DEATH PENALTY vs LIFE IMPRISONMENT

Bachan Singh (supra) suggested selection of death punishment as the

penalty of last resort when, alternative punishment of life

imprisonment will be futile and serves no purpose

Incarceration, life or otherwise, potentially serves more than one sentencing

aims. Deterrence, incapacitation, rehabilitation and retribution - all ends are

capable to be furthered in different degrees, by calibrating this punishment in

light of the overarching penal policy. But the same does not hold true for the

death penalty. It is unique in its absolute rejection of the potential of convict

to rehabilitate and reform. It extinguishes life and thereby terminates the

being, therefore puts an end anything to do with the life. This is the big

difference between two punishments. Before imposing death penalty,

therefore, it is imperative to consider the same.

When the Constitution Bench of this Court, by a majority, upheld the

constitutional validity of death sentence in Bachan Singh v. State of

Punjab this Court took particular care to say that death sentence shall not

normally be awarded for the offence of murder and that it must be confined to

the rarest of rare cases when the alternative option is foreclosed. In other

words, the Constitution Bench did not find death sentence valid in all cases

except in the aforesaid freaks wherein the lesser sentence would be, by any

account, wholly inadequate. In Machhi Singh v. State of Punjab a three-Judge

Bench of this Court while following the ratio in Bachan Singh case laid down

certain guidelines among which the following is relevant in the present case:

(SCC p. 489, para 38) "(iv) A balance-sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so the mitigating

circumstances have to be accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating circumstances before the

option is exercised."

Court is duty bound by virtue of Bachan Singh (supra) to equally consider both

and then to arrive at a conclusion as to respective weights to be accorded. We

are also bound by the spirit of Article 14 and Article 21which forces us to adopt

a principled approach to sentencing. This overarching policy flowing from

Bachan Singh (supra) applies to heinous crimes as much as it applies to

relatively less brutal murders. The court in this regard held:

"Judges should never be bloodthirsty. Hanging of murderers has never been

too good for them. Facts and figures albeit incomplete, furnished by the Union

of India, show that in the past Courts have inflicted the extreme penalty with

extreme infrequency - a fact which attests to the caution and compassion

which they have always brought to bear on the exercise of their sentencing

discretion in so grave a matter. It is, therefore, imperative to voice the concern

that courts, aided by the broad illustrative guidelines indicated by us, will

discharge the onerous function with evermore scrupulous care and humane

concern, directed along the highroad of legislative policy outlined inSection

354(3), viz., that for persons convicted of murder, life imprisonment is the

rule and death sentence an exception."

 Article 14 & 21:

We are governed by the dictum of Bachan Singh (supra) according to which

life imprisonment is the rule and death punishment is an exception. We are

also governed by the Constitution of India. Article 14 and 21 are constitutional

safeguards and define the framework for state in its functions, including penal

functions. They introduce values of institutional propriety, in terms of

fairness, reasonableness and equal treatment challenge with respect to

procedure to be invoked by the state in its dealings with people in various

capacities, including as a convict. The position is, if the state is precariously

placed to administer a policy within the confines of Article 21 and 14, it should

be applied most sparingly. This view flows from Bachan Singh (supra) and it

this light, we are afraid that Constitution does not permit us to take a re-look

on the capital punishment policy and meet society's cry for justice through this

instrument.

 Judicial and Public opinion while awarding death

An inherent problem with consideration of public opinion is its

inarticulate state. Bachan Singh (supra) noted that judges are ill-

equipped to capture public opinion:

"125. Incidentally, the rejection by the people of the approach adopted by the

two learned Judges in Furman, furnishes proof of the fact that judicial opinion

does not necessarily reflect the moral attitudes of the people. At the same

time, it is a reminder that Judges should not take upon themselves the

responsibility of becoming oracles or spokesmen of public opinion: Not being

representatives of the people, it is often better, as a matter of judicial restraint,

to leave the function of assessing public opinion to the chosen representatives

of the people in the legislature concerned.

Justice Powell's dissent in Furman (supra) also bears repetition in this regard:

"But however one may assess amorphous ebb and flow of public opinion

generally on this volatile issue, this type of inquiry lies at the periphery not

the core of the judicial process in constitutional  cases. The assessment of

popular opinion is essentially a legislative, and not a judicial, function."

