Sunday, March 29, 2015

Guest Post: In Search of a Policy for Judicially Inflicted Death

[I am pleased to present a guest post by Mr Dhruva  Gandhi, currently a second year student of the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore. The author can be contacted at]

The ‘Rarest of Rare’ doctrine laid down by the Supreme Court in Bachan Singh v. State of Punjab [1982 (1) SCALE 713] has become synonymous with the death penalty jurisprudence in India. According to this concept, circumstances relevant to both the crime (eg: brutality of the offence) and the criminal (eg: age/socio-economic background of the accused), must be considered to decide whether the sentence of death would be appropriate. Unfortunately, though, the vast discretion inherent in this doctrine led to some chaos and inconsistency. This was noted by the Supreme Court recently in Sangeet v. State of Haryana, [(2013) 2 SCC 452], where the Court called for urgent need to formulate a comprehensive Death Penalty policy. Some thoughts follow.

A New Policy
Perhaps taking up this mantle, a Division Bench of the Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra [(2013) 5 SCC 546] made certain observations on a new policy: 

In my considered view that the tests that we have to apply, while awarding death sentence, are 'crime test', 'criminal test' and the R-R Test and not 'balancing test'. To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is "society centric" and not 'Judge centric' that is, whether the society will approve the awarding of death sentence to certain types of crimes or not.”

In my opinion, this new policy is highly problematic, for it is per incuriam [i], perpetrates inequality [ii], and gives undue credence to public opinion [iii]. 

Per Incuriam?
In Bachan Singh, ‘Rarest of Rare’ was an overall analysis of the facts and circumstances (relevant to both the crime and the criminal) of the case at hand. On the other hand, in Shankar, ‘rarest of rare’ becomes a composite of factors (society’s abhorrence, indignation to certain crimes) to be considered in addition to the circumstances relevant to the crime and the criminal. It is because of this I think this decision falls foul of the Constitution Bench decision in Bachan Singh

Moreover, in Bachan Singh, the Court never held that the Death Penalty may be awarded only when a case involves no mitigating circumstances and when the society considers the crime to be abhorrent in nature. The effect of a postulation of this nature may, then, be that imposition of the Death Penalty may come to rest on the prevalence of a single mitigating circumstance irrespective of the nature of the aggravating circumstances. 

Consider the new policy in Shankar from this perspective: while someone convicted under Bachan Singh guidelines could avert Death after a cumulative assessment of all relevant circumstances, now the convict may escape Death based on a single factor as the young age of the accused or the possibility of reform. Moreover, I think it is important to note that disadvantage flows in the reverse direction as well. A convict sentenced as per Shankar may be awarded a Death Sentence on the basis of public opinion. Public Opinion, however, is of no relevance when a convict is sentenced as per Bachan Singh [more below]. Evidently, then, the application of more than one policy on Death Penalty concurrently leads to a perpetration of inequality.

Public Opinion
Perhaps the worst part is how the decision under Shankar depends greatly on popular notions of justice. Such a decision violates the constitutional mandate and the very notions of the Rule of Law. Gruesome and abhorrent crimes that attract the death penalty pose the toughest challenge to the tenacity of the Legal System. But the law cannot succumb to public opinion, denying to someone their fair bargain in a constitutional society simply because society wants blood. This, however, seems to have been sidelined in Shankar given that a “society-centric” ‘Rarest of Rare’ test allows for an influx of public opinion in the imposition of the Death Penalty. Therefore, we may say that the new policy is regressive in this aspect as well.

Course Correction?
In view of the above, then, I conclude that the pertinent question, namely, “Whether the Supreme Court has moved towards the creation of a comprehensive policy on the Death Penalty in India?” must be answered in the negative. To this extent, I believe that the decision of the Supreme Court last year in Mahesh Shinde v. State of Maharashtra [2014 (3) SCALE 96] must be welcomed. This decision, though has been questioned here, for implicitly over-ruling the observations in Shankar, Swamy Shraddhanda [(2008) 13 SCC 767] and Santosh Kumar Bariyar [(2009) 6 SCC 498] wherein the instances of departure by the Judiciary on earlier occasions from the law laid down by Bachan Singh are noted. Nonetheless, it is evident that a uniform and comprehensive policy on the death penalty receives fresh thought from both the Judiciary and the Legislature.

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