The criminal law of our country has become rather static and this is attributable to the neglect of the Supreme Court of India in considering the jurisprudential questions which relate to crime and punishment. The Court is content in using its discretion by interpreting the law as it is, and does not want to disturb the status quo. As a result, the very essence of the Code of Criminal Procedure, 1973 (‘the Code’) appears to have been lost and the objective of providing a fair trial is vitiated. This article explores the level of discretion available with the Courts in awarding the death penalty and the room it grants for deviation from the first principles of the Code. It also delves into the need for a penalty this harsh (in light of modern penology).
The recent judgment of the Supreme Court in ChannuLal v. The State of Chhattisgarh (‘ChannuLal’)has reignited the debate on whether it is time for a review of death penalty even in the rarest of rare cases. The Supreme Court in ChannuLal observed as below:
“…The decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest of ‘rare case where the alternative is unquestionably foreclosed.’ The questions laid down in Machhi Singhhave not been answered in the particular case. No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of theappellant has been adduced. Bachan Singh unambiguously sets out that death penalty shall be awarded only in the rarest of the rare cases where life imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty. As laid down in Shankar KisanraoKhade, whether the person would be a threat to society or whether not granting death penalty would send a wrong message to society are additional factors to be looked at…”
With this observation in mind, let us begin with the evaluation of a rarest of rare case.
Balancing the Aggravating and Mitigating Circumstances
One may back-paddle to the case of Jagmohan Singh v. State of U.P.to point out the manner in which the provision for providing death penalty under section 302 of the Indian Penal Code, 1860 (“IPC”) was held to be constitutional. Attention was also drawn to Article 14 of the Constitution and the Court said that the same cannot be invoked insofar as the matter relates to judicial discretion. Thus, death penalty came to be established as an exception to the rule of life imprisonment. The Supreme Court, thereafter, laid down aggravating circumstances (propounding the rarest of rare case doctrine) in Bachan Singh v. State of Punjab ( ‘Bachan Singh’), and parallelly came the decision of Machhi Singh v. State of Punjab which considered the other side of the coin (the treatment of offenders) by spelling out the mitigating circumstances which the court ought to consider, even in the absence of an express plea taken by the accused. Our considerations, however, do not come to end with this position in law and we believe it is necessary to smoothen the creases to answer the question as to whether death penalty is in harmony with modern penology.
Interestingly, Sarkaria J., the inventor of the doctrine of the rarest of a rare case, himself, leaned towards the abolition of death penalty[1].Although he confined himself to the black and white text rather diligently, the doctrine was propounded with utter ignorance of the principles of penology – totally neglecting the fact that death penalty awarded even to ‘heinous offenders’ is grave and diabolical in nature; and it diverges from the very core of Article 21 (Right to life)of the Constitution.
The Weight of the Balance and Errors therein
Although it is trite that the Courts are to weigh the aggravating & mitigating circumstances in a balance, the trend has been to award the death penalty rather than carrying out the necessary exercise of looking into the mitigating factors. It may be the bane of being a polyvocal court, but it has been seen that factors which may be considered as ‘mitigating’ largely depend upon the background of the Judge. Following this path has meant that even though the design and aim of our criminal law is to protect the personal liberty of an individual, this is often not for an accused.That decisions of the Court are often influenced by a variety of external factors (such as media trials and public understanding of the incidents) is a common perception. The result is often that the decisions which come down are not commensurate with the socio-cultural needs of time and largely neglect the rights of the accused.
A contention may be raised here that judges are circumspect and are under a duty to state special reasons (when awarding a death sentence) by virtue of sub-clause 3 of section 354 of the Code. However, it is futile to clutter one’s thought process with such an argument as the sub-clause does not act as a safety valve whatsoever. In fact, it existed even before Bachan Singh, but to no avail. How can a mere stating of reason (after a decision has been reached) be of any good when external factors have already been at play?
