed by us, without laying down any legal
principle."

The Court relied on the decision in Swamy Shraddananda (2)20, wherein the Court observed:

20 (2008) 13 SCC 767


51. The truth of the matter is that the question of death penalty is not free from the
subjective element and the confirmation of death sentence or its commutation by this
Court depends a good deal on the personal predilection of the Judges constituting the
Bench.

52. The inability of the criminal justice system to deal with all major crimes equally
effectively and the want of uniformity in the sentencing process by the Court lead to a
marked imbalance in the end results. On the one hand there appears a small band of
cases in which the murder convict is sent to the gallows on confirmation of his death
penalty by this Court and on the other hand there is a much wider area of cases in
which the offender committing murder of a similar or a far more revolting kind is
spared his life due to lack of consistency by the Court in giving punishments or worse
the offender is allowed to slip away unpunished on account of the deficiencies in the
criminal justice system. Thus the overall larger picture gets asymmetric and lopsided
and presents a poor reflection of the system of criminal administration of justice. This
situation is a matter of concern for this Court and needs to be remedied.

The Court further observed that both academics and the Court have previously noticed the
issue of subjectivity in death penalty. In this regard, the Court made a reference to a joint
report by Amnesty International and People's Union for Civil Liberties titled "Lethal
Lottery: The Death Penalty in India, A Study of Supreme Court Judgments in Death Penalty
Cases, 1950-2006"21. The Court further observed:

It can be safely said that the Bachan Singh [(1980) 2 SCC 684] threshold of the
rarest of rare cases has been most variedly and inconsistently applied by the various
High Courts as also this Court.

In Sangeet and Anr. v. State of Haryana 22, the Court observed that "it does appear that in
view of the inherent multitude of possibilities, the aggravating and mitigating circumstances
approach has not been effectively implemented." The Court observed:

21 The study is available at http://www.amnesty.org/en/library/info/ASA20/007/2008.


(Last visited on 14.05.2014)

22(2013)2SCC452
33. Therefore, in our respectful opinion, not only does the aggravating and
mitigating circumstances approach need a fresh look but the necessity of adopting
this approach also needs a fresh look in light of the conclusions in Bachan Singh
[(1980) 2 SCC 684]. It appears to us that even though Bachan Singh [(1980) 2 SCC
684] intended principled sentencing, sentencing has now really become Judge-
centric as highlighted in Swamy Shraddananda [(2008) 13 SCC 767 and Bariyar
[(2009) 6 SCC 498]. This aspect of the sentencing policy in Phase II as introduced
by the Constitution Bench in Bachan Singh [(1980) 2 SCC 684] seems to have
been lost in transition."

2. Constitutional Implications arising out of Arbitrariness in Death Penalty


Sentencing

The Court has also extensively commented on the fundamental rights implications arising out
of disparate application of the death penalty law. In Bariyar, the Court observed:

54. In Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767], the
Court notes that the awarding of sentence of death depends a good deal on the
personal predilection of the Judges constituting the Bench. This is a serious
admission on the part of this Court. Insofar as this aspect is considered, there is
inconsistency in how Bachan Singh [(1980) 2 SCC 684] has been implemented, as
Bachan Singh [(1980) 2 SCC 684] mandated principled sentencing and not judge-
centric sentencing. There are two sides of the debate. It is accepted that the rarest of
the rare case is to be determined in the facts and circumstance of a given case and
there is no hard-and-fast rule for that purpose. There are no strict guidelines. But a
sentencing procedure is suggested. This procedure is in the nature of safeguards and
has an overarching embrace of the rarest of rare dictum. Therefore, it is to be read
with Articles 21 and 14.

127. Frequent findings as to arbitrariness in sentencing under Section 302 may


violate the idea of equal protection clause implicit under Article 14 and may also fall
foul of the due process requirement under Article 21.

128. It is to be noted that we are not focusing on whether wide discretion to choose
between life imprisonment and death punishment under Section 302 is
constitutionally permissible or not. The subject-matter of inquiry is how discretion
under Section 302 may result in arbitrariness in actual sentencing. Section 302 as held
by Bachan Singh [(1980) 2 SCC 684] is not an example of law which is arbitrary on
its face but is an instance where law may have been arbitrarily administered.

