Guest Post - Circumstantial Evidence as a Mitigating Factor

(This is a guest post by Nidhi Agrawal)

Sec. 354(3) of the Code of Criminal Procedure in 1973 introduced the requirement of courts to record “special reasons: for their choice of the death penalty or life imprisonment or imprisonment for a period of time if the offence provided for alternative offences. Rajendra Prasad v. State of Uttar Pradesh provided the first interpretation of “Special Reasons” which led to the establishment of the ‘criminal test’. The criminal test required the court to only focus on the circumstances of the criminal and not the factors of the crime known as Crime Test. Bachan Singh v. State of Punjab conjoined the criminal test with the crime test to shift the focus to a form of principled sentencing peculiar to each unique case before the court which came to be known as the ‘Rarest of the Rare framework’. However, However, while propounding this, the majority in Bachan Singh was cognizant of the arbitrariness that individualized sentencing could have on the Death Penalty jurisprudence. 

Consequently, the focus was on principled sentencing where the determination of aggravating and mitigating circumstances would be not on the basis of a ‘pick and choose’ approach by the judges grounded in their predilections but on an “evolutionary process of judicial precedents”. This meant that the mitigating circumstances would be determined on an individual basis and followed subsequently by courts in their sentencing process in order to avoid arbitrariness in sentencing. The failure of this effort to maintain consistency can be seen through the court’s approach in Macchi Singh v. State of Punjab by creating a ‘balance-sheet approach’ where the criminal test had to be set off against the crime test laying down the framework for aggravating and mitigating circumstances. This ‘balance-sheet’ was explicitly rejected by Bachan Singh by discarding (iv)(a) proposition provided in Jagmohan Singh v. State of U.P., although now this approach forms the status quo. This has led to inevitable inconsistency due to irregular interpretation and application of the R-R framework in subsequent cases.

The analysis of mitigating circumstances, therefore, lies at the heart of the possibility of the reformation of the accused. It allows the judges to provide for more individualized and contextual sentencing rooted in the biological, physiological and historical understanding of the accused’s life. Mitigating Circumstances do not provide a justification for the crime, rather they help the judges assess the culpability of the accused through a nuanced understanding of their socio-economic circumstances and the implication of life experiences on an individual to understand the quantum of punishment to be meted out. Ediga Anamma v. State of A.P and Santa Singh v. State of Punjab have provided some penological justification in considering mitigating circumstances observing that the consideration of the factors individualises the punishment so that “the reformist component is as much operative as the deterrent element”. However, even Bachan Singh failed to provide for this underlying normative understanding of mitigation which allows the judges to arbitrarily hold sentencing factors to be indeterminate.

Whether Circumstantial evidence falls within the scope of Mitigating factors? 

There has been a conflicting jurisprudence with regard to the meting out of the death penalty in light of circumstantial evidence. There are mainly three lines of reasoning that the Indian Jurisprudence has followed: 

A. Circumstantial Evidence (+)

“Circumstantial Evidence (+)” allows for the substitution of the death penalty in the cases of Circumstantial Evidence when there are additional mitigating factors present which are advantageous to the accused. This can be strengthened by Justice Reddy’s dissent in the recent case Ravi v. State of Maharashtra (2019-3J) which highlights the inconsistencies present in the death penalty meted out in cases of circumstantial evidence. He relies on Bishnu Prasad Sinha v. State of Assam, where the court held that circumstantial evidence has to be coupled with other factors advantageous to the convict for subverting a death sentence. 

This means that circumstantial evidence in itself would not be enough as an overruling mitigating factor but there is a requirement for other mitigating factors to be present for subverting the death sentence. It is pertinent to note that this position of “Circumstantial Evidence+” is itself full of inconsistencies. This is because of the ‘pick-and-choose’ approach for the + variable factors that are analysed by the court. 

Although, a similar line of reasoning was adopted in Sebastian @ Chevithiyan v. State of Kerala (2009-2J). This case held that circumstantial evidence along with the young age of the accused served as relevant mitigating circumstances to substitute the death penalty for life imprisonment. There is no clarification with regards to whether the court has to analyse the mitigating circumstances themselves as affirmed in Bachan Singh or whether it is the defence counsel’s duty to present the court with the mitigating circumstances as was held recently in Kushwinder Singh. Therefore, Circumstantial Evidence + Mitigating Factors again depends on judicial discretion which has not been clarified. 

