ABSTRACT
Capital punishment is one of the most important and contested upon topics in criminal jurisprudence. While there are many countries that have completely done away with capital punishment, there is some where even though the punishment is still there; not a single execution has been carried out in decades. India is not one of them. Here death penalty is completely valid and its validity has been upheld in several constitutional cases. But in this multifaceted cultural, traditional, religious society, the penalty is only limited to the rarest of the rare cases and there is no straight jacket formula for the application of the same. Prior to 1955 under the old Code of procedural law governing our country, according to section 367(5) imposition of death sentence for an offence of murder was the rule and a departure from the same was the exception. But in the new code, the discretion of the judge to impose a death sentence has been narrowed, and now court has to provide special reasons for imposing capital punishment. In this regard, the decision of Bachan Singh v. State of Punjab, 1980 is significant for this case affirming the constitutional validity of the death sentence, lays down certain criteria for imposing the same. Section 354(3) of Crpc, thus, exhibits a clear shift in the legislative stance from pro death sentence to pro life imprisonment. In this paper, the author takes a deep dive into “the doctrine of rarest of rare” cases, its background and evolution throughout the years.
KEYWORDS
Rarest of the rare doctrine, capital punishment, aggravating circumstances, mitigating circumstances, special reasons, awarded, legislative mandate.
INTRODUCTION
“The present case clearly comes within the category of ‘rarest of the rare’ where the question of any other punishment is reasonably foreclosed”
-Supreme Court in its verdict in 2012 Nirbhaya rape case
In the whole of IPC there is only one sec (sec 303) where death is prescribed as the only punishment- where a person under life imprisonment commits murder; and even this lone section has been rightfully struck down by the Supreme Court as it was violative of our Constitutional safeguards. Thus right to life guaranteed under Art 21 is of immense significance and greatest care has to be taken when this right is being infringed. In ordinary circumstances, there has to be reasons to take away someone’s life and when State is the life taker, the reasons has to be extraordinary. The question which emerges at this juncture is how to make sure that these sky high aspirations are fulfilled. The answer would be a just, fair and reasonable sentencing policy when it comes to cases of Capital Punishment. Bachan Singh’s case is of immense importance in this regard because during the hearing of this case, the SC has agreed that both “mitigating and aggravating circumstances” are equally relevant and are of great weight in determination and imposition of the death sentence. It however stressed that there are several other “mitigating and aggravating circumstances” that obviously cannot be enumerated in an exhaustive list as that might curtail judicial discretion and judicial application of mind. But according to the court, “aggravating circumstances” are those situations or circumstances which are in aggravation to normal circumstance. And only those circumstances would form special reasons under sec 354(3) of the Act. After reciting out the criteria for “aggravating circumstances”, the court also pointed out that the “mitigating circumstances”, favoring the accused should receive a liberal and board construction. Judges should not be savages. It should be seen that the courts should follow the legislative outlines and carry on their duties with utmost care and precaution because law does not allow one to take another’s life save for the rarest of the rare cases.
RESEARCH METHODOLOGY
This is a descriptive paper and the researcher employs a Quantitative research design focusing on detailed analysis of judicial decisions related to the doctrine. The criteria of selection of case laws include the landmark judgments from the SC of India, significant ruling from various high courts, recent and relevant cases that highlight the evolving nature of legal interpretations. The source of data used by the researcher in this study includes legal databases such as SSC Online, Manupatra, and LexisNexis, legal services of India, Indian Kanoon, published law reports and legal journals, books like PSA Pillai’s Criminal law, R.V. Kelkar’s Criminal Procedure, official court websites for accessing full text judgments. The researcher has compared and analyzed various judicial interpretations across different cases to identify consistencies and divergence in legal reasoning and interpreting the implication of judicial decisions for broader legal principles governing the rarest of the rare doctrine.
LITERATURE REVIEW
Psa Pillai’s Criminal Law by Dr. Kl Vibhute, 14th Edition (2019)
This book should be referred by all students of law since it is inclusive of every aspect of criminal law. With a sharp eye to details and accuracy, this book not only covers all aspects of criminal law in great detail but also preserves the decades old legacy of the English law. This book has perfectly presented the interrelationship of academic framework and legislative framework.