130. Equal protection clause ingrained under Article 14 applies to the judicial
process at the sentencing stage. We share the Court's unease and sense of disquiet in
Swamy Shraddananda (2) case and agree that a capital sentencing system which
results in differential treatment of similarly situated capital convicts effectively
classifies similar convicts differently with respect to their right to life under Article
21. Therefore, an equal protection analysis of this problem is appropriate. In the
ultimate analysis, it serves as an alarm bell because if capital sentences cannot be
rationally distinguished from a significant number of cases where the result was a life
sentence, it is more than an acknowledgement of an imperfect sentencing system. In a
capital sentencing system if this happens with some frequency there is a lurking
conclusion as regards the capital sentencing system becoming constitutionally
arbitrary. We have to be, thus, mindful that the true import of rarest of rare doctrine
speaks of an extraordinary and exceptional case.

3. Miscarriage of Justice Occasioned in Death Penalty Cases

The Supreme Court, on more than one occasion, has also brought to light the miscarriage of
justice in death penalty cases. The Court in Bariyar has pointed out gross mis-application of
death penalty law in a host of cases, which have yielded in the award of death sentences
without following the stipulated test mandated in Bachan Singh.

The Supreme Court in Bariyar held the case in Ravji to be per-incuriam the constitution
bench decision in Bachan Singh. The Court in this behalf held:

61. The background analysis leading to the conclusion that the case belongs to the
rarest of rare category must conform to highest standards of judicial rigor and
thoroughness as the norm under analysis is an exceptionally narrow exception. A
conclusion as to the rarest of rare aspect with respect to a matter shall entail
identification of aggravating and mitigating circumstances relating both to the crime
and the criminal. It was in this context noted: (Bachan Singh case, SCC p. 738, para
161)

161. The expression special reasons in the context of this provision,


obviously means exceptional reasons founded on the exceptionally
grave circumstances of the particular case relating to the crime as well as
the criminal.(emphasis supplied)

62. Curiously, in Ravji v. State of Rajasthan this Court held that it is only
characteristics relating to crime, to the exclusion of the ones relating to criminal,
which are relevant to sentencing in criminal trial, stating: (SCC p. 187, para 24)

24. ... The crimes had been committed with utmost cruelty and brutality
without any provocation, in a calculated manner. It is the nature and
gravity of the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. The Court will
be failing in its duty if appropriate punishment is not awarded for a crime
which has been committed not only against the individual victim but also
against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and brutality with which
the crime has been perpetrated, the enormity of the crime warranting
public abhorrence and it should respond to the society's cry for justice
against the criminal.

63. We are not oblivious that Ravji case has been followed in at least six decisions of
this Court in which death punishment has been awarded in last nine years, but, in our
opinion, it was rendered per incuriam. Bachan Singh specifically noted the following
on this point: (SCC p. 739, para 163)

163. ... The present legislative policy discernible from Section 235(2)
read with Section 354(3) is that in fixing the degree of punishment or
making the choice of sentence for various offences, including one under
Section 302 of the Penal Code, the court should not confine its
consideration principally or merely to the circumstances connected with
the particular crime, but also give due consideration to the circumstances
of the criminal.

Further, the Court in Bariyar also pointed out 6 decisions of Supreme Court where the per-
incuriam reasoning propounded in Ravji.

Since Bariyar, the Supreme Court has admitted on multiple occasions that Ravji has been
rendered per-incurium Bachan Singh. The Court in Dilip Tiwari v. State of Mahrashtra23,
(para 67-68), Rajesh Kumar v. State24, (paras 66-70), Sangeet v. State of Haryana25, (para
37), Mohinder v. State of Punjab26, (para 37.3) observed that binding reliance on Ravji has
led to deeply flawed sentencing by Courts. In these cases not even a single mitigating
circumstance has been considered by the Court and only aggravating aspects of the have been
given any emphasis which is in clear violation to the Constitution bench decision in Bachan
Singh.

