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Updated: December 14, 2012 02:20 IST

For a moratorium on death sentence

V. Venkatesan
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The Hindu

There is a need to identify cases in which the courts might have erred in applying the Bachan Singh principle that limits the imposition of the death penalty

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh (1980) is the source of contemporary death penalty jurisprudence in India. Its major contribution was to limit the imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.

However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.

Matter of concern

It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its helplessness. The frequency of such criticism from the judiciary may appear to be exercises in genuine introspection but to the litigants, the very credibility of the court’s death penalty decisions is at stake.

The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by itself, the executive cannot pretend to be unconcerned.

The latest admission of such error is to be found in the judgment delivered by Justice Madan B. Lokur for himself and on behalf of Justice K.S. Radhakrishnan, in Sangeet & ANR vs. State of Haryana, on November 20.

The genesis of Sangeet can be traced to another Supreme Court judgment delivered in 2009. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, a two-judge Bench admitted to error in the sentencing to death of seven convicts by the previous benches of the court. Similar error was immediately noticed in the sentencing to death of six more convicts, after the delivery of judgment in Bariyar, taking their total to 13.

The error was the reliance by the court on a legal precedent, which Bariyar declared as per incuriam. The term, per incuriam, refers to a decision which a subsequent court finds to be a mistake, occurring through ignorance of a relevant authority, and therefore not a binding precedent.

Erroneous precedent

The erroneous legal precedent was Ravji v. State of Rajasthan, decided in 1996 by a two-judge Bench. In Ravji, the court had found only characteristics relating to the crime, to the exclusion of the criminal, as relevant to sentencing. Bariyar noted with disapproval that the court had relied on Ravji as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent, in six cases. This was inconsistent with the Bachan Singh ruling by the five-Judge Constitution Bench in 1980, which had shifted the focus of sentencing from the “crime” to the “crime and the criminal”.

In Sangeet, the Radhakrishnan-Lokur Bench has continued the judicial scrutiny started by Bariyar of post-Bachan Singh death penalty cases, to see if they have complied with the requirements of the law. Thanks to this scrutiny, five other cases which resulted in the wrongful sentencing to death of six more convicts have come to light. They are Shivu, Jadeswamy, B.A. Umesh, Rajendra Pralhadrao Wasnik, Mohd. Mannan, and Sushil Murmu. The former President, Pratibha Patil, has already commuted Murmu’s death sentence to life imprisonment.

Back to 13

Five of the 13 convicts identified in and after Bariyar have already got their sentences commuted to life imprisonment by competent authorities. With Sangeet pointing to five more such convicts, the total number of prisoners to be taken off the death row is back to 13 again.

Unlike Bariyar, however, Sangeet has not declared the five erroneous judgments per incuriam. But the result of the scrutiny in both the cases is the same: no future Bench can cite these cases on a point of law, without inviting the Ravji taint. The recent appeal by 14 former judges to the President to spare the lives of the eight convicts, who have been wrongly sentenced to death by the Supreme Court must, therefore, apply equally to these five convicts identified in Sangeet.

It is not unusual to come across observations by the courts while justifying the death sentence, that there is extreme indignation of the community over the nature of the crime, and that collective conscience of the community is petrified by the extremely brutal, grotesque, diabolical, revolting or dastardly manner of the commission of the crime. After making these observations, it is easy for the courts to jump to the conclusion that the criminal is a menace to society and shall continue to be so and he cannot be reformed.

These are empty clichés repeated ad nauseam without any basis. Sangeet, therefore, gently reminds the courts about the need to back such observations with some material. The nature of the crime alone cannot form such material, it has held.

Sangeet has pointed out a grave infirmity with regard to the sentencing of Umesh and Sushil Murmu, to death. The Supreme Court found both Umesh and Sushil Murmu incapable of rehabilitation and, therefore, deserving of the death sentence because of their alleged involvement in crimes other than those for which they were convicted — turning upside down the doctrine of presumption of innocence, the cornerstone of our criminal jurisprudence.

Bachan Singh, delivered by a five-judge Constitution Bench, clearly discarded the proposition that the court must balance aggravating and mitigating circumstances through a balance sheet theory. The theory requires weighing aggravating factors of the crime against the mitigating factors of the criminal. In Machhi Singh (1983), however, a three-judge Supreme Court Bench, brought the balance sheet theory back, and gave it legitimacy. The theory has held the field post-Machhi Singh.

