by Akhil Deo
The trial of Yakub Memon, who was convicted for the 1993 blasts in Mumbai, and his subsequent execution has again re-invigorated the debate that surrounds the death penalty, raising interesting questions regarding the constitutional and criminal procedure that attempts to safeguard the interests of those on ‘death row.’
Article 21 of the Indian Constitution guarantees in the fundamental right to life and liberty, however it is subjected to “procedure established by law” In Maneka Gandhi v. Union of India ((1978) 1 SCC 248), the Supreme Court famously held that the phrase “procedure established by law appearing” in Article 21 of the constitution must be read as “due process”, finding that the process as such must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive. Over past few years the Supreme Court has dealt with various facets of the death penalty, including cases that attempt to guard the rights the convict on death row. This essay offers a brief primer on the Supreme Courts jurisprudence on the death penalty and examines what the case for its abolition is.
Bachan Singh and the ‘rarest of the rare’ doctrine
In Bachan Singh v. State of Punjab ((1980) 2 SCC 684), the Supreme Court upheld the constitutionality of the imposition of the death sentence under section 302 of the IPC, 1860 and the sentencing procedure embodied in sub-section (3) of section 354 of the Cr.P.C., 1973. The Court held that, “in fixing the degree of punishment or making the choice of sentence for various offences… the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.” The Court concluded that , “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
Subsequently, in Macchi Singh Vs. State of Punjab, (1983) 3 SCC 470) the Court elaborated upon its judgment in Bachan Singh and introduced a balance sheet approach which required the court to weigh aggravating and mitigating circumstances, each of which related only to the crime; These include the motive; the manner of commission; the magnitude; the anti-social or abhorrent nature of the crime; and the personality of the victim. The Court also held that “when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
The Court’s ruling in Macchi Singh had invariably created tension in the rarest of the rare doctrine. For example, the Court in Ravji v. State of Rajasthan held that only the characteristics relating to crime, to the exclusion of the characteristics relating to the criminal were relevant for sentencing in a criminal trial. Besides simply departing from Bachan Singhs refusal to standardize the concept of rarest of the rare, the Court in Macchi Singh also paved the way to factor in ‘societies cry for justice’ as a relevant factor in the sentencing procedure. In fact the Supreme Court has already observed that “in attempting to standardize and categorize crimes, Machhi Singh considerably enlarged the scope for imposing death penalty that was greatly restricted by Bachan Singh.”(Swamy Shraddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767)
The Supreme Court on the death row and due process
While upholding the constitutionality of the death sentence, the Supreme Court has also reaffirmed the need for procedural fairness throughout the trial stage and during sentencing-finding that Sections 253(2) and 354(3) of the CrPC embody the concept of procedure established by law and that strict compliance with these provisions is a must. (Yakub Memon v. State of Maharasthra, (2013) 13 SCC 1) Even while characterizing the nature of the Supreme Courts review jurisdiction it has held that the Court must ensure that ” the decision making process survives the special rigors of procedural justice applicable.” (Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 41)).
The contours of procedural justice however are unclear and continue to evolve, primarily through judicial decision making. A few of the Courts recent rulings with respect to procedural safeguards are discussed below:
(a)Right to fair hearing and judicial review.
In Mohd. Arif v. Registrar, Supreme Court of India ((2014) 9 SCC 737), the Supreme Court held that a review petition with respect to death penalty cases must be heard in open court by a bench of three judges, despite Rule Order XL, Rule 3 of the Supreme Court Rules permitting such cases to be heard in the judge’s chambers. The Court required a higher degree of procedural scrutiny for such review petitions, reasoning that:
“… when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure”
In Anil v. State of Maharasthra ((2014) 4 SCC 69)the Court held that courts are duty-bound to collect additional evidence relating to possibility of reformation, rehabilitation and criminal past of the convict to impose appropriate sentence under S. 354(3) of the CrPC .Earlier, In Dalbir Singh v. State of Punjab, the Court struck down provisions of the Arms Act which imposed a mandatory death sentence, holding that any provision which limits the exercise of discretion by the judiciary is violative both of the convicts procedural rights under Article 21 and the courts power of judicial review.
In Triveniben v. State of Gujarat ((1989) 1 SCC 678) a constitutional bench of the Supreme Court held that a delay in considering the mercy petition of a death row convict was grounds for commutation of his sentence, cautioning however that it must continue to be seen in the context of the crime and that no fixed time limit should be prescribed. Later in Devendra Pal Bhullar v. NCT, the Court, while considering whether delay under Articles 72 or 161 is grounds for commutation, upheld its reasoning in Triveniben. However, the Court also held that this would not apply to TADA cases, finding that, ” It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death.”
Recently, the Court in Shatrughan Chauhan v. Union of India((2014) 3 SCC 1), overruled its judgement in Bhullar and held that,
“we are of the cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence… the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive…”
The Court laid down further guidelines with respect to the rights of a convict on death row, such as:
- free legal aid to death row convicts
- no solitary confinement
- provision of all relevant material to the President for a speedy disposal of the mercy petition
- communication of rejection of mercy petition
- a minimum fourteen day period between rejection and execution to give the convict time to meet his family
- post mortem: to ascertain the cause of death (instant breaking of neck or long strangulation)
(c) Reasonable notice and availability of remedies
In Shabnam v. Union of India (2015), the Supreme Court held that death warrants which were signed by the Sessions Judge in haste after a confirmation of the death sentence and without waiting for the exhaustion of other remedies available to the convict was violative of the due process requirements under Article 21. Adding to Shatrugan Chauhan, the Court laid down further guidelines with respect to issuing a death warrant:
- that a convict be given prior notice of the death warrant proceeding;
- that the warrant specify the exact date and time of execution and not a range of dates;
- that a reasonable period of time be fixed between the date of the order on the warrant and the date set for execution to enable the convict to meet his family and pursue legal remedies;
- that a copy of the execution warrant be made available to him;
- and that he/she be given legal aid at these proceedings.