It also bears mention that 14 former judges addressed an appeal to the President of India to
seek his urgent intervention to commute the death sentences of these 13 convicts who have
been sentenced to death on account of reliance on the per-incurium precedent of Ravji.27 In
this letter, it was also pointed out that two prisoners who had been wrongly sentenced to
death, Ravji Rao and Surja Ram (both from Rajasthan), had already been executed on May 4,
1996, and April 7, 1997, respectively, pursuant to the flawed judgments. The appeal letter
called these as constituting the gravest known miscarriages of justice in the history of crime
and punishment in independent India.

4. Sentencing Bias in Brutal Crimes

23 (2010) 1 SCC 775

24 (2011) 13 SCC 706

25 (2013) 2 SCC 452

26 (2013) 3 SCC 294

27 V Venkatesan, A Case against the Death Penalty 29(17) Frontline (25 August7 September
2012) available at http://www.frontline.in/navigation/?
type=static&page=flonnet&rdurl=fl2917/stories/20120907291700400.htm. (Last visited on
14.05.2014)
In Om Prakash v. State of Haryana28, Thomas, J. deliberated on the apparent tension between
responding to cry of the society and meeting the Bachan Singh dictum of balancing the
mitigating and aggravating circumstances. The Court was of the view that the sentencing
Court is bound by Bachan Singh and not in specific terms to the incoherent and fluid
responses of society.

In Rajesh Kumar v. State through Govt. of NCT of Delhi29, the Court observed:

75. On the other hand, while considering the aggravating circumstances, the High
Court appears to have been substantially influenced with the brutality in the manner
of committing the crime. It is no doubt true that the murder was committed in this
case in a very brutal and inhuman fashion, but that alone cannot justify infliction of
death penalty. This is held in several decisions of this Court.

In Bariyar, the Court observed, that there is no consensus in the Court on the use of social
necessity as a sole justification in death punishment matters. The Court also observed:

2(E) Sentencing justifications in heinous crimes

71. It has been observed, generally and more specifically in the context of death
punishment, that sentencing is the biggest casualty in crimes of brutal and heinous
nature. Our capital sentencing jurisprudence is thin in the sense that there is very little
objective discussion on aggravating and mitigating circumstances. In most such cases,
courts have only been considering the brutality of crime index. There may be other
factors which may not have been recorded.

72. We must also point out, in this context, that there is no consensus in the Court on
the use of social necessity as a sole justification in death punishment matters. The test
which emanates from Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] in clear
terms is that the courts must engage in an analysis of aggravating and mitigating
circumstances with an open mind, relating both to crime and the criminal, irrespective
of the gravity or nature of crime under consideration. A dispassionate analysis, on the

28 (1999) 3 SCC 19

29 (2011) 13 SCC 706


aforementioned counts, is a must. The courts while adjudging on life and death must
ensure that rigour and fairness are given primacy over sentiments and emotions.

76. In Om Prakash v. State of Haryana [(1999) 3 SCC 19 : 1999 SCC (Cri) 334] K.T.
Thomas, J. deliberated on the apparent tension between responding to cry of the
society and meeting the Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580]
dictum of balancing the mitigating and aggravating circumstances.

5. Emergence of Alternate Punishment to Capital Sentencing

It is also to be noted that in the last few years, Supreme Court has entrenched the punishment
of full life or life sentence of determinate number of years as a response to challenges
presented in death cases. The Supreme Court speaking through a three-judge bench decision
in Swamy Shraddhanand (2) laid the foundation of this emerging penal option in following
terms:

92. The matter may be looked at from a slightly different angle. The issue of
sentencing has two aspects. A sentence may be excessive and unduly harsh or it may
be highly disproportionately inadequate. When an appellant comes to this Court
carrying a death sentence awarded by the trial court and confirmed by the High Court,
this Court may find, as in the present appeal, that the case just falls short of the rarest
of the rare category and may feel somewhat reluctant in endorsing the death sentence.
But at the same time, having regard to the nature of the crime, the Court may strongly
feel that a sentence of life imprisonment subject to remission normally works out to a
term of 14 years would be grossly disproportionate and inadequate. What then should
the Court do? If the Court's option is limited only to two punishments, one a sentence
of imprisonment, for all intents and purposes, of not more than 14 years and the other
death, the Court may feel tempted and find itself nudged into endorsing the death
penalty. Such a course would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment
and death. It needs to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the sentence of 14 years'
imprisonment would amount to no punishment at all.