Capital sentencing is one such field where the safeguards continuously take

strength from the Constitution, and on that end we are of the view that public

opinion does not have any role to play. In fact, the case where there is

overwhelming public opinion favouring death penalty would be an acid test of

the constitutional propriety of capital sentencing process.

Reference was made to a catena of cases which deals with differing aspects to

be taken into consideration while awarding DP(detailed discription is in the

judgement)

 Panchhi v. State of U.P., [(1998) 7 SCC 177]

 In State of Maharashtra v. Sindhi, [(1975) 1 SCC 647]

 Vashram Narshibhai Rajpara v. State of Gujarat [(2002) 9 SCC 168]

 Om Prakash v. State of Haryana, [(1999) 3 SCC 19]

 Dharmendrasinh v. State of Gujarat, [(2002) 4 SCC 679]

While dealing with a matter as to whether death penalty should be awarded or

not, although the court ordinarily would look to the precedents, but, this

becomes extremely difficult, if not impossible, in the context of the cases

discussed above. There is no uniformity of precedents, to say the least. In most

cases, the death penalty has been affirmed or refused to be affirmed by us,

without laying down any legal principle.

In the aforementioned backdrop, we may notice a recent three-Judge Bench

decision of this Court in Swamy Shraddananda @ Murali Manohar Mishra

(supra). Aftab Alam, J., writing the judgment for the Three-Judge Bench held:

"33. The truth of the matter is that the question of death penalty is not free

from the subjective element and the confirmation of death sentence or its

commutation by this Court depends a good deal on the personal predilection

of the judges constituting the bench.

34. The inability of the Criminal Justice System to deal with all major crimes

equally effectively and the want of uniformity in the sentencing process by the

Court lead to a marked imbalance in the end results. On the one hand there

appears a small band of cases in which the murder convict is sent to the

gallows on confirmation of his death penalty by this Court and on the other

hand there is a much wider area of cases in which the offender committing

murder of a similar or a far more revolting kind is spared his life due to lack of

consistency by the Court in giving punishments or worse the offender is

allowed to slip away unpunished on account of the deficiencies in the Criminal

Justice System. Thus the overall larger picture gets asymmetric and lop-sided

and presents a poor reflection of the system of criminal administration of

justice. This situation is matter of concern for this Court and needs to be

remedied."

When Judges, acting individually or collectively, in their benign anxiety to do

what they think is morally good for the people, take upon themselves the

responsibility of setting; down social norms of conduct, there is every danger,

despite their effort to make a rational guess of the notions of right and wrong

prevailing in the community at large and despite their intention to abide by

the dictates of mere reason, that they might write their own peculiar view or

personal predilection into the law, sincerely mistaking that changeling for

what they perceive to be the Community ethic. The perception of 'community'

standards or ethics may very from Judge to Judge.."

 BALANCE SHEET THEORY:

Yet as the above discussion has clearly shown, it is now clear that even the

balance-sheet of aggravating and mitigating circumstances approach invoked

on a case by case basis has not worked sufficiently well so as to remove the

vice of arbitrariness from our capital sentencing system. It can be safely said

that the Bachan Singh threshold of "rarest of rare cases" has been most

variedly and inconsistently applied by the various High Courts as also this

court. At this point we also wish to point out that the uncertainty in the law of

capital sentencing has special consequence as the matter relates to death

penalty - the gravest penalty arriving out of the exercise of extraordinarily

wide sentencing discretion, which is irrevocable in nature. This extremely

uneven application of Bachan Singh (supra) has given rise to a state of

uncertainty in capital sentencing law which clearly falls foul of constitutional

due process and equality principle. The situation is unviable as legal discretion

which is conferred on the executive or the judiciary is only sustainable in law if

there is any indication, either though law or precedent, as to the scope of the

discretion and the manner of its exercise. There should also be sufficient

clarity having regard to the legitimate aim of the measure in question.

Constitution of India provides for safeguards to give the individual adequate

protection against arbitrary imposition of criminal punishment.