B. Circumstantial Evidence as a Mitigating Factor

The second line of reasoning allows for circumstantial evidence to play the role of a mitigating factor. There is a conflict in how this jurisprudence has evolved. The first line of cases analysed focuses on the use of circumstantial evidence to be a relevant mitigating factor, while the latter focuses on circumstantial evidence to be an overruling mitigating factor. The difference is that the former would be subjected to the “Balance-Test” while the latter would overrule the crime test completely. 

In Swamy Shraddananda v. State of Karnataka, Justice S. B. Sinha held that cases that rely on circumstantial evidence have a far greater likelihood of leading to wrongful convictions than cases grounded in more robust evidence [Para 87]. The court further warned that even 'seemingly foolproof' circumstantial evidence should not be considered so, and the presence of circumstantial evidence must remain an important factor in deciding whether a death penalty should be awarded or not. Appreciating the special 'irrevocable' nature of the death penalty, the court cautioned against solely relying on circumstantial evidence. 

The Court in Shankar Kisanrao Khade v. State of Maharashtra held circumstantial evidence alone to be a relevant mitigating factor to be considered and was affirmed by Swamy Shraddananda (2) v. State of Karnataka. In Sushil Sharma v. State (NCT of Delhi), the court relied on the use of circumstantial evidence in the sentencing as a factor in order to commute the death sentence to life imprisonment. The Court noted that the case rested largely on circumstantial evidence, which should not be used as the basis to impose the death penalty, regardless of the nature or brutality of the crime. 

The Court also noted the presence of other mitigating factors such as 'extreme emotional disturbance' and 'extreme poverty and low social status' in order to arrive at its decision to commute the death penalty. Similarly, in Mahesh Dhanaji Shinde v. State of Maharashtra, the court commuted the death penalty of the appellant to a life sentence because the case was based entirely on circumstantial evidence. In contrast to this reasoning, Aloke Nath Dutta and Ors. v. State of West Bengal, held that the death penalty should never be meted out in cases of circumstantial evidence. 

The Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra has also followed a similar position by substituting life imprisonment for the death penalty due to the presence of circumstantial evidence which relied on the testimony of an approver. Therefore, there still remains no clarification on whether circumstantial evidence plays a relevant role in the balancing of mitigating and aggravating circumstances due to the conflicting line of cases from Shankar Khade.

C. Circumstantial Evidence: The Sharad Birdhichand Sarda Test

The most recent and third line of reasoning allows for the death penalty to be given out in cases of circumstantial evidence by following two steps: (i) applying the Sharad Birdhichand Sarda test which laid down a four-prong test for holding an accused guilty in light of circumstantial evidence and (ii) balancing mitigating and aggravating factors. 

The Court in Shivaji v. State of Maharashtra held that circumstantial evidence had no role in the balancing of aggravating and mitigating circumstances and affirmed that the death sentence could be given out in cases with circumstantial evidence. Shivaji held that this would be possible when the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction. However, this would have nothing to do with the question of the death sentence. There would be a requirement of balancing the mitigating circumstances and the aggravating circumstances where the fact that the case rests on circumstantial evidence has no role to play. 

“If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect.” 

Similarly, in Sudam alias Rahul Kaniram Jadhav v. State of Maharashtra, the court held that the court was not precluded from pronouncing a death sentence merely because the cases relied on circumstantial evidence. This position was altered in Ashok Debbarma and subsequent cases, where a "higher standard" of the quality of evidence was deemed necessary in cases where the death penalty was passed. Interestingly, in Mohd. Manan v. State of Bihar, the use of circumstantial evidence due to its impeccable nature was considered sufficient to "tilt the balance of aggravating and mitigating factors" in favour of the petitioner.

This higher standard of scrutiny has been laid down as a four-prong test in the case of Sharad Birdhichand Sarda: 

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” 

(1) Consistency of the Hypothesis: The established facts must be consistent only with the guilt of the accused and must not be explainable by any other hypothesis except that the accused is guilty.

(2) Conclusive: The circumstances should be of a conclusive nature and tendency. 

(3) Exclusion: They should exclude every possible hypothesis except the one to be proved. 

(4) Chain of Linkages: There must be a chain of evidence which would not leave out any reasonable ground for the conclusion consistent with the accused’s innocence and must show that in all human probability the act must have been done by the accused.

This test was affirmed to be applicable to the cases of the death penalty with circumstantial evidence by Shatrughan Meshram v. State of Maharashtra. This is in conformity with the Kalu Khan and Dhananjay Chatterjee reasoning, which provides that while dealing with cases based on circumstantial evidence, for the imposition of a death sentence, higher or stricter standards must be insisted upon in matters concerning capital punishment.