93. Further, the formalisation of a special category of sentence, though for an


extremely few number of cases, shall have the great advantage of having the death
penalty on the statute book but to actually use it as little as possible, really in the
rarest of rare cases. This would only be a reassertion of the Constitution Bench
decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC
898] besides being in accord with the modern trends in penology.

The observations in Swamy Shraddhanand (2) have been followed by the Court in a
multitude of cases such as Haru Ghosh v. State of W.B. 30, State of U.P. v. Sanjay Kumar 31,
Sebastian v. State of Kerala32, Gurvail Singh v. State of Punjab33 where full life or sentence of
determinate number of years has been awarded as opposed to death penalty.

6. Uneven Application of Death Sentence against the Marginalized

In Bachan Singh, while the constitutionality of death penalty was upheld, Justice Bhagwati in
his dissenting opinion observed:

81. There is also one other characteristic of death penalty that is revealed by a study
of the decided cases and it is that death sentence has a certain class complexion or
class bias inasmuch as it is largely the poor and the downtrodden who are the victims
of this extreme penalty. We would hardly find a rich or affluent person going to the
gallows. Capital punishment, as pointed out by Warden Duffy is a privilege of the
poor. Justice Douglas also observed in a famous death penalty case, Former
Attorney Pamsey Clark has said: it is the poor, the sick, the ignorant, the powerless
and the hated who are executed. So also Governor Disalle of Ohio State speaking
from his personal experience with the death penalty said:

30 (2009) 15 SCC 551

31 (2012) 8 SCC 537

32 (2010) 1 SCC 58

33 (2013) 2 SCC 713


During my experience as Governor of Ohio, I found the men in death row had
one thing in common; they were penniless. There were other common
denominators, low mental capacity, little or no education, few friends, broken
homes but the fact that they had no money was a principal factor in their being
condemned to death. . . .

The same point was stressed by Krishna Iyer, J. in Rajendra Prasad case [(1979) 3
SCC 646 : 1979 SCC (Cri) 749 : AIR 1979 SC 916 : 1979 Cri LJ 792] with his usual
punch and vigour and in hard hitting language distinctive of his inimitable style:

. . . Who, by and large, are the men whom the gallows swallow? The white-
collar criminals and the corporate criminals whose wilful economic and
environmental crimes inflict mass deaths or who hire assassins and murder by
remote control? Rarely. With a few exceptions, they hardly fear the halter. The
feuding villager, heady with country liquor, the striking workers desperate with
defeat, the political dissenter and sacrificing liberator intent on changing the
social order from satanic misrule, the waifs and strays whom society has
hardened by neglect into street toughs, or the poor householder husband or
wife driven by dire necessity or burst of tantrums it is this person who is
the morning meal of the macabre executioner. (SCC pp. 674-75, para 72)

Historically speaking, capital sentence perhaps has a class bias and colour bar, even as
criminal law barks at both but bites the proletariat to defend the proprietariat a reason
which, incidentally, explains why corporate criminals including top executives who,
by subtle processes, account for slow or sudden killing of large members by
adulteration, smuggling, cornering, pollution and other invisible operations, are not on
the wanted list and their offending operations which directly derive profit from mafia
and white-collar crimes are not visited with death penalty, while relatively lesser
delinquencies have, in statutory and forensic rhetoric, deserved the extreme penalty.
(SCC p. 675, para 75)

There can be no doubt that death penalty in its actual operation is discriminatory, for it
strikes mostly against the poor and deprived sections of the community and the rich
and the affluent usually escape from its clutches. This circumstance also adds to the
arbitrary and capricious nature of the death penalty and renders it unconstitutional as
being violative of Articles 14 and 21.

Subsequently, this sentiment was echoed in Mohd. Farooq Abdul Gafur and Anr. v. State of
Maharashtra34, wherein the Court stated:

169...The situation is accentuated due to the inherent imperfections of the system in


terms of delays, mounting cost of litigation in High Courts and apex court, legal aid
and access to courts and inarticulate information on socio-economic and
criminological context of crimes. In such a context, some of the leading commentators
on death penalty hold the view that it is invariably the marginalized and destitute who
suffer the extreme penalty ultimately.