Sangeet has sought to revive the Bachan Singh dictum that the aggravating circumstances of the crime and the mitigating circumstances of the criminal are completely distinct and different elements, and cannot be compared with one another. Therefore, it has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh.

Sangeet holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case falls under the rarest of rare category, a test enunciated in Bachan Singh. It also endorses the proposition that by standardising and categorising crimes, Machhi Singh considerably enlarged the scope for imposing the death penalty, that was greatly restricted by Bachan Singh.

The Radhakrishnan-Lokur Bench, being a two-judge Bench, could not have overruled Machhi Singh, despite its obvious flaws, and the source of much of the inconsistency in our death penalty jurisprudence. A three-judge bench in Swami Shraddhanand II in 2008 had raised similar doubts about Machhi Singh; but the courts continue to invoke it.

In its judgment delivered on August 29, among other things, the Supreme Court relied on the flawed Machhi Singh for its reasoning, and used the balance sheet theory, arraigned by Sangeet, to sentence Ajmal Kasab.

The serious issues raised in Sangeet are incapable of being resolved by the judiciary itself. Any delay in their resolution will inexorably create more death row convicts, than what is justified legally. There is indeed a case for the government to immediately announce a moratorium on executing death sentences and set up a Commission to identify the cases in which any of the courts — trial courts, high courts and the Supreme Court — might have erred in correctly applying the Bachan Singh principles, while sentencing. The findings of the Commission will be useful for deciding the future of death sentence in the country.

More In: Lead | Opinion

The Kasaab hanging has raised some issues. As regards any sentence,
basic question is what is the objective behind awarding such a
sentence? I believe that sentence should act as a deterrent. In case
of a death sentence, since it invariably involves a crime of taking
some other’s life by convict who has been given the death sentence,
another issue is whether award of death sentence gives justice to the
victim’s families. Therefore, any debate about continuation or
abolition of death penalty should consider whether it is possible to
have in place any reform measure or a kind of punishment which would
act as a deterrent and reduce crime substantially. In today’s
environment when religion is used to give a support to crime against
followers of another religion, it is time we must seriously debate the
impact of the existing judicial system to control or minimize crime.
Also we citizens in the society have to find effective ways to do so
if the existing judicial system cannot do it.

from:  Narendra M Apte
Posted on: Dec 11, 2012 at 15:55 IST

Can't we have a set of bench to look into the case of convicts facing execution charges? At least judge centric approach will vanish as the same judges will be examine every case.... since execution has been left to the bench to decide, each bench will have its own perspective about the case.. Erroneous judgement, as accepted in some cases, that too a judgement by SC of India will certainly raise apprehensions about our Jurisprudence.... it is time amendments take place....

from:  Aashish Gambhir
Posted on: Dec 11, 2012 at 11:10 IST

It will be good to extend that judgement on animals as wells.. They are
also living :)

from:  raman
Posted on: Dec 11, 2012 at 08:51 IST

I am no expert on criminal jurisprudence. However, with due respect to
Mr. Venkatesan, his suggestion of setting up a commission to look at
all cases is typical of our Indian mentality to run away from taking
difficult decisions. Law is by nature dynamic, subjective and liable to
interpretation. To say that only the principle from the Bachan Singh
case be blindly applied to all cases makes mockery of justice by not
allowing various courts to apply their own thinking to particular
circumstances. By the same logic, one can question the 1980 judgement
by saying that what was written in the law prior to Bachan Singh should
have been blindly applied to Bachan's case. For all its short-comings,
India has a pretty robust system of courts with provisions for appeals
to higher courts. By invoking one case and casting doubt on all cases,
we will not be serving the cause of justice but only providing further
legal arguments for criminals. If criminals have rights, their victims
have doubly so!

from:  Vaibhav
Posted on: Dec 11, 2012 at 08:47 IST

The constitution makers had the wisdom of the possible errors and harshness in our
criminal justice system. Therefore the provision of executive clemency is enshrined in
article 72 and 161 of the Indian constitution. The legal precedents created by the judiciary,
regarding death penalty, needs to be respected and left to the institution to evolve further.
Till then, it is the role of the executive to commute the death penalty only to prevent the
citizens from the wrath of our criminal justice system.