Conclusion

Through this piece, I have attempted to chart out the conflicting jurisprudence revolving around the use of circumstantial evidence in the sentencing of the death penalty. I have analysed the three different types of reasoning that have been adopted by the court. The court either uses circumstantial evidence as an overruling mitigating factor, as one of the factors in the balancing test or of no relevance in the balancing with a higher scrutiny standard. The three lines of reasoning delineated above allow for judicial subjectivity which goes against the core of Article 21, a fair and reasonable procedure as laid down in Maneka Gandhi v. Union of India. There is a need for the court to adopt uniform reasoning which would allow for a fair and equitable procedure for sentencing in capital punishment cases.

Notes from History: On the Arms (Amendment) Act of 1988

Between 1985 and 1990, the deteriorating law and order situation in Punjab was an ever-present source of concern at the centre, becoming the source of various ordinances and statutes. One of these was the Arms (Amendment) Ordinance, passed on 27.05.1988, which sought to curb the use of unlicensed firearms (amongst other things) by raising the possible punishments for such activities. To have maximum deterrent effect, the Ordinance prescribed a mandatory death sentence where the use of unlicensed firearms or ammunition resulted in the death of any other person. 

There is only one catch here. In no uncertain terms, the Supreme Court had declared provisions carrying a mandatory death sentence unconstitutional five years prior to this Ordinance. This was not an unreported consent order, but by a reported decision of a Constitution Bench in a batch of petitions including Mithu v. State of Punjab [AIR 1983 SC 473 ("Mithu")]. For me, this makes the Arms (Amendment) Ordinance a unique piece of legislation, and its history worth sharing.

From Ordinance to Act

The Ordinance was promulgated on 27.05.1988, and before it could lapse the government, through the then Minister of State for Home Affairs Mr. P. Chidamabaram, moved a Bill in the Lok Sabha seeking to amend the Arms Act 1959 in line with the Ordinance. Introducing the Bill for discussion on 08.08.1988, [Page 300 onwards] he emphasised the "rising trend of violence and terrorism by extremists and anti-national elements in various parts of the country" as necessitating this Bill which also provided for capital punishment to achieve a "deterrent punishment for various offences". 

The provision which sought to introduce capital punishment, Section 27(3) of the Act, was criticised by some members on grounds of removing all elements of causation from criminal law. They argued that the offence created strict liability holding persons responsible for using illegal firearms which result in death, without there being any intention to cause death. In response, while closing the debate on 09.08.1988 [page 542 onwards], Mr. Chidambaram did not engage with this criticism, but justified the amendments as incorporated a measure of proportionality as it brought about a graded scheme where mere use of illegal arms attracted a less severe sentence than cases where such use resulted in death.  

Reading the debates, the absence of any reference to Mithu and the legality of a mandatory death sentence is galling. Remember, this was not an unreported order, but a reported judgment, which clearly indicated that Section 27(3) would be unconstitutional but which Parliament in its great wisdom merrily ignored. A reference to Mithu would have also advised Parliament about how the mystical deterrent effect it sought to achieve was a mirage and could not have guided its decision behind introducing the death sentence, let alone a mandatory death sentence. However, this was not to be. The Bill was passed by both Houses and the Arms (Amendment) Act received the President's signature on 01.09.1988 as Act No. 42 of 1988 [Page 439], with Section 27(3) carrying its mandatory death sentence. 

From Act to being Struck Down Striking

Around five years after the amendment was brought into force, on 11.04.1993 a CRPF Constable Dalbir Singh, posted at Amritsar, was brought by his Battalion Havaldar Major before the Deputy Commandant to be reprimanded. Dalbir Singh seemingly left the room after being reprimanded, but almost immediately thereafter bullets began raining down on the Deputy Commandant's room from outside. It was stated later that Dalbir Singh had been firing the rounds, and the situation was brought under control only after he was overpowered by two men. 

The Havaldar Major died from the bullet injuries he sustained, and a case under Sections 302 of the Penal Code and 27(3) of the Arms Act was lodged against Dalbir Singh. Being convicted by the Trial Court and sentenced to death in 1996, his conviction was overturned by the High Court in its order of July 2005 due to some glaring inconsistencies in the prosecution case. This order was then challenged by the State of Punjab before the Supreme Court, where special leave was granted in 2006 itself but the matter then went into cold storage for a number of years, only to suddenly come back to life in 2010. A different bench was convinced there was no reason to interfere with the acquittal, but it was taken with a submission by the accused that Section 27(3) deserved to be struck down as unconstitutional.