RV Kelkar’s Criminal Procedure by K.N. Chandrasekharan Pillai, 7th Edition (2021)
Procedural law is something that is very integral to law, without procedural law, substantive law would have no effect. This book is a must and a quintessential part of understanding the whole concept of criminal law. The precision to details and the inclusiveness of the recent judgments makes it a staple for all the law students. In this book we get to see how the author has wonderfully crafted and spelled out the interrelationship between academic writing and legislative policies.
M.P. Jain Indian Constitutional law by M.P. Jain, 8th Edition (2018)
This book is a timeless classic which provides a multifaceted and intricate take on the entire subject of Indian Constitutional law in a lucid, easy to read and thorough manner.
There were several other papers on the same topic that provided a panoramic examination of the rarest of the rare doctrine, its history, evolution and provides a deep dive into its functioning which advances our academic knowledge on Indian criminal law.
CONSTITUTIONAL VALIDITY OF DEATH PENALTY
Bachan Singh was the case where the Constitutional validity of the death penalty was questioned. The Bench hearing the case noticed that SC had given two judgments on the validity and scope of the imposition of death penalty. The first case was the Constitutional bench ruling in Jagmohan v State of Uttar Pradesh, in which the five judge bench of the SC, by their verdict, upheld that death penalty was valid and that it was not violative of Art 14, 19 and 21. In the given case, death sentence and its validity was challenged on the ground that it was violative of Art 19 and 21 because it did not provide any procedure for the imposition of death penalty. It was contended by the Court that the imposition of death penalty or giving someone life imprisonment depended upon the facts and circumstances of a case and it will vary from case to case. And in another case of Rajendra Prasad v State of Uttar Pradesh it was held by the majority of the judges that when a trial court comes to the conclusion that a murder has taken place, the prosecutor should be called upon to see if the extreme penalty is called for or not and if so, then reasons for the same with leading evidence to support the case. Therefore the judges were sympathetic towards the imposition of death penalty and held it to be violative of several constitutional provisions. Deena v Union of India was a leading case which challenged the constitutional validity of section 354(5) the Act which prescribed hanging as a method of execution. It was held that hanging was not a degrading form of execution and hence not violative of Art 21. In the case of Santosh Kumar Satishbhushan v. State of Maharashtra (2009) it was clearly reiterated that life imprisonment is the norm and death penalty is the deviation from the norm. In the well-known case of Ajmal Kasab, who was one of the masterminds behind the 26th November Mumbai attacks, capital punishment was inflicted on him since he was held guilty of around 80 offences, including murder, possessing explosives, and waging war against India. In the horrifying and gut wrenching case of Mukesh and Anr. v. State (NCT of Delhi) 2017, the Supreme Court upheld the death penalty for four prisoners, describing it as “the rarest of rare” and stating that it was one of the worst crimes against humanity.
EVOLVING PARAMETERS FOR THE IMPOSITION OF DEATH SENTENCE –
Bachan Singh’s case gave us certain circumstances as guidelines for determining “aggravating circumstances” which would influence the rationale of the court for the imposition of death penalty-
- In conditions where the murder was pre planned and entails extreme savagery; or where the murder involves unprecedented amount of vice or pervertedness; or where the murder of a public servant like a member of the police or the armed forces of the Union, has been committed while he was on duty and discharging his services; or a person has been murdered who was discharging his duty under sec 43 of the Act or was rendering his assistance under sec 37 and sec 129 of the Act.
It also suggested that while deciding whether to inflict death penalty or not, the Court should take into consideration the mitigating circumstances favoring the accused.
- To see whether the accused was under the influence of extreme mental or emotional dilemma when he committed the offence; To take into consideration the life and age group of the accused, if too juvenile or too elderly, they shall not given death penalty; The probability of not continuing to be a threat to the society; The probability of reformation and rehabilitation; That in those moments of committing the crime, the accused believed that he was morally justified to do so; to see whether the accused acted under pressure or someone was dominating the accused; to look at the mental capacity of the accused, whether he was mentally sound or not and could understand the consequences of his actions.
SC in Machi Singh v state of Punjab after going through the Bachan Singh case had culled out a set of rules to be applied to each case where the question of death penalty arises.
