A report studies Supreme Court judgments in death penalty cases in India from 1950 to 2006 and uncovers many inconsistencies.

There is very little officially compiled information on the award of capital punishment in India. This makes the task of understanding the relationship between the punishment and the incidence of crime for which death could be awarded as punishment challenging. Add to this the phenomenon of conflicting judgments coming from trial and high courts and from the Supreme Court itself on the nature of the crimes that can attract this penalty, and the challenge facing the researcher is likely to be insurmountable.

A recent study, jointly produced by Amnesty International India and the People’s Union for Civil Liberties Tamil Nadu & Puducherry, fills the void and exposes the inconsistencies in these judgments. The report was researched and written by Bikram Jeet Batra, consultant to Amnesty International India. Part I, written by Dr. V. Suresh and D. Nagasaila of the PUCL-TN&P, sets the tone for the entire report with its focus on the need to re-examine the death penalty in India.

Part II of the report cites Prison Statistics India 2005, compiled by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, and states that there are 273 persons sentenced to death, as on December 31, 2005. But it does not clarify whether the figure refers to those whose sentences were passed by a trial court or those whose sentences were upheld by a High Court or the Supreme Court or whose mercy petitions were pending or had been rejected. In November 2006, Minister for Home Affairs Shivraj Patil told Parliament that there were 44 mercy petitions before the President, some of which had been pending from 1998 and 1999.

The NCRB states that there were 25 executions between 1995 and 2004. Twenty-four of these took place between 1995 and 1998, pointing to the fact that executions have decreased in the past decade. The NCRB has admittedly no data relating to the death penalty before 1995. The report cites a newspaper article (which itself refers to the 1967 Law Commission report) that suggests that at least 1,422 people were executed between 1954 and 1963 alone. The report notes that the Supreme Court admitted in judgments upholding the constitutionality of the death penalty that there had been no systematic study on whether this penalty was a greater deterrent to murder than the penalty of life imprisonment.

The research for this report involved the study of over 700 judgments reported in law journals between 1950 and 2006. In the first phase ending in 1975, the study found that Supreme Court judgments relied on a rather abstract phrase – “ends of justice” – to disguise the arbitrariness in the use of judicial discretion in sentencing. Thus, judgments regularly concluded with the mere assertion that the death sentence was being commuted or confirmed “to meet the ends of justice”. The study found that there were no clear, systematic principles governing sentencing.

In 1973, Parliament amended the Criminal Procedure Code (CrPC) to require judges to take note of “special reasons” when awarding the death sentence. The amended CrPC also required a mandatory pre-sentencing hearing in the trial court. It was, as the Supreme Court noted later, a “gradual swing against the imposition of such penalty”. The report found support to the thesis, advanced by a scholar (A. R. Blackshield) in an earlier study, that a key factor in determining a question of life or death was which judge heard the appeal. The report noted that all those convicts whose appeals were heard by a bench featuring Justice V.R. Krishna Iyer (who personally believes in the abolition of the death penalty) were more likely to receive a sympathetic hearing and even a suggestion of a presidential pardon, if not a commuted sentence. The amended CrPC could do little to limit this arbitrariness even though it perhaps ensured that the overall number of persons sentenced to death was reduced, the report observes.

Rarest of rare cases

The judgment of the Supreme Court’s Constitution Bench in Bachan Singh v. State of Punjab (1980), which limited the death sentence to the rarest of rare cases, reinforced the exceptional nature of the death penalty. This is what Parliament had secured by amending the CrPC. The requirement that the judge concerned weigh aggravating and mitigating factors added a new element to the sentencing process. A major innovation was the specific reference in the mitigating factors to the fact that the state had to establish – with evidence – that the accused was likely to commit a crime again and could not be reformed, before the death sentence could be awarded.

But as the report points out, this requirement was sometimes observed in the breach in cases where the Supreme Court confirmed the death penalty. The reason for this was the court’s flawed understanding that the non-fulfilment of this requirement alone could not undo all the aggravating factors such as the gravity and brutality of the crime. According to the report, the Bachan Singh formulation saved many from the gallows in the early 1980s, with the Supreme Court commuting sentences. In the mid-1980s and thereafter, however, the impact of the judgment and its guidelines was less impressive, says the report.

In Machhi Singh and others v. State of Punjab (1983), the Supreme Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh to cases where the “collective conscience” of a community may be shocked. But the bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances. In the post-Machhi Singh period, considerable inconsistency marked the Supreme Court’s judgments in death penalty cases. Thus, the court considered the age of the accused as a mitigating factor in some cases but not in others. Again, it found the gruesome nature of the crime sufficient to ignore the mitigating factors in a few cases but not in every case.

In an unusually candid judgment delivered on December 12, 2006, in Aloke Nath Dutta and ors. v. State of West Bengal, Justices S.B. Sinha and Dalveer Bhandari admitted the court’s failure to evolve a sentencing policy. They suggested that different criteria had been adopted by different benches of the Supreme Court for similar offences. The bench commuted the sentence in this case, asking the question: “No sentencing policy in clear-cut terms has been evolved by the Supreme Court. What should we do?” The report concludes: “Despite legislative reform and reform-minded jurisprudence over a number of years, the death penalty has continued to be a lethal lottery.”

The report, for instance, found that the Supreme Court had not upheld the death sentence in any dowry murder case brought before it. Although the court gave a variety of reasons for each commutation in such cases, the message is indeed disturbing even though the report has refrained as such from drawing any conclusions. Again, it is striking that the court has not upheld a death sentence in any case of rape and murder of an adult woman, while it has done so in a number of cases where the victim was a child.

However, the report noted that between 1999 and 2006, all rape and murder cases involving minors that came before the Supreme Court resulted in commutations. In one case (Akhtar v. State of Uttar Pradesh, 1999), Justices G.B. Pattanaik and Rajendra Babu commuted the sentence of death, finding that the death was unintentional and without premeditation as the victim died because she had been gagged while the rape was being committed. A similar approach was followed in Amrit Singh v. State of Punjab (2006), wherein the court held that the death occurred as a consequence of the rape and commuted the sentence. The judges reasoned that rape might be brutal, but it could have been a lapse on the appellant’s part on seeing a lonely girl at a secluded place, and therefore, it could not be said to be a rarest of rare case. Such reasoning not only smacks of gender insensitivity but strengthens the argument in favour of a clear sentencing policy.

It is deplorable how the court viewed the killings committed by a mob as a mitigating rather than an aggravating factor. In Kishori v. State of Delhi (1999), the court noted that the acts attributed to the mob of which the appellant was a member could not be stated to be the result of any organised, systematic activity leading to genocide, and commuted his sentence. In Manohar Lal alias Manu and anr. v. State (NCT) of Delhi (2000), the court, ignoring evidence that the attacks on Sikhs had been orchestrated, held that while the killings were most gruesome, the accused were berserk and “on a rampage, unguided by sense or reason and triggered by a demented psyche”, and commuted the sentence.

In view of these inconsistencies, the report calls for an immediate moratorium on executions, pending abolition of the death penalty in India. The report will have served its purpose if it leads to introspection within the legislature, the executive and the judiciary on the relevance of the death penalty in India.

Copyright © 2008, Frontline.