The matter came to be heard regularly thereafter. What exactly was argued is not recorded in the daily orders, but I wonder if counsels also raised the tale of Section 31-A of the Narcotic Drugs and Psychotropic Substances Act 1988, which came on the Statute Book a year later than Section 27(3) of the Arms Act. Section 31-A prescribed a mandatory death sentence for the repeat offenders in some cases, chasing that same mirage of deterrence and, again, clearly contrary to the holding in Mithu. Its scope was narrowed down in 2001, but nevertheless, it retained the clause with a mandatory death sentence. While Dalbir Singh's case was before the Supreme Court, petitions came to be filed before the Bombay High Court challenging Section 31-A of the NDPS Act, which were decided by the Court on 16.06.2011 in Indian Harm Reduction Network [2011 SCC OnLine Com 715]. Section 31-A was read down by the Court as not prescribing a mandatory death term (similar to how the Supreme Court had also read down another clause of the 1989 NDPS amendments, Section 32-A almost a decade prior), but it was not struck down, and in 2014 it came to be amended to statutorily remove for the mandatory nature of the death sentence.  

What is recorded, however, is that during the course of arguments the Union Government made a request for the Court to not decide the issue as it was actively reconsidering the legality of Section 27(3). It was even mentioned before the Court that the Home Minister—none other than the progenitor of the clause, Mr. P. Chidambaram—had sought to introduce the Arms (Amendment) Bill 2011, amending Section 27(3) with retrospective effect to remove the mandatory nature of the death sentence. This concession was not accepted by the Court, citing its oath to enforce the Constitution, and in State of Punjab v. Dalbir Singh [(2012) 3 SCC 346, decided on 01.02.2012] it struck down Section 27(3) of the Arms Act. 

It was not only  because of what Mithu had held four decades years ago, or that the global consensus around mandatory death sentence clauses had shifted over time, but also because of the unnervingly broad nature of the clause as well. Vindicating the stand of those who opposed the amendment, the Court held that prescribing a death sentence where 'use' of prohibited arms 'results' in death had cast the net far too broadly, and went contrary to Article 21 of the Constitution.

From Unconstitutionality to Revival

Section 27 was not removed from the Statute Book after Dalbir Singh. Despite the judgment, the Arms (Amendment) Bill continued to be considered, going first before a Standing Committee which in its report of March 2012 suggested sending the matter to the Law Commission (which did not author any report). It was only in 2019 (by a different government) that, much like Section 31-A of the NDPS Act, Section 27 of the Arms Act came to be amended to bring the provision at par with other clauses and a choice was given to courts to impose either life imprisonment or the death sentence. 

History repeated itself, though, as again Parliament proceeded with its agenda [page 204 onwards] merrily ignoring what the Court had held in Dalbir Singh, like it had done before with Mithu. Section 27(3) had not been declared unconstitutional merely because it prescribed a mandatory death sentence, but also because of the over-broad and vague language of the clause itself. Yet, no changes were made to adopt these concerns and narrowly tailor the statute. This time around, even those opposing the Bill stayed mute on this issue. 

No challenge appears to have been made to the validity of the amended clause yet. But surely, the findings of the Court in Dalbir Singh that Section 27(3) is too vague for criminalising the 'use' of firearms to 'result' in death, as this framing carries within it many scenarios where innocent persons may be wrongly prosecuted, will carry some heft before a court.

Conclusion — No Lessons Learnt?

Parliament acted with impunity in 1988 while first amending Section 27(3) of the Arms Act, which was not some anodyne issue but in respect of prescribing a mandatory death sentence. If the State of Punjab would have chosen not to challenge Dalbir Singh's acquittal in 2006, a patently unconstitutional law would have continued to prosecute who knows how many more people. Fortuity, in how the case came to be and then how a bench took interest in the plea of unconstitutionality, rather than deliberate course correction, brought down the amended Section 27(3) in 2012. Only for it to return in 2019 with cosmetic changes, once again in defiance of a judicial decision. It seems no lessons were learnt.

The story of Section 27(3) is much like that sordid tale of Section 66-A of the Information Technology Act living a glorious afterlife after being struck down by the Supreme Court in Shreya Singhal [(2015) 5 SCC 1]. But in some respects it is even worse. Section 66-A continues to be used despite being struck down, while the amended Section 27(3) was unconstitutional since its very inception. The issue of securing compliance is not only a fight between the different branches of government, but one which occurs intra branch as well. No clearer example can be found than the continuing saga of courts not complying with the guidelines set out by a Constitution Bench in Bachan Singh [AIR 1980 SC 898] and Machhi Singh [AIR 1983 SC 957] to consider mitigating circumstances while imposing a death sentence. As recently as on 20.05.2022, a Three Justices' Bench of the Supreme Court expressed its anguish at this state of affairs, passing fresh guidelines to ensure compliance with its own decisions.