 NOTION OF CAPITAL PUNISHMENT IN THE

Although these questions are not under consideration and cannot be

addressed here and now, we cannot help but observe the global move away

from the death penalty. Latest statistics show that 138 nations have now

abolished the death penalty in either law or practice (no executions for 10

years). Our own neighbours, Nepal and Bhutan are part of these abolitionist

nations while others including Philippines and South Korea have also recently

joined the abolitionist group, in law and in practice respectively. We are also

aware that on 18 December 2007, the United Nations General Assembly

adopted resolution 62/149 calling upon countries that retain the death penalty

to establish a worldwide moratorium on executions with a view to abolishing

the death penalty.

India is, however, one of the 59 nations that retain the death penalty. Credible

research, perhaps by the Law Commission of India or the National Human

Rights Commission may allow for an up to date and informed discussion and

debate on the subject.

(For recent development refer:

https://en.wikipedia.org/wiki/Capital_punishment#Abolition_of_capital_punishment)

 ISSUE OF LEGALITY OF SECTION 302 IPC:

At the very outset Bachan Singh (supra) delineated the scope of the matter in

the following terms:

"The principal questions that fall to be considered in this case are:

(i) Whether death penalty provided for the offence of murder in Section

302, Penal Code is unconstitutional.

(ii) If the answer to the foregoing question be in the negative, whether the

sentencing procedure provided in Sec. 354(3) of the Code of Criminal

Procedure, 1973 is unconstitutional on the ground that it invests the Court

with unguided and untrammeled discretion and allows death sentence to be

arbitrarily or freakishly imposed on a person found guilty of murder or any

other capital offence punishable under the Indian Penal Code with death or, in

the alternative, with imprisonment for life."

In the ensuing discussion, the court held that Sections 302 Penal Code and

354(3) of the Code of Criminal Procedure, 1973 are constitutional but only

after enunciating "broad guidelines and principles" which today

govern the practice on capital sentence in all courts, be it trial courts or the

appellate courts.

(recent surveys and reports in the news can help us to satisfy how these guidelines are

Jeremy Bentham, in ‘An Introduction to the Principles of Morals and

Legislation 281 (1948)’ opined The reasons which are accorded by the

court to justify the punishment should be able to address the questions

relating to fair distribution of punishment amongst similarly situated convicts.

This may be called the problem of distributive justice in capital sentence.

In this context, the inquiry under Article 14becomes significant. Fairness in

this context has two aspects:

First refers to fair distribution amongst like offenders And the second relates

to the appropriate criteria for the punishment. The sentencing process, based

on precedents around Bachan Singh (supra), should help us to determine

specific, deserved sentences in particular cases. The reason as to why

questions of justice play such an important part in the distribution of capital

punishment, lies in the special nature of capital punishment itself. Distributive

justice is a relative notion: one can never determine whether one has received

one's fair share except by comparison with that which has been allocated to

others. Both questions are intertwined when we speak of Capital Sentence.

A survey of the application of Rarest of rare doctrine in various courts will

reveal that various courts have given their own meaning to the doctrine. This

variation in the interpretation of Rarest of rare analysis may amount to be

constitutionally infirm because of apparent arbitrariness on the count of

content of the doctrine.

The moot question is whether, after more than quarter of a century since

Bachan Singh (supra) recognized death penalty as a constitutionally

permissible penalty, we can distill a meaningful basis from our precedent on

death penalty, for distinguishing the few cases in which the capital sentence is

imposed from the many cases in which it is not? A similar question was put by

Justice Stewart in Furman (supra). He noted death sentences are cruel and

unusual in the same way as being "struck by lightning is cruel and unusual".

Moreover, the petitioners sentenced to death were seen as "capriciously

selected random handful" and the question posed was whether the eighth

amendment could tolerate death sentences "so wantonly and so freakishly

imposed." Today, it could be safely said in the context of Indian experience on

death penalty that no standards can be culled out from the judge made law

which governs the selection of penalty apart from broad overall guideline of

Rarest of rare under Bachan Singh (supra).

Frequent findings as to arbitrariness in sentencing under section 302 may

violate the idea of equal protection clause implicit under Article 14 and may

also fall foul of the due process requirement under Article 21. It is to be noted

that we are not focusing on whether wide discretion to choose between life

imprisonment and death punishment under section 302 isconstitutionally

permissible or not. The subject-matter of inquiry is how discretion

under section 302 may result in arbitrariness in actual sentencing. Section

302 as held by Bachan Singh (supra) is not an example of law which is

arbitrary on its face but is an instance where law may have been arbitrarily

administered.