A case for abolition?
During the course of Yakub Memons review and curative petitions, the chorus for abolishing the death penalty grew louder and louder. These are some of the arguments that were made:
Even a brief review of the Supreme Courts jurisprudence on the ‘rarest of the rare’ doctrine will reveal the principle has been applied inconsistently over the past two decades. The Court itself has taken note of this dilemma in Santosh Kumar Bariyar Vs. State of Maharashtra ((2009) 6 SCC 498)
In Bariyar, the Court was more rigorous in the application of Article 14 and 21, finding that, “We share the Court’s unease and sense of disquiet in Swamy Shraddananda (2) and agree that a capital sentencing system which results in differential treatment of similarly situated capital convicts effectively classifies similar convicts differently with respect to their right to life under Article 21.” More significantly, the Court was also critical of its own approach in several prior decisions which were decided without taking note of the social background of the criminal, which violated the Courts ratio in Bachan Singh, finding that its own judgment in Ram Chandra (supra) was per incuriam (meaning that it failed to abide by precedent), prompting several jurists to petition the government to commute the sentences of 13 persons in seven different cases to life imprisonment. The Court finally concluded that:
” 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… This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty incapital sentencing law which clearly falls foul of constitutional due process and equality principle.”
Apart from the rarest of the rare doctrine, the Courts have also justified the imposition of the death sentence on the basis of the ‘collective consciousness’ of the people, which as Surhit Parthsarthy argues, was applied just as arbitrarily as the rarest of the rare doctrine, often leading to a situation where cases with similar facts were decided almost diametrically opposite to each other.
Recently, In Sangeet v. State of Haryana, ((2013) 2 SCC 452) the Court was more directly critical of the application of the Macchi Singh ratio over the years, re-affirming the principle laid down in Bachan Singh that apart from the circumstances that surround the criminal, the circumstances of the criminal must also be taken into consideration. The Court found that “..omission to follow Bachan Singh case approach in subsequent cases uniformly, has rendered sentencing process Judge-centric rather than a principled one – Hence, this aspect needs fresh look.” .
(b) No procedural framework for the executive
In Shankar Kisanrao Khade v. State of Maharashtra, the Court noted that in Judiciary and the executive have different standards with respect to a convict on death row the Court observed that:
” While the standard applied by the judiciary is that of the rarest of rare principle (however subjective or Judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known”.
The power to pardon, given to the president and governor under Article 72 and 161 respectively, also pose problems of their own- there is an absence of any guidelines. The best example perhaps is the case of In Mahendra Nath Das v. Union of India((2013) 6 SCC 253), were the Supreme Court commuted the death sentence of a convict on account of a 12 year delay during the consideration of his mercy petition by the President under Article 72. The Court was critical of the executive for failing to inform the President of the fact that his predecessor had considering commuting the sentance.
In fact, a constitutional bench of the Supreme Court is currently hearing arguments on the issue of the powers of the President and Governor to grant mercy as well as the determination as to who is the appropriate government to commute the sentences under various provisions of the CrPC. The Court is further hearing arguments on the length of the sentence and whether it can take away the power of the executive to grant remissions, reprieve, or commutations.
(c) Crisis in the Trial Courts and Disparate Impact
With the Supreme Court unclear on its own stance with respect to the sentencing procedure, it is unsurprising that the trial courts have been liberal with handing out the death penalty. Recently, The Hindu reported that of the 1,790 death sentences handed down by trial courts in the last 15 years, only five percent have resulted in convictions. Further as a result of prolonged litigation, the accused end up as under-trials for significant periods of time.
These circumstances are aggravated by the fact that the death sentence is handed out disproportionately to accused belonging to marginalized communities, including lower castes and religious minorities, who in turn cannot afford adequate legal representation and are often subject to custodial abuse, while being kept dark about their own proceedings before Court. The Court has recently re-affirmed the need to take into consideration the socio-economic background of the accused, finding that, “Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible.” (Sunil damodar dakiwad v state of maharastra, (2014) 1 SCC 129)
Some of the Courts recent judgments, particularly Shabnam and Shatrugan Chauhan, might help prevent instances of secret hangings such as Ajmal Kasab or Afzal Guru, however the larger debate surrounding of the death penalty should not have to be limited to its morality . While the question of deterrence and its actual utility remains at large , it is also important to consider whether or not the existing substantive and procedural framework is capable of surviving the rigours that our constitution demands.
Beginning from the investigations, which are often conducted amidst allegations of religious or caste bias, upto the actual sentencing itself, which are often stayed or delayed for convicts who enjoy political patronage, it is apparent that our state institutions cannot fully commit to a ‘free and fair trial’. Even the judiciary is not free from blame, the chaos prevalent in the Supreme Courts on jurisprudence on the matter ultimately trickles down the lower courts as well.
Akhil Deo is a fourth year student at HNLU