Long trials and decades of imprisonment before sentencing
Another mitigating factor which may be considered but is often lost sight of is the long imprisonment terms that these offenders have already gone through by the time the death penalty is granted (and their resultant mental state). It is no hidden fact that criminal trials stretch over decades and even a safeguard provided by Section 309 of the Code is barren. One can look to the durations of the trials and appeals in the matters of PriyadarshiniMattoo, ArunaShanbaug, and Nirbhaya. These years of Court battles often lead to a feeling of ‘Justice delayed is Justice denied’against the already suffering accused.
The pragmatic view, though, is that even after adopting such a course (of retributive punishment), there cannot be said to be any apparent reduction in the attempt or commission of these heinous offences which come to merit the death penalty. To substantiate, the statistics of the National Crime Records Bureau comes to our aid, which record that 29,017 cases of murder were registered during 2018 and ‘crime rate per lakh women population was 58.8’ in 2018 (which was again an increase from the previous year!).
Now, the residual question is whether a punishment which does not have any deterrent effect, be treated as ‘good punishment’ or, is law only a means to catch the small fish?
An arcane model
Another compelling argument is with regard to section 303 of the Indian Penal Code, 1860 (IPC). The Section provides as under:
“303. Punishment for murder by life-convict. – Whoever, being under sentence of [imprisonment for life], commits murder, shall be punished with death.”
The Supreme Court in Mithu Singh v. State of Punjab notably declared the provision to be ultra-vires by observing that it is violative of Article 14 and Article 21 of the Constitution of India.
Hitherto, it is seen that the right to life must be given supremacy and drawing similar analogy in relation to this piece as well, a punishment of death penalty is ‘out of tune with the march of times.’
‘The murderer has killed. It is wrong to kill. Let us kill the murderer.’[2]
The situation of crimes at a given point of time is a barometer of the mindset and progress of the society. So, instead of approaching a given case with such a retributive whisper, the time hascome to re-evaluate the provision of death penalty in India.
Requirements of Modern Penology
But the moot question is – whether we are really basing our case on a ‘modern thought’? Let us try and answer the same forthwith.
It was Beccaria’s Treatise in 1764 which was the first to document the need for abolishing death penalty altogether. His arguments were twofold: firstly, that a criminal justice system which punishes a murder, must not be allowed to commit the very act itself; and secondly, death penalty runs against the idea of reformation and rehabilitation of the offender. Thus, it is surprising how such ‘an ancient thought’happens to be in tune with the basic idea of human rights, while modern penology ignores it altogether. Besides, the theory of retribution merely allows the society to forget in one-strike the acts of the offenders, and the repercussions of their offences.
Before closing our case, let us also (in the backdrop of the above) highlight that international law does not completely outlaw death penalty and the international community only frowns upon ‘some’ methods of execution. However, a new line of thought is gaining ground – the world is slowly recognising ‘cruel, inhuman and degrading treatment and torture’[3] and the nature of the punishment against the offender. This progressive view is sure to take effect soon, and the latter part (that is,considering the nature of punishment), when read harmoniously with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) – which guarantees an inherent right to life to an individual – creates an argument in favour of the abolitionists.
As a matter of fact, the ICCPR Committee (in 1996) recommended that India “abolish by the law the imposition of death penalty on minors and limit the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition”[4].
It is perhaps time for India to review its age-old custom of awarding a death sentence even in the rarest of a rare case
[1]O. Chinnappa Reddy, ‘The Court and the Constitution of India’, p. 285.
[2]O. Chinnappa Reddy, The Court and the Constitution of India, Summits and Shallows, p. 287.
[3]The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of Death Penalty.
[4]UN Human Rights Committee, Concluding Observations of the Human Rights Committee: India, para. 4.
This post was authored by Abhinav Goyal & Meghna Nimbekar and was first published by the NLUJ Criminal Law Blog here. The views expressed in this post are those of the authors and do not necessarily reflect the position of Sigma Chambers.
The authors may be contacted at abhinav@sigmachambers.in.