Moreover, a joint report prepared by Amnesty International India and People's Union for
Civil Liberties (Tamil Nadu and Puducherry) in 2008 titled "Lethal Lottery: The Death
Penalty in India" has also highlighted the disproportionate use of death penalty against
disadvantaged groups. The report observed:

The arbitrariness is fatal, but it is also selective and discriminatory. The randomness
of the lethal lottery that is the death penalty in India is perhaps not so random. It goes
without saying that the less wealth and influence a person has, the more likely they
are to be sentenced to death. This is implicit in the concerns expressed in Part II of
this report about access to effective legal representation (Section 7.1) as well as about
pre-trial investigations and collection of evidence (Section 6.1.1). The Supreme Court
itself has acknowledged the class bias in death sentences.

7. Arbitrary Exercise of Mercy Powers leading to Violation of Fundamental Rights


of Death Row Prisoners

In Shatrughan Chauhan, while commuting the death sentence of fifteen convicts due to
inordinate delay in disposal of their mercy petition, the Court observed:

34 (2010) 14 SCC 641


244. It is well established that exercising of power under Articles 72/161 by the
President or the Governor is a constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitution Framers did not stipulate any
outer time-limit for disposing of the mercy petitions under the said Articles, which
means it should be decided within reasonable time. However, when the delay caused
in disposing of the mercy petitions is seen to be unreasonable, unexplained and
exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek
for mercy under Articles 72/161 of the Constitution is a constitutional right and not at
the discretion or whims of the executive. Every constitutional duty must be fulfilled
with due care and diligence, otherwise judicial interference is the command of the
Constitution for upholding its values.

While awarding relief to the petitioners, the Supreme Court relied upon a long line of cases
where the Supreme Court has recognized that inordinate delay in disposal of mercy petitions
by the Governor or the President violate Article 21 rights of the death row prisoners which in
turn makes him entitled for the relief of commutation of death sentence to life imprisonment.
The Supreme Court in Sher Singh and Others v State of Punjab35 held that Article 21 rights
inhere in a person so long as he lives and that they are relevant and applicable at all stages of
the judicial process: trial, sentence and execution of the sentence. The Court has held that in
such cases, if the delay is shown to be excessive and unjustified in the facts of the case,
execution of the death sentence would amount to harsh and inhuman punishment violating
Art. 21, and the Court should commute the death sentence. Further in Smt. Triveniben v State
of Gujarat36, a Constitutional Bench of the Supreme Court in a categorical ruling held as
follows:

Undue long delay in execution of the sentence of death will entitle the condemned person to
approach this Court under Article 32 but this Court will only examine the nature of delay
caused and circumstances that ensued after sentence was finally confirmed by the judicial
process and will have no jurisdiction to reopen the conclusions reached by the court while
finally maintaining the sentence of death. This Court, however, may consider the question of
inordinate delay in the light of all circumstances of the case to decide whether the execution

35 (1983) 2 SCC 344

36 (1989) 1 SCC 678


of sentence should be carried out or should be altered into imprisonment for life. No fixed
period of delay could be held to make the sentence of death inexecutable and to this extent
the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to
that extent stands overruled.

Invoking, this unique branch of death penalty law, the Supreme Court has in earlier cases too
have stopped the executions on account of delayed rejection of mercy petitions by the
executive authorities. In Mahendra Nath Das v. Union of India 37, Madhu Mehta v. Union of
India38, K.P. Mohammed v. State of Kerala39, Shivaji Jaysingh Babar v. State of
Maharashtra40, Daya Singh v. Union of India41, and Javed Ahmed Abdul Hamid Pawala v.
State of Maharashtra42, the Supreme Court prohibited the executive authorities from
executing the death row prisoners.

Part V. State of Present Research on Death Penalty

There has been a woeful lack of research on the issue of death penalty in India. The state of
research on the application of death penalty law by the judiciary is so inadequate that chances
of an informed and rigorous policy analysis on this issue are seriously impeded. A
constitutional challenge if and when taken up by the Supreme Court or a legislative change in
the law will be ill served in the present environment of lack of study on the issue. Some of the
important studies, which have ventured to assess the death penalty environment in India, are
flagged below for information.