To think of the numerous persons who spent time on death row due to a charge under Section 27(3) or due to improper compliance with Bachan Singh is a grim prospect, but it is necessary, and must bring us to have important conversations regarding accountability for such grave errors by the state. Sure, we should work towards removing opportunities for such lapses, but such instances of wilful blindness (or deliberate malice) cannot be excused with a shrug of the shoulders. After all, can there be a graver insult to the right to life than being prosecuted and punished by an avowedly unconstitutional process?

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 - Same Day Sentencing in Death Penalty Jurisprudence

(I am happy to host this Guest Post by Ms Nivedita Mukhija, an advocate practising in New Delhi)

Section 235 of the Code of Criminal Procedure [CrPC] states as follows:

235. Judgment of acquittal or conviction.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

This provision is an explicit recognition of the idea that the relevant considerations for sentencing are different from that for conviction/acquittal, and thus, sentencing should be treated as a separate phase in a trial. It has assumed considerable significance in death penalty jurisprudence, where lower courts often downplay the importance of hearing, in detail, all aggravating and mitigating factors awarding the death penalty, erroneously assuming that these factors have already been sketched out during the trial. Bachan Singh v. State of Punjab [(1980) 2 SCC 684] called Section 235(2) as something enabling a “bifurcated trial”, wherein the accused submits evidence possibly without bearing on the crime, but which may still be linked to the “special reasons” to be provided while awarding a death penalty as per Section 354(3) of the CrPC. 

Conflicting Lines of Judicial Opinion

The question, however, is whether a separate phase implies that a different date be set for hearing on sentencing, or, whether sentencing can be conducted right after the determination of guilt has been concluded. There seem to be two lines of cases emanating from the Supreme Court. One states that Section 235(2) cannot be done justice to unless a different date is set, to afford ample time for the accused to prepare a case on sentencing. The second holds that Section 235(2) merely implies that the accused must be effectively heard, which does not require setting a different date for hearing. I argue here that sentencing should always be deferred to a later date in death penalty cases to grant an effective hearing to the accused. I also contend that if this has not been done, the appellate court should remand the case, as a fact-intensive exercise like sentencing should be done by a court of first instance, which also rightly extends the right to appeal against that decision to an accused. While doing so, the appellate court must ensure that the case is disposed off in a timely manner by the lower court to maintain judicial efficacy and reduce the suffering of the accused through further delays.

Set One: Mandatory Separation of Trial and Sentencing Phases

With respect to the first line of cases, the most prominent example is perhaps Allauddin Mian and Ors. v. State of Bihar [(1989) 3 SCC 5], where three judges of the Supreme Court recognised the importance of giving the accused an effective opportunity of placing all relevant mitigating factors, antecedents and background information, and other extenuating factors on record. The bench held in context of Section 235(2) that as “… a general rule the trial courts should after recording the conviction adjourn the matter to a future date ...”. It was believed that the accused must be allowed to absorb and overcome the shock of conviction before being heard on sentence. Since this was not done in that case, the Supreme Court went on to convert the death sentence into life imprisonment, finding insufficient material on sentencing to warrant awarding the death penalty. This decision was followed in Malkiat Singh v. State of Punjab [(1991) 4 SCC 341], where another three-judge bench noted that usually a failure to give sufficient time to adduce evidence on sentencing would lead to remanding the case. However, in that case, the Court held that given the long period of incarceration (it had now been six years since the accused was first convicted), it was more expedient to convert the death penalty into life imprisonment.

Set Two: Same Day Sentencing

The second line of cases is concerned more with hearing the accused sufficiently on sentence, and holds this can be done on the same day as well. On the point of remanding the case, these cases suggest that sentencing hearings need not involve remands. These views take their root in yet-another three judge bench decision in Dagdu v. State of Maharashtra [(1977) 3 SCC 68], wherein the Court held that a failure to be heard on sentence would not automatically entail a remand, and the appellate court could hear the accused on sentence at the later stage as well. The Court called remand the exception, in the interests of judicial efficacy.

A slew of recent decisions has come in support of same-day sentencing, to which I now return. In 2016, yet another three judge bench held in B. A. Umesh v. State of Karnataka [2016 (9) SCALE 600] that there was no mandate under Section 235(2) to fix a separate date for hearing on sentence, and the Court was required to determine whether an effective hearing was granted after looking the facts and circumstances of a given case instead. Merely because no separate date was fixed was no ground to allow the review petition, the Court held in the death penalty matter. The Court also noted that the parties had not objected to not being given a separate date of hearing in the lower courts, and since then several courts including the Supreme Court had heard the parties on the question of sentence in sufficient detail. This was reiterated by three judges in Vasanta Sampath Dupare v. State of Maharashtra [2017 (5) SCALE 724]. 

