CAPITAL PUNISHMENT – RETENTION OR ABOLITION


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Crimes punishable with death or life imprisonment under IPC are

(1) Waging was against the Government of India. (S. 121)
(2) Abetting mutiny actually committed (S. 132)
(3) Giving or fabricating false evidence upon which an innocent person suffers death. (S. 194)
(4) Murder which may be punished with death or life imprisonment (S. 302)
(5) Abetment of suicide of a minor on insane, or intoxicated person. (S. 305)
(6) Dacoity accompanied with murder. (S. 396)
(7) Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (S. 307)

Other crimes punishable with death term in India fall under

Commission of Sati (Prevention Act) 1987 Explosive Substances Act, 1908 Petroleum and Minerals Pipelines (Acquisition of right of user in land) Act 1962 Unlawful Activities (Prevention) Act 1967 Narcotic Drugs and Psychotropic Substances (NDPS) 1985 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 Maharashtra Control of Organised Crime Act, (MCOCA) 1999 Karnataka Control of Organised Crime Act, 2000 Andhra Pradesh Control of Organised Crime Act, 2001 The Prevention of Child Sexual Offences Act, (POCSO) 2012 Anti Hijacking Act, 2016 and other martial laws
 
Left ambiguous and vague, the law of sedition came to good use for the country’s rulers as a method of crowd control, in a way. Open to ambiguous interpretation with an added clause, it was used to famously smack down the dissenting‟ Bal Gangadhar Tilak, and later, in prosecuting Mahatma Gandhi in 1922. “Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” said Mahatma Gandhi, in response to the charges against him, and he couldn‟t have been more correct.

Constitutionality of s. 302

The first case where the constitutionality of S. 302 was challenged was Jagmohan Singh v. Uttar Pradesh AIR 1973 SC 947. The validity of death sentence was first time challenged on ground that it was violative of Arts. 19 and 21 because it did not provide any procedure. It was contended that the procedure prescribed under Criminal Procedure Code was confined only to findings of guilt and not awarding death sentence.
 
A 5 member Bench of the Court held that capital punishment was not violative of Arts. 14, 19 and 21 and was therefore constitutionally valid. The Judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial. The impossibility of laying down standard (in the matter of sentencing) is at the very core of criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment and that this discretion in the matter of sentence is liable to be corrected by superior courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. Hon’ble Supreme Court relied on 35th Law Commission Report in 1967.High-powered body summed up its conclusions at page 354 of its Report, as follows:
 
The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind. It is difficult to rule out the validity of the strength behind many of the arguments for abolition nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. In Ediga Anamma v. State of A.P., (1974) 4 SCC 443, the Court holds that the unusual brutality of a crime would be a factor to award the death sentence.

In Santa Singh v. State of Punjab (1976) 4 SCC 190, the Court noted that the mandatory pre- sentencing hearing was ‘in consonance with the modern trends in penology and sentencing procedures' and commented on what such hearings were meant to achieve;
 
"A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home, life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrent in respect to the particular type of sentence."

UNCERTAINTIES WHILE AWARDING DEATH SENTENCE

In Rajendra Prasad v. State of U.P AIR 1979 SC 916, Krishna Iyer, J., held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society. Section 302 of the IPC throws little light on when the court shall award the sentence of the lesser penalty. Since law reflects life, new meanings must permeate the Penal Code.
 
The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not in other cases, within the confines of the Code. Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued resort to the death sentence mirrors the uncertainties and conflicts of values in the community itself. Section 302 of the IPC throws little light on when the court shall be the sentence of why the lesser penalty shall be preferred. Since law reflects life, new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental to be permitted except on the gravest ground and under the strictest scrutiny.
 
Under S. 354, sub-s. (3) of the Code of Criminal Procedure, 1973,
 
the Court is required to state the reasons for a sentence awarded, and in the case of imposition of a sentence of death the Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be life imprisonment and death sentence is only an exception. The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the governance of the country has a role to mould the sentence. If the murderous operation of a die- hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are-never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore social justice projected by Art. 38 colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14. This complex of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit killing in an intentional and organised way, are such categories in a Third World setting.

Such extraordinary grounds alone constitutionally qualify as special reasons as leave no option to the court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the situation, unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a bloodthirsty tiger, he has to emit his terrestrial tenancy. Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. Dissenting opinion of Justice A. P. Sen It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under Art. 136 of the Constitution, on a question of sentence, to restructure s. 302 of the Indian Penal Code,1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973, so as to limit the scope of the sentence of death provided for the offence of murder under s. 302.
 
The question whether the scope of the death sentence should be curtailed or not, is one for the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly the domain of the legislature, not the judiciary.

RAREST OF RARE CASE DOCTRINE

In Bachan Singh vs State Of Punjab AIR 1980 SC,After Cr.P.C. 1973, death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of Cr.P.C., it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh's Case and observed:- "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

The constitutional validity of the death penalty for murder provided in Section 302 of the Indian Penal Code, 1860 and the sentencing procedure embodied in section 354 (3) of the Criminal Code of Procedure, 1973 were upheld. Section 302 of the IPC states that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Section 354(3) of the CRPC states that when the conviction is for an offence punishable with the death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
However to the Contentions raised by Hon’ble Justice V.K Krishna Iyer in the