In a pre-Bachan Singh empirical paper authored by Anthony Blackshield, the issue of


arbitrariness in award of death sentences was explored. The author showed through a study of
37 (2013) 6 SCC 253

38 1989) SCC (Cri) 705

39 1984 Supp (1) SCC 684

40 (1991) 4 SCC 375

41 (1991) 3 SCC 61

42 (1985) 1 SCC 275


70 judgments of the Supreme Court between 1972 and 1976 that the award of death penalty
in a particular case is more a function of the views of the judge concerned on the subject
rather than the state of law or the facts of the case.43

Another landmark study titled as Lethal Lottery: The Death Penalty in India brought out
jointly by Amnesty International, India and the Peoples Union for Civil Liberties charted the
gaps and weaknesses in the administration of death penalty in India since 1950. The report in
its analysis of Supreme Court decisions on death penalty recorded that the death penalty in
India has been an arbitrary, imprecise and abusive means of dealing with crime and
criminals. This report has been referred to by the Supreme Court in Bariyar, Mohd. Farooq
Abdul Gafur, and Swamy Shraddananda (2).

A recent study which was commissioned by the American Law Institute (ALI) has concluded
that the defects and unfairness inherent in the American death penalty system are so
intractable and intrinsic to its structural design that its reform is unachievable. 44 The Steiker
Committee report as it came to be called has made the ALI withdraw the stipulation on
capital punishment from its Model Penal Code.

The Model Penal Code stipulation on death penalty which was incorporated in 1962 was a
significant peg of the US Supreme Court decision in Gregg v. Georgia45, wherein the Court
reaffirmed the constitutionality of the death penalty in the United States. The US Supreme
Court cited the Model Penal Code provision to illustrate that there are ways to achieve
constitutionally secure death sentences. The Steiker Committee notes the failure of the reform
initiatives in relation to administration of the death penalty in following terms:

The foregoing review of the unsuccessful efforts to constitutionally regulate the


death penalty, the difficulties that continue to undermine its administration, and the
structural and institutional obstacles to curing those ills forms the basis of our

43 A R Blackshield, Capital Punishment in India (1979) 21(2) Journal of the Indian Law
Institute 137.

44 Report of the Council to the Membership of the American Law Institute on the
matter of the Death Penalty, 4 (2009), available at
http://www.ali.org/doc/Capitar/o20Punishment_web.pdf. (Last visited on
14.05.2014)

45 428 U.S. 153 (1976)


recommendation to the Institute. The longstanding recognition of these underlying
defects in the capital justice process, the inability of extensive constitutional
regulation to redress those defects, and the immense structural barriers to meaningful
improvement all counsel strongly against the Institutes undertaking a law reform
project on capital punishment, either in the form of a new draft of 210.6 or a more
extensive set of proposals. Rather, these conditions strongly suggest that the Institute
recognize that the preconditions for an adequately administered regime of capital
punishment do not currently exist and cannot reasonably be expected to be achieved.

It is to be noted that aspects of the rarest of rare doctrine as propounded in Bachan Singh
were also inspired by the ALI Model Penal Code provision on death penalty. Now that the
Model Penal Code provision itself stands withdrawn, it is imperative that a similar study to
assess the fitness of Indian system of death penalty against the constitutional standards is also
undertaken. Present attempt by the Law Commission to study the constitutional regulation of
death penalty amongst other related issues, to that extent, will fill an important academic void
on this issue.
Famous Death-Row Inmates and Hangings and its effect on
Society ( Landmark Case)
Landmark Death Penalty case: Santosh Bariyar v State of Maharashtra
Update: I have been asked why the case is a landmark. I realise now that in my excitement, I
failed to highlight the implications of the case properly. There is hardly any DP case where
seperate evidence is led on sentencing, and never any evidence on rehabilitation. If the ruling
in this case is followed sincerely, DP is all but dead. Prosecution will have the
insurmountable task of proving not just guilt, but additionally (on additional evidence at
separate sentence hearing) that the accused is beyond rehabilitation--something that will be
possible only in extremely rare cases where the accused accepts the crime, shows no remorse
and threatens to do it again. At present, in most DP cases, no additional evidence is led at the
sentencing stage, and the evidence hardly relates to the possibility of rehabilitation. On this
ruling, most if not all the post-Bachan Singh cases where DP was imposed were wrongly
decided (by Bachan Singh standards as understood in Bariyar).