from:  Sritik Sinha
Posted on: Dec 10, 2012 at 19:44 IST

No right is absolute and so also right to life.Some crimes are so
heinous,despicable and brute that only suitable punishment would be
death sentence.Further,whenever death sentence is awarded,invariably it
goes up to apex court.There could be differing views of the Judges at
given point of time but sufficient check and balance is in built.Death
sentence in certain cases are neither revenge nor retribution but
outcome of some disgusting act by a human being against others of his
species.

from:  kailash singh
Posted on: Dec 10, 2012 at 18:05 IST

Mr. Jayesh is speaking from BJP's mouth. Afzal Guru Judgement is also erronous judgment. There is a point in filing a mercy pitition that Afzal is not directly involved in the Parliament Attack or he is not arrested at Parliament compound with a gun. No attackers were survived at that and all are killed. This judgement was awarded during the executive office of Dr. APJ abdul Kalam, BJP's president and mercy petition should have refused at that time. As in the above article, Afzal's guru case should be re-addressed by SC, and find whether there is error or political influence is meeted out by the BJP/NDA government at that time. Simply talking and alleging does not bring any solution to this Afzal Guru. Why BJP or Jayesh not commenting on the mercy petition and High Court order on Rahiv Gandhi assasination case??????

from:  Ibrahim Hussain
Posted on: Dec 10, 2012 at 17:58 IST

In my perspective, death sentence is a waste exercise. In any
situations, the objective of the punishments is to correct the convict
of his wrongful path as well as deter the rest of the populace from
committing a similar crime. However, that has not so far deterred the
criminals and terrorists so far. For example in the case of Kasab,
what result have we achieved by his execution - nothing! However, a
death sentence on his handlers and trainers followed by a subsequent
execution would deter future acts of terrorism. 33% of our
parliamentarians have criminal case pending against them but they
continue with impunity because they are sure they can bribe or kill or
use anything in their arsenal (incl.police) to continue their
activities unhampered and make the poor victims. In the case of Afsal
Guru, again the communal politics is in full glare. However, what'd we
achieve by his death. Instead, wouldn't be wise to use his days in
light to our advantage....?

from:  Bharat
Posted on: Dec 10, 2012 at 16:17 IST

I can hardly make a judgement whether Death Sentence is a good idea or not. But what I can definitely say this punishment should not influenced by Politics.
Take case of Afzal Guru - our Home Minister says on record his file of mercy plea will be cleared in 72 hours. Nothing has been done on it so far. One reason is one of the government constituents from J&K has reservation about his execution.
There can be more such examples where files of mercy plea are dragged by governments .... read as politicians.
If it is Supreme Court judgement it must be followed and dragged for execution for ever. At least clear mercy plea ...... this dragging of feat is not good for our democracy.

from:  Jayesh
Posted on: Dec 10, 2012 at 13:33 IST

The author has elaborately explained the factors to be considered
before imposing a death penalty.It is true that some cases are
erroneously judged.Such cases need to be taken up again and
scrutinized based on balance sheet theory which apparently will lead
to commuting of death sentences.The executive should come forward and
identify these cases and refer it to the learned judiciary for
reconsideration.Keeping the convicted in the danger zone arbitrarily
will only ruin the morale of the person.But it doesnt mean that death
penalty as a whole be repealed.Death penalty is necessary to punish
the criminal when the magnaitude of the crime is humongous and the
mitigating factors are very weak to defend the convict.

from:  Shaik Rizwan Ahmed
Posted on: Dec 10, 2012 at 12:28 IST

Until political will intervenes to create a concrete death-penalty
policy ( or a 'no-death penalty' one), judiciary will beat around the
bush calling themselves 'helpless' and 'forced to prescribe death'.
Though the judiciary can creatively evolve a 'No DP' practice, it does
not have the courage to do so. The situation will change only when we,
the people begin to respect life....and death.

from:  Sridip Nambiar
Posted on: Dec 10, 2012 at 11:32 IST

The author should just say that Afzal Guru should not be hanged, instead of wasting so much time of his to make an indefensible case.

from:  Ashok Chowgule
Posted on: Dec 10, 2012 at 08:35 IST

One can understand one's disgust for capital punishment. No human being has the right to take the life of another. But the author loses all sympathy by comparing it with the other case.

from:  Venkat Raman
Posted on: Dec 10, 2012 at 02:00 IST
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