In Swamy Shraddananda v. State of Karnataka (Swamy Shraddananda

- I) [(2007) 12 SCC 288] this court noted arbitrariness-in-fact prevalent in the

capital sentencing process with extraordinary candour:

"Coupled with the deficiency of the Criminal Justice System is the lack of

consistency in the sentencing process even by this Court. It is noted above that

Bachan Singh laid down the principle of the Rarest of rare cases. Machhi

Singh, for practical application crystallised the principle into five definite

categories of cases of murder and in doing so also considerably enlarged the

scope for imposing death penalty. But the unfortunate reality is that in later

decisions neither the Rarest of rare cases principle nor the Machhi Singh

categories were followed uniformly and consistently. In Aloke Nath Dutta

v. State of West Bengal [2006 (13) SCALE 467] Sinha J. gave some very

good illustrations from a number of recent decisions in which on similar facts

this Court took contrary views on giving death penalty to the convict (see

paragraphs 154 to 182, pp.504-510 SCALE). He finally observed that `courts

in the matter of sentencing act differently although the fact situation may

appear to be somewhat similar' and further `it is evident that different

benches had taken different view in the matter'. Katju J. in his order passed in

this appeal said that he did not agree with the decision in Aloke Nath Dutt in

that it held that death sentence was not to be awarded in a case of

circumstantial evidence. Katju J. may be right that there can not be an

absolute rule excluding death sentence in all cases of circumstantial evidence

(though in Aloke Nath Dutta it is said `normally' and not as an absolute rule).

But there is no denying the illustrations cited by Sinha J. which are a matter of

 The same point is made in far greater detail in a report called, "Lethal Lottery,

The Death Penalty in India" compiled jointly by Amnesty International India

and Peoples Union For Civil Liberties, Tamil Nadu & Puducherry. The report

is based on the study of Supreme Court judgments in death penalty cases from

1950 to 2006. One of the main points made in the report (see chapter 2 to 4) is

about the Court's lack of uniformity and consistency in awarding death

sentence.

 The truth of the matter is that the question of death penalty is not free from

the subjective element and the confirmation of death sentence or its

commutation by this Court depends a good deal on the personal predilection

of the judges constituting the bench.

The inability of the Criminal Justice System to deal with all major crimes

equally effectively and the want of uniformity in the sentencing process by the

Court lead to a marked imbalance in the end results. Thus the overall larger

picture gets asymmetric and lop-sided and presents a poor reflection of the

system of criminal administration of justice. This situation is matter of

concern for this Court and needs to be remedied.

3. Justice Verma Commission on the issue of Death

Regarding the demand from many quarters, the Verma committee reacted as

 “ In our considered view, taking into account the views expressed on the

subject by an overwhelming majority of scholars, leaders of women’s’

organization and other stake holders, there is a strong submission that seeking

of death penalty would be a regressive step in the field of sentencing and

reformation. We, having bestowed considerable thought on the subject, and

having provided for enhanced sentences (short of death) in respect of the

above aggravated forms of sexual assault, in the larger interests of society, and

having regard to the current thinking in favour of abolition of the death

penalty , and also to avoid the arguments of any sentencing arbitrariness, we

are not inclined to recommend the death penalty.”

CONCLUSION

Scope of Article 21: IN CONSTITUTION OF INDIA BY PM BAKSHI

Article 21, if read literally, is a colourless article and would be satisfied, the

moment it is established by the state that there is a law which provides a

procedure which has been followed by the impugned action. But the

expression ‘procedure established by law’ in Article 21 has been

judicially construed as meaning a procedure which is reasonable,

fair and just.

The manner in which death sentences are awarded shows gross violation of

this procedure established by law. The link below is recent news report on a

study conducted by the Law Commission of India and NLU Delhi which points

out the disparities while awarding the punishment of death sentence in India

http://timesofindia.indiatimes.com/india/Heres-proof-that-poor-

get-gallows-rich-mostly-escape/articleshow/48151696.cms