The Supreme Court delivered the judgment in Santosh Bariyar v State of Maharashtra on the
13th of May 2009. This is sure to become a landmark case on the issue of death penalty, and a
natural follow up on Justice Ganguly's recent dissent in Rameshbhai Rathod v State of
Gujarat (see this previous post for a discussion on that case). For all our previous posts on
death penalty, readers may want to see this.

In Bariyar, the judgment of the Court is delivered by Justice Sinha. In a learned opinion,
Justice Sinha revisits Bachan Singh as the defining law on the subject. True to his style, the
judgment is a progressive one, and justified by a rigorous reading of precedents and
constitutional norms. It is rare to see a sound legal judgment, which does not rely upon
anecdotal evidence and platitudes. Given the workload of Supreme Cour judges, the rarity is
understandable, yet these rare judgments are commendable.

Justice Sinha holds that the first important value underpinning Bachan Singh is that of
individualised sentencing. Therefore, mandatory death penalty is unconstitutional (citing
Mithu v State of Punjab). He recalls the Court's words in Bachan Singh: 'Judges should never
be bloodthirsty.' The comment is important, in light of Justice Pasayat's approach to death
penalty (although Justice Sinha's judgment does not explicitly mention the latter). Yet Sinha's
insistence that public opinion is irrelevant to the judicial role in sentencing is a timely
reminder that as counter-majoritarian institutions, courts should stop playing to the gallery:
'Even if presume that the general populace favours a liberal DP policy, although there is no
evidence to this effect, we can not take note of it....The constitutional role of the judiciary
also mandates taking a perspective on individual rights at a higher pedestal than majoritarian
aspirations. To that extent we play a countermajoritarian role. And this part of debate is not
only relevant in the annals of judicial review, but also to criminal jurisprudence.'

The second fundamental ratio in Bachan Singh that the Court emphasises upon is perhaps
most crucial, and will have far-reaching consequences. The Court says that Bachan Singh
requires a mandatory pre-sentence hearing stage where evidence on setencing must
specifically be adduced. Further, it says that the evidence must not only relate to the crime,
but also the criminal, including her socio-economic background. Finally, the prosecution
must show on evidence that the alternative option is unquestionably foreclosed. In other
words, the prosecution must show that rehabilitation is an impossibility. This will be possible
in rarest of rare cases, indeed. The relevant portions of the opinion are worth quoting at
length:

It is accepted that rarest of rare case is to be determined in the facts and circumstance of a
given case and there is no hard and fast rule for that purpose. There are no strict guidelines.
But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has
an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and
14.

Pre-sentence Hearing and Special Reasons

Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a
full fledged bifurcated hearing and recording of special reasons if the court inclines to
award death penalty. In the specific backdrop of sentencing in capital punishment, and that
the matter attracts constitutional prescription in full force, it is incumbent on the sentencing
court to oversee comprehensive compliance to both the provisions. A scrupulous compliance
of both provisions is necessary such that an informed selection of sentence could be based on
the information collected and collated at this stage. Please see Santa Singh v. State of Punjab,
[AIR 1956 SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341], Allaudin
Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State of Tamil Nadu, [( 1981 ) 3
SCC 11], Jumman Khan v. State of U.P, [(1991)1SCC752], Anshad and Ors. v. State of
Karnataka, [(1994)4SCC381] on this.

Nature of Information to be Collated at Pre-sentence Hearing

At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court
must play a proactive role to record all relevant information at his stage. Some of the
information relating to crime can be culled out from the phase prior to sentencing hearing.
This information would include aspects relating to the nature, motive and impact of crime,
culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance,
extent of reliance on circumstantial evidence or child witness plays an important role in the
sentencing analysis.

But what is sorely lacking, in most capital sentencing cases, is information relating to
characteristics and socio-economic background of the offender. This issue was also raised in
the 48th report of the Law Commission. Circumstances which may not have been pertinent in
conviction can also play an important role in the selection of sentence. Objective analysis of
the probability that the accused can be reformed and rehabilitated can be one such
illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne
out by Bachan Singh (supra) is relevant. The court held:

4) The probability that the accused can be reformed and rehabilitated. The State shall by
evidence prove that the accused does not satisfy the conditions 3 and 4 above.