Neither B. A. Umesh nor Vasanta Sampath Dupare explain the inconsistencies arising by comparing their logic with the Allauddin Mian line of cases. Instead, they simply rely on Dagdu. Recently, in Mukesh and Ors. v. State of NCT of Delhi and Ors. [2017 (3) SCALE 356], the Court over-simplified the conundrum by stating that these decisions reflect two modes that can be afforded to the accused to present a case: either to remand it before the High Court, or be heard on sentence before the Supreme Court itself [the Court believed, in that case, that “regard being had to the nature of the case”, the second mode was preferable].

Making the Case for 'Bifurcation of Trial' 

It is submitted that this second line of decisions disregards the ‘bifurcation-of-trial’ approach adopted by Bachan Singh. These decisions do not explain why the exercise of sentencing, which is governed by different considerations, and may involve new evidence and witnesses requiring different preparation altogether, should be undertaken on the same day. While many of these decisions rely on rhetoric of ensuring an accused has been granted ‘effective hearing’, the Courts must also recognise that adequate time to prepare on a different limb of a trial is a pre-requisite to effective hearing.

The recent decisions I highlighted are also problematic on another level: they imply that the failure of the lower court to hear effectively on sentencing is remedied when an appellate court hears the same. However, our judicial system clarifies that the lower Courts are the courts of evidence with such exercises being exceptional during appellate hearings. Thus, original evidence must as per rule first go through the lower Courts, which are better equipped to deal with the same. Further, under Article 131 and the Supreme Court Rules, 2013, original jurisdiction is only limited to civil suits between the union and the states, or inter se states. For a factually-intensive exercise such as sentencing, often requiring cross-examination, the Supreme Court is not the ideal place for a first (and often final) determination. (On this, see, http://lawandotherthings.com/2017/05/death-penalty-sentencing-the-supreme-court-as-the-first-and-final-arbiter-of-facts/#_ftnref7).

Another important reason to question the second approach is that an automatic bypass in such cases would deny an accused a right to appeal against the ruling in the sentencing stage before the Supreme Court (see http://indianexpress.com/article/opinion/columns/death-penalty-in-india-supreme-court-cases-law-mitigating-evidence-4551607/). This leads to there being no chance of re-appreciation of evidence on sentencing in case of an error in judicial reasoning. In a death penalty case, where the stakes involved in the sentencing process are highest, we must ensure that there is the protective layer of multiple levels of Courts having the option of hearing on sentence.

Conclusions and Some Ways Out of the Bind

Since B. A. Umesh states that same day sentencing was not an issue there because it was not raised before lower courts, defence lawyers should ensure that the need for a separate date for sentencing is adequately highlighted before the lower court itself. Defence lawyers can perhaps also use the caveat given in Malkiat Singh, and argue that prima facie errors in sentencing coupled with lengthy delay for someone on death row should result in converting those cases to life imprisonment, instead of conducting a mini-trial for sentencing yet again. The Supreme Court's current treatment of 'delay' as a factor requires more nuance but. Consider Yakub Abdul Razak Memon v. State of Maharashtra [(2013) 13 SCC 1], where the Court concluded that sentencing hearings must involve remand unless it is likely to cause delay. But, I ask, given the pervading backlog in case-disposal, when would remand not involve some delay? Moreover, the lack of nuance uses delay to take away a right of appeal at the cost of judicial efficacy. Bland arguments suggest delay only lengthens the suffering of those on death row. Of course delay is bad, but it does not entail cutting corners to arrive at the end. This trade-off is unconscionable. Thus, I conclude with suggesting it is time that the Supreme Court clarifies the inconsistency between the two lines of cases by stating the true scope and import of Section 235(2), and while doing so pays heed to the adverse effects of not remanding a case in a case where the judicial power to take a life is at stake.

Supreme Court Affirms Death Sentence for December 16 Incident - Some Thoughts

The Supreme Court yesterday affirmed the death sentence awarded by the Trial Court, and confirmed by the High Court, in the case resulting out of the gang-rape incident that occurred in New Delhi on December 16, 2012. The decision was lapped up by raucous applause we are told, as "justice had been done". Seeing the circus that followed on national television led to some thinking and this post follows. The comments are frankly unoriginal, and are merely confirming what many of us know and understand. 