- This judgment ruled that death penalty would only be inflicted in cases of extreme culpability; before considering the imposition of the penalty, the “mitigating and the aggravating circumstances” has to be taken into record; the norm is life imprisonment and death sentence is the deviation; A balance sheet of “aggravating and mitigating circumstances” has to be drafted and equal weightage has to be given to both while simultaneously striking a just balance between the two. For these guidelines to work effectively two questions are important.
- Is there something unique or extra about the offence committed, which calls for deviation from the norm of life imprisonment and infliction of the death sentence?
- Whether the case is such that there is no alternative available but imposition of the death sentence is the only solution even after according maximum weightage to the “mitigating circumstances”?
The circumstances constituting the “rarest of the rare cases” has been reiterated In Lehna v State of Haryana, It described rarest of the rare cases as those cases where the collective morality of the society is shattered, the belief system of the people crumbles to a point of no return. In those situations, the people of the community will want nothing else but the imposition of the death penalty. Such a sentiment will only be entertained in the following circumstances-
- The offence has been committed in such a repugnant or diabolical manner so as to arouse extreme hatred towards that person in the community.
- The sole motive for committing the offence was vice, depravity and meanness; e.g.- a mother sacrificing her child, a doctor killing his patient. Here in both the instances, the accused was in position of trust.
- Due to societal and not personal reasons, a member of minority community is murdered, or when a newly wedded bride is murdered because of the want for dowry, or when the husband kills his wife on the pretext of marrying another woman out of infatuation towards the other woman.
- The offence committed was enormous in proportion, that is, many people are killed all at once. E.g.- a father slaughtering his entire family on the pretext of religious faith.
- When the death is of an innocent child, or a helpless woman, or an old or infirm person and the perpetrator is in an influential position or a public figure generally well loved and received by the people.
In spite of the rules for the imposition of death penalty, there are a number of cases where these guidelines are not followed. For instance, in Ram Anup Singh v State of Bihar, wherein all the members of the accused’s family was killed by the accused, SC set aside his death sentence for life imprisonment on the pretext that the accused can only be released after completing a term of 20 years. In Sahdeo v State of UP wherein an unlawful assembly killed eight persons, the court converted the death sentence into life imprisonment. In Des Raj v State of Punjab, wherein the appellant had caused death of three, was sentenced to death by the original court, later confirmed by the high court, SC declined to treat it as rarest of rare case on the ground that the courts were carried away by the seriousness of the offence and did not give much weight to the “mitigating factors”.
However in Sangeet v State of Haryana, the Supreme Court expressing a view that Machhi Singh “balance sheet approach of aggravating and mitigating circumstances” approach was mistaken, asked to take a fresh look to it and its adoption in awarding death sentence. In sentencing it asserted that both the crime and the criminal are equally important. Therefore Sharing the Sangeet perception about the balancing test as an incorrect test for opting death sentence, the Supreme Court in, Shankar Kisanrao Khade v State of Maharashtra, presented a view of eliminating “judge centric sentencing” proposed the ‘crime test’ (aggravating circumstance); and the “criminal test” (mitigating circumstances), and the ‘rarest of the rare test’(R-R test), in place of the prevalent “balancing test” for inflicting death penalty. Thus the triple test revolved around the fact that both, “aggravating circumstances” have to be fully satisfied and there should be no “mitigating circumstances” favoring the accused. Even if both the tests are satisfied, the court has to fully apply the R-R test.
EXPOSITORY CASES WHEN DEATH SENTENCE WAS CONFIRMED
Sushil Murmu v State of Jharkhand– here the SC confirmed the death sentence of a person who sacrificed a nine year old boy in the most diabolical manner possible and calling it a rarest of the rare case, dismissed his appeal.
