LAW ON DEATH PENALTY
A Constitution Bench of this Court in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] repelled the challenge of constitutionality to death penalty by laying down the framework law on this point. Bachan Singh (supra) serves as a watershed moment in the history of death penalty jurisprudence in India as it severed Indian judiciary's normative ambivalence on the subject.
It was pronounced after the new legislative policy (in form of section 354(3) of the Code of Criminal Procedure, 1973) came into force. The impact of this legislative change was variously interpreted by this court, and this disparity in interpretation triggered Bachan Singh (supra). One such case, which had laid down an interpretation of section 354(3) was Rajendra Prasad v. State of Uttar Pradesh [(1979) 3 SCC 646]. Bachan Singh court noted that death penalty is acknowledged in the constitution. Also the new sentencing procedures were held to be to be in the nature of safeguards and as a guidance sentencing. The sentencing procedure was taken to be orienting the death punishment towards application in very selective situations. On the aforementioned reasoning, the court upheld death punishment, substantively and procedurally.
There are three broad values emerging from Bachan Singh (supra):
1. INDIVIDUALIZED SENTENCING
For an effective compliance of sentencing procedure under section 354(3) and section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it will prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc. Bachan Singh (supra) also holds the same view. It was held in Bachan Singh (supra) that:
"173. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.
174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do."
The court while discussing Furman v. Georgia, 408 U.S. 238 (1972) in this regard held the following:
"192. It appears to us that in Gregg v. Georgia and the companion cases, the Supreme Court of U.S.A. was obliged to read down the requirements of Furman and to accept these broadly worded, loose- ended and not-all-inclusive `standards' because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable."
In this context, Saibanna v. State of Karnataka [(2005) 4 SCC 165] makes an interesting reading. The accused therein was a life convict. While on parole, he committed murder of his wife and daughter. This Court sentenced him to death on a reasoning, which effectively made death punishment mandatory for the category of offenders serving life sentence, opining:
"....A prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence could not be equated with any fixed term. (See Gopal Vinayak Godse vs. State of Maharashtra [(1961) 3 SCR 440]. If that be so, there could be no imposition of a second life term on the appellant before us as it would be a meaningless exercise.
18. In the teeth of Section 427(2) of the Code of Criminal Procedure, 1973 it is doubtful whether a person already undergoing sentence of imprisonment for life can be visited with another term of imprisonment for life to run consecutively with the previous one.
Mandatory death punishment (prescribed under section 303 of Indian Penal Code) was stuck down as unconstitutional by this court in Mithu v. State of Punjab [AIR 1983 SC 473]. This court observed: "...If the law provides a mandatory sentence of death as Section 303 of the Penal Code does, neither Section 235(2) nor Section 354(3) of the Code of Criminal Procedure can possibly come into play. If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence. The ratio of Bachan Singh, therefore, is that, death sentence is Constitutional if it is prescribed as an alternative sentence for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life."
Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with the majority opinion and observed:
"25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional." {See also Reyes v. R. [(2002) UKPC 11 : 12 BHRC 219], Hughes, R. v. (Saint Lucia) [(2002) UKPC 12], Fox v. The Queen (2002) 2 AC 284, Bowe v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v. The Attorney General (Grenada), (2007) UKPC 7} Saibanna (supra) to that extent is inconsistent with Mithu (supra) and Bachan Singh (supra).
2. THRESHOLD OF RAREST OF RARE
2(A). Sentencing Procedure
The analytical tangle relating to sentencing procedure deserves some attention here. Sentencing procedure deserves an articulate and judicial administration. In this regard, all courts are equally responsible. Sentencing process should be so complied with, that enough information is generated to objectively inform the selection of penalty. The selection of penalty must not require a judge to reflect on his/her personal perception of crime. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka [2008 (10) SCALE 669], 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. In so far as this aspect is considered, there is inconsistency in how Bachan Singh (supra) has been implemented, as Bachan Singh (supra) mandated principled sentencing and not judge centric sentencing. There are two sides of the debate. 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.
2(B) Nature of Content of Rarest of rare Dictum Rarest of rare dictum breathes life in "special reasons" under section 354(3). In this context, Bachan Singh (supra) laid down a fundamental threshold in the following terms:
"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." An analytical reading of this formulation would reveal it to be an authoritative negative precept. "Rarest of rare cases" is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of "when the alternative option is unquestionably foreclosed". Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
1. that the case belongs to the rarest of rare category
2. and the alternative option of life imprisonment will just not suffice in the facts of the case
Rarest of rare dictum serves as a guideline in enforcing section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects
death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to 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: "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"
Curiously in Ravji alias Ram Chandra v. State of Rajasthan, [(1996) 2 SCC 175] 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:
"...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 32
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"..."
We are not oblivious that this case has been followed in at least 6 decisions of this court in which death punishment has been awarded in last 9 years, but, in our opinion, it was rendered per incuriam. Bachan Singh (supra) specifically noted the following on this point: "...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" Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, [AIR2009SC56], Mohan Anna Chavan v. State of Maharashtra [(2008)11SCC113], Bantu v. The State of U.P., [(2008)11SCC113], Surja Ram v. State of Rajasthan, [(1996)6SCC271], Dayanidhi Bisoi v. State of Orissa, [(2003)9SCC310], State of U.P. v. Sattan @ Satyendra and Ors., [2009(3)SCALE394] are the decisions where Ravji Rao (supra) has been followed. It does not appear that this court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji Rao (supra) has not only been considered but also relied upon as authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent. 2(B) 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.
In Panchhi v. State of U.P., [(1998) 7 SCC 177], this Court also elucidates on "when the alternative option is foreclosed" benchmark in the following terms:
16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a three-Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (SCC p. 489, para 38) "(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
In Bachan Singh (supra), it was stated:
"206. Dr Chitale has suggested these mitigating factors:
"Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(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.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
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