In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating


circumstance relating to crime and the convict to be collected in the sentencing hearing.

...

Alternative Option is foreclosed

Another aspect of rarest of rare doctrine which needs serious consideration is interpretation of
latter part of the dictum that ought not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed. Bachan Singh (supra) suggested selection of
death punishment as the penalty of last resort when, alternative punishment of life
imprisonment will be futile and serves no purpose. death punishment, as will be discussed in
detail a little later, qualitatively stands on a very different footing from other types of
punishments. It is unique in its total irrevocability.

Incarceration, life or otherwise, potentially serves more than one sentencing aims.
Deterrence, incapacitation, rehabilitation and retribution all ends are capable to be furthered
in different degrees, by calibrating this punishment in light of the overarching penal policy.
But the same does not hold true for the death penalty. It is unique in its absolute rejection of
the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates
the being, therefore puts an end anything to do with the life. This is the big difference
between two punishments. Before imposing death penalty, therefore, it is imperative to
consider the same.

Rarest of rare dictum, as discussed above, hints at this difference between death punishment
and the alternative punishment of life imprisonment. The relevant question here would be to
determine whether life imprisonment as a punishment will be pointless and completely
devoid of reason in the facts and circumstances of the case? As discussed above, life
imprisonment can be said to be completely futile, only when the sentencing aim of
reformation can be said to be unachievable. Therefore, for satisfying the second exception to
the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict
is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be
done with rigor when the court focuses on the circumstances relating to the criminal, along
with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh
(supra) sets the bar very high by introduction of Rarest of rare doctrine.

To translate the principle in sentencing terms, firstly, it may be necessary to establish general
pool of rare capital cases. Once this general pool is established, a smaller pool of rare cases
may have to established to compare and arrive at a finding of Rarest of rare case.
And finally, the Court acknowledges that even if death penalty itself is constitutional, the
manner in which it is being administered currently may not be. After a survey of post-Bachan
Singh judgments, this is what it says:

...it is now clear that even the balance-sheet of aggravating and mitigating circumstances
approach invoked on a case by case basis has not worked sufficiently well so as to remove the
vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan
Singh threshold of rarest of rare cases has been most variedly and inconsistently applied by
the various High Courts as also this court. At this point we also wish to point out that the
uncertainty in the law of capital sentencing has special consequence as the matter relates to
death penalty the gravest penalty arriving out of the exercise of extraordinarily wide
sentencing discretion, which is irrevocable in nature. This extremely uneven application of
Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which
clearly falls foul of constitutional due process and equality principle. The situation is unviable
as legal discretion which is conferred on the executive or the judiciary is only sustainable in
law if there is any indication, either though law or precedent, as to the scope of the discretion
and the manner of its exercise. There should also be sufficient clarity having regard to the
legitimate aim of the measure in question. Constitution of India provides for safeguards to
give the individual adequate protection against arbitrary imposition of criminal punishment.

Although these questions are not under consideration and cannot be addressed here and now,
we cannot help but observe the global move away from the death penalty. Latest statistics
show that 138 nations have now abolished the death penalty in either law or practice (no
executions for 10 years). Our own neighbours, Nepal and Bhutan are part of these abolitionist
nations while others including Philippines and South Korea have also recently joined the
abolitionist group, in law and in practice respectively. We are also aware that on 18 December
2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries
that retain the death penalty to establish a worldwide moratorium on executions with a view
to abolishing the death penalty.

India is, however, one of the 59 nations that retain the death penalty. Credible research,
perhaps by the Law Commission of India or the National Human Rights Commission may
allow for an up to date and informed discussion and debate on the subject.

How often do judges in the Supreme Court call for evidence-led policy making, rather than
rely on their own instincting and anecdotal understanding of evidence? One only hopes that
the Law Commission and the NHRC live up to this demand.
Bibliography

1) Google.com
2) Wikihow.com
3) Yahooanswers.com
4) Firstpost.com
5) Grammarly.com

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