Criminal Law in the Age of Consumerism

Perhaps history will remember the first decades of the 21st century as the apogee of the age of consumerism and service-oriented thinking. Consumerist ideology has affected all facets of life, most notably government and governance. Good governance manuals now emphasise that this is a service being offered to citizens, and citizens have grievance redressal mechanisms galore akin to making complaints at a shopping mall. 

How has this affected the traditional understanding of criminal law? Significantly. There are books (David Garland's The Culture of Control an excellent one) which discuss this phenomenon. One thing that the present incident puts in the spotlight is how the consumerist ideology has brought victims in the spotlight. Criminal law classes begin by telling us how here the state is the victim - which is why most cases are prosecuted by state agencies. Crime is about harm to society, and the victim was not really given much importance. Slowly, though, this changed. If security is a service offered by the state, of which the criminal law was a facet, then it made sense to accede to victims demands for greater inclusion in the decision-making process. This would increase satisfaction with the system. This, like most other things, accelerated drastically with 24 hour television cycles. It became obvious that crime sells, and so maniacal reporting with amazing graphic (more on that later), little insight, and opinion polls through SMS came here to stay. Obviously, all this is class-specific, so the security concerns of the rich and middle class naturally get more air-time and attention than those affecting the poor. 

The legislative changes are there to see - India has allowed for victims to appeal against acquittals for some time now. This was unimaginable around thirty years ago. The present incident and the media coverage surrounding it just shows how far we've come down the road. Here, there is little else but the victim's perspective that is commented upon everywhere. 

Justice seems to have become rather One-Sided

A very wise lawyer once told me that our statutes created courts of law and not courts of justice, and so I should not lament over seemingly bad decisions. But what really is justice? If I was to take a shot at it, justice best serves as an adjective, describing decisions by looking at the means and ends both. A just decision is not only one arrived at in terms with proper processes of law, but also one that takes into account the rights and interests of every party involved. Given how scholars since Aristotle have been taking a shot at this, I'm pretty certain that my crude understanding is rather inadequate. Still, the idea of justice being something wholesome is something that can be found across philosophers, and can serve as one of the markers.

That wholesomeness seems to have been entirely abandoned in the present case. Nearly every news outlet ran pieces titled Justice for Nirbhaya. These ran with images of the adult perpetrators being crossed out with Hanged (eerily similar to the montage in the first Death Race film which was based on a system of lawlessness). Possible arguments advanced by the defence, on both conviction and sentencing, were brushed aside summarily. The bloodlust was chilling, but hardly novel. In all such cases, wherever there is extensive media coverage and sympathy for the victim, it becomes anathema to raise arguments supporting the rights of an accused person. This is mots extreme in terrorism trials, where persons are routinely denied fundamental human rights but those issues are airbrushed because of the threats to national security. 

In this regard, the Supreme Court deserves to be lauded for the effort it took to hear arguments on sentencing. The Court accepted specific affidavits addressing mitigation factors to consider whether the case fell within the rarest of rare standard (something which was not done in either of the courts below).

Extreme Cases and Lessons to Learn

Make no mistake, this case was extreme in terms of its brutality and violence. Extreme cases often lead to extreme reactions, so it is said, and therefore must not be used as markers to gauge a system. There is much merit in this. It is also valid to argue that extreme cases bring out latent tendencies and show exactly what each of us expects from the criminal justice system. Reactions to the present case leave me with little doubt that debates on abolishing the death sentence in India are a tad redundant. This is saddening, for there is nothing as arbitrary as the infliction of the death sentence in India. Perhaps more disturbing is the perception that those arguing for the defence are somehow bogeymen, delaying the inevitable. Such a view distorts the crucial role that the defence plays in ensuring that justice is not only done but in fact seen to be done. Alas, it would seem that the idea of justice, itself, may no longer be the same.

Govindaswamy v. State of Kerala

It has been an interesting week. On one hand critics and moviegoers alike have been heaping praise on Pink, dubbed the first film to raise the issues of female sexual autonomy and choice in post-1991 India. On the other, the Supreme Court set aside the conviction for murder under Section 302 IPC and the attendant death sentence in Govindaswamy v. State of Kerala [made infamous by the deceased victim’s name, which this comment desists from using]. I argue here the decision is a brave one. But as much as my biases make me support it, its reasoning is not beyond reasonable doubt.