Suresh Chandra Bahri v State of Bihar– here the accused, under the cover of selling his family’s Ranchi house and using the sale proceeds to move to America, had conspired with several others to kills his wife and two young children. After killing his wife and two children, he proceeded to cut them up into pieces and throw them into a river. Thus this case was rightfully iterated as rarest of the rare and death penalty was confirmed
EXPOSITORY CASES WHEN DEATH SENTENCE HAS BEEN COMMUTED TO LIFE IMPRISONMENT
Om Prakash v State of Haryana– Here Om Prakash, the accused, who was working in the army (BSF) was awarded death sentence by the trial and the High court since he was accused of killing seven members of a rival family. But there was some evidence on record that was not taken into consideration, like there was a dispute between the appellant and the deceased family over a land and house. Since the deceased party was politically and financially powerful and well connected, the complaints made by the accused to the police proved futile and owing to the circumstance, the offence was committed. Owing to the following “mitigating factors”, The SC reduced the sentence of death to life imprisonment.
Mulla v State of Uttar Pradesh– Here the SC has used economic depravity, along with 15 years spent in custody and infirm age, and the ability of reformation of the convict for converting death sentence into life imprisonment.
CLEMENCY POWERS
A brief look into art 72 of the Constitution gives us the power of the President to stay the execution of sentence, to postpone the execution of a sentence, to forgive or to excuse a sentence, to reduce the amount of sentence or change the sentence to a higher penalty of any person convicted of any offence in all cases-
(a) Where the sentence was pronounced by the court martial; or
(b)Where the Union has pronounced the punishment; or
(c) Of a death sentence.
It has now been judicially clarified through various cases like Maru Ram v UOI, that though the President has the power of pardon, he is only to exercise this power on consultation with the Home Minister.
Under Article 161, the Governor too is entrusted with almost the same powers as that of the President but his powers only extend to any offences or to any matter to which the State’s executive power extends. It is also a settled judicial principle in law that the Governor too does not exercise the clemency powers in his own discretion but on the advice of the Council of Ministers. In one such case, the madras HC quashed the governor’s order of rejecting a mercy petition because he did so without seeking the advice of his Council Of Ministers..
The SC in Shatrughan Chauhan case has recorded that the Home Ministry considers the following factors while deciding mercy petitions:
(a)the age group and the mentality of the accused, whether he is mentally sane or not, circumstances of the case in which the crime took place; (b) where the original and the appellate Court were doubtful about the reliability of the evidence but nevertheless accepted the evidence to be true and convicted the accused; (c) Where on appeal the acquittal of the accused was reversed or his sentence enhanced; (d) to see if a reference to a larger Bench is needed or not; (e) Long and unjustifiable delays in the whole process of investigation and trial etc.
CONCLUSIONS AND SUGGESTIONS
Life imprisonment serves equal penological goal if not the same as death penalty or capital punishment. We should all remember that vengeance is not the goal, primarily because not everyone is batman but also because reformation and rehabilitation of the accused and the victim should be the topmost priority. Rather than an eye for an eye, let’s heal the damaged eye. The “Law Commission of India in its 262nd Report (August 2015) recommended that death penalty should only be inflicted in terrorism related offences and waging war”. This is our own evolving Indian criminal jurisprudence. In 1955, special reasons had to be given for the imposition of life imprisonment; fast forward to 1973 where special reasons had to be given for the imposition of death penalty; and looking at the current criminal law where the death penalty is now restricted by the SC to the “rarest of rare cases” – this shows how far we have come. Law has evolved and with that we too have become more informed of our rights.
As mentioned above, Capital punishment fails to achieve any valid penological goals. If we focus on death penalty, we are forgetting the most important part, attending to the victims and rehabilitating them. Effective victim compensation scheme should be made to properly rehabilitate victims of crime. Given the discretionary powers of the court, the SC has noted that it is difficult to distinguish between the obiter dicta of cases where death penalty has been imposed from those where life imprisonment is preferred. Thus there is an extremely uneven application of the Bachan Singh’s principle. This in addition to the gaps and illegalities in exercising of mercy powers under Art 72 and 161 have sometimes lead to the miscarriage of justice in the imposition of the death sentence. The treatment of the death row prisoners is something that should be taken into consideration too. They are harassed by continuing delays and this is further exasperated by the degrading conditions of the confinement homes. All in all India needs to take a step beyond and improve its criminal justice system so that everyone gets a chance in a fair, justiciable and equitable justice system. Justice for all should be the end motto.
ATREYEE DEY
ST. XAVIER’S UNIVERSITY