Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

Guest Post: Abandoning In Limine SLP Dismissals in Death Sentence Cases: A Half Full / Half Empty Solution in Babasaheb Kamble

(I am pleased to host a guest post by Ms. Ankita Sarkar, an Associate with Project 39-A, National Law University Delhi)

The signs outside courtrooms at the Supreme Court of India, informing law interns that they cannot be accommodated on Mondays and Fridays, speaks volumes about the furore that are ‘Miscellaneous Days’. The astounding number of cases on board are often heard for less than a couple of minutes, and their fates sealed with either the word ‘notice’, or ‘dismissed’. 

Exercising its power under Article 136, the Supreme Court on every Monday and Friday decides countless ‘Special Leave Petitions’ by determining whether they deserve to be heard as appeals. The exercise of this power in the context of death sentence cases has long been a niggling constitutional question. On the one hand we have the Supreme Court’s profound recognition of the stakes involved through its observation in Mohammed Ajmal Mohammad Amir Kasab [(2012) 9 SCC 1] that in death penalty cases it has been “the time honoured practice of the Supreme Court to examine the material on records first-hand and come to its own conclusion, unbound by the findings of the Trial Court or the High Court”. 

This recognition sits rather uncomfortably with the fact that that the court has dismissed the SLPs in limine of 9 death row prisoners since 2004. However, this practice of the Supreme Court became constitutionally unviable after the judgment in Mohd. Arif [(2014) 9 SCC 737, later itself reviewed in 2016], whereby open court hearing of death sentence review petitions became mandatory and was recognised as part of Article 21 (review petitions are usually decided in chambers and open court hearings granted on discretion of the judges). 

The November 2018 judgment in Babasaheb Kamble [R.P. (Crl.) 388 of 2015, decided on 01.11.2018] [applied in Jitendra, R.P. (Crl.) 324 of 2015, decided on 01.11.2018] seeks to resolve this constitutional tension by ruling that in limine dismissals of death sentence cases will have to necessarily accompanied with reasons at least for the sentencing part. I argue that the terms of this resolution in Kamble are unsatisfactory to the extent that the distinction it draws between conviction and sentencing is untenable in law. 

Mohd Arif, and the Problem for In Limine Dismissals for Death Cases

To understand concerns with the terms of the resolution in Kamble, it is important to first understand the constitutional underpinnings of the judgment in Mohd. Arif. The Supreme Court aptly carved out death sentence cases as a distinct category altogether, recognising its irreversibility. Considering this distinction, the Court observed that even at the stage of review, cases involving the death penalty are such that the "Bar-Bench dialogue" by way of oral hearing becomes too precious a right to be parted with. Further, the Court opined that different judicially trained minds can apply different conditions while coming to the conclusion of awarding death sentence or otherwise. Such a procedure for the review of death sentence cases, the Supreme Court held, was in compliance with the principles of "due process of law". 

As a result of Mohd. Arif, the Court's power under Article 136 to dismiss death sentence SLPs in limine presented a constitutional conundrum. The right to have a death sentence review petition heard in open court meant that the petitioners would have to demonstrate the "error apparent on the face of record" (as required by the Supreme Court of India- Handbook on Practice and Procedure and Office Procedure). In limine dismissals then fell into question, as the determination of such error became impossible when the order did not record reasons reflecting the application of judicial mind. In effect, in limine dismissal of death sentence SLPs rendered Mohd. Arif pointless. 

But given the text of Article 136, it would be untenable to argue that the Supreme Court had to necessarily admit all death sentence SLPs. Article 134 already recognises the death sentence cases in which the Supreme Court must hear the appeal. The only way to reconcile this limitation and the mandate in Mohd. Arif was to make the argument that in limine dismissals of death sentence SLPs while being permissible had to necessarily be accompanied with reasons. Reasoned in limine dismissals would enable an effective open court review within the constitutional scheme. 

Kamble and its Discontents

Kamble seeks to put a lid on this question by holding that in limine dismissals must necessarily have reasons on the point of sentence. The focus on sentencing reasons is heavily reliant on a progressive constitutional viewpoint. Reliance is placed on Rajesh Kumar [(2011) 13 SCC 706], observing that the expression ‘hear the accused’ does not confine merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place material that have a bearing on the sentence. The Court took the view that while upholding the death sentence, it is the obligation of a judge to give reasons as to why the alternative of life imprisonment is unquestionably foreclosed. 

This determination is critical, especially when the decision is to be challenged in review for an ‘error apparent’. Such errors while determining the sentence could be many — reliance on cases declared per incuriam, consideration of irrelevant aggravating factors, non-consideration of mitigating factors, etc. In that context, it is imperative that the SLP dismissal record the reasons for confirmation of the death sentence. Kamble now ensures that there is a concrete basis for filing and arguing of the review petition on sentencing. 

However, limiting the requirement of reasons to sentencing alone, and not conviction, is at odds with the right recognised in Mohd. Arif. That decision held death sentence review petitions will be heard in open court without making a distinction between conviction and sentencing. Therefore, the concern with in limine dismissals prior to Kamble continues as regards convictions in death sentence cases. The purpose of re-appreciating the material on conviction also echoes the sentiment of the Supreme Court, often reiterated, that a majority of convicts belong to the weaker sections of the society. The poor are more often than not at the receiving end in access to justice and access to the remedies available — something evident from the recent SCLSC Report through Project Sahyog.  

The Supreme Court has been conscious of the need to agitate the claim of innocence in multiple stages, considering the nature of punishment imposed at the back of inadequate legal representation. The need for such multi-level checks is amply demonstrated by the Death Penalty India Report, which reported that between 2000-2015, of the 1,486 death sentences imposed by the trial courts, 29.8% (443 prisoners) were acquitted by the end of the judicial pyramid. Affording such checks acknowledges the possibility of different judicially trained minds appreciating evidence differently and affording the highest levels of constitutional protection before sentencing an individual to death. Acknowledging the high rate of reversals and the critical role of the Supreme Court in ensuring strict adherence to constitutional standards, the Law Commission in Report No. 262 also recommended doing away with in limine dismissals of death sentence SLPs. 

Conclusion

The judgment in Kamble is significant for its procedural tightening of the death penalty and is also a recognition of the sentencing woes that afflict death penalty jurisprudence. It seeks a procedural cure for this problem by ensuring that more judges apply their mind to the confirmation of the death sentence. Of course, the question before the court was one of procedure, but in the current position of death penalty jurisprudence suffers from certain fundamental sentencing questions that need judicial clarity and procedural fixes can only take us that far. The procedural tightening in Kamble is of great significance but it must also be accompanied with a full-fledged acknowledgment of the poor legal representation that death row prisoners receive. Mere acknowledgment is insufficient, and what we need is a robust judicial discourse on its consequences in terms of constitutional and criminal law. Unfortunately, the judgment in Kamble by drawing a distinction between conviction and sentencing does not fully embrace this systemic reality. 

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 dhruvamurarigandhi@nls.ac.in]

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. 

Inequality

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.