There is little to gain by recounting but the most essential facts. An adult woman was found lying grievously hurt near train tracks near Shornur, Kerala, on the night of 1st February, 2011. She was found at the insistence of two people who believed they saw her falling from the train, convinced the fellow passenger travelling with them was wrong in saying that she had willingly jumped and fled. Her condition when they found her convinced the witnesses that she had been attacked by the suspicious one-handed man lurking about the compartment. Subsequent medical treatment proved insufficient, and the victim succumbed to her injuries on 6th February. 

The Fast Track Court convicted the accused of Murder (Section 302 IPC), Rape (Section 376 IPC) and other offences. The death sentence was recommended which the High Court confirmed. As we know, the Supreme Court altered only one aspect of the decision – the conviction and sentence for Murder. What does a conviction for murder require, then, that the Supreme Court found the ingredients lacking? Section 300 IPC defines murder (punished by Section 302 IPC). Broadly, it explains that a Culpable Homicide (defined in Section 299 IPC) can amount to Murder in certain cases, where:

1. If the act causing death is accompanied by the intention of causing death, or
2. If the act causing death is caused with intention of causing such injury that the offender knows is likely to cause death of the person to whom the harm is caused, or
3. If the act is done with the intention of causing injury, and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the offender knows the act is so imminently dangerous that it must, in all probability, cause death or such injury likely to cause death, and commits such an act without any excuse for incurring the risk.

The first three categories require an intention, while the last can be satisfied with knowledge. To prove I intended on doing something is more onerous than proving that I knew something will happen i.e. I had foresight of the consequences of my actions. This is justified. It should not be easy to label someone as a murderer and inflict upon them the harshest sanctions of life imprisonment or death. There is a slight relaxation in the third clause – I intend the injury and not the consequence of death but a conviction is possible as long as the injury is sufficient in the ordinary course of nature to cause death. The Trial Court and High Court decisions suggest this was how the case for Murder was made out. There was no direct evidence to show that the Accused caused the injuries, though, but both courts found the circumstances clinching. 

Proving a case on circumstantial evidence is tricky business. A testifying to seeing X killing Y with a knife is quite different from A testifying to seeing X with a knife 500 meters from where Y was found dead, and then convicting X for murder. Courts acknowledge this and there is a long line of decisions holding that a conviction on circumstantial evidence can only stand if the ‘chain of circumstances’ does not allow for any other conclusion other than guilt. Let’s take this case. The Supreme Court culls out three sets of injuries suffered by the victim. The first was injuries inflicted inside the train, the second those suffered from the fall on the railway tracks, and the third was the injuries associated with the sexual assault. The medical evidence was clear that a combination of the injuries suffered from the fall on the tracks with the subsequent sexual assault is what caused death. 

So the question, then, was whether the chain of circumstances only allowed for one conclusion here: that the accused intentionally inflicted injuries which were sufficient in the ordinary course to cause death. The three judges unanimously held it was not so. There was doubt whether the accused pushed the victim off the train or she fell herself. Therefore, it was also doubtful whether he intended the injuries resulting from the fall at all. Notice how the Supreme Court framed the issue: “However, so far as Injury No. 2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessarily follow.” The State argued the effects of the first injury could be seen as causing the victim to fall from the train, connecting the injuries to the accused. But the Supreme Court expressed reservations about this being the only conclusion, since a passenger near the compartment door said the victim had “made good her escape” by jumping.

Two related complaints can arise from this reasoning. First, when the medical evidence conflicted the escape theory (it could not be said the victim ‘made good her escape’), why give precedence to unverified oral testimony? Second, did it really matter whether the accused pushed the victim or she fell herself? The injuries to her head from the fall, as per medical evidence, were caused because the victim was dazed and had dulled reflexes owing to earlier injuries (not doubted as being caused by the accused). That being so, could the latter injuries from the fall not be considered as being caused by the initial attack by the accused? There is nothing to negative this causal connection on the facts. Of course the law does not allow X to walk away innocent by simply desisting from delivering the blow and causing Y to harm herself instead. But can we say that X intended those injuries or that X merely knew they are foreseeable? That, is the question.

I called this a brave decision because the Court could easily have maintained the conviction and reduced the sentence if it had doubts. Such a compromise might have been seen more appropriately in some quarters. But the Court went a step further. In doing so, it displayed a commitment to procedural rules not always easy in the face of ghastly facts. Judges are only human after all, and the perceived harshness of courts in sexual assault cases does display a tendency of playing to the pulpit, with the Supreme Court no exception. Nonetheless, the issues have not been thoroughly considered. Kerala has made a statement that it plans to file a Review Petition challenging the decision. As this comment argues, there may be enough material to warrant one.

[Thanks to Sonali Malik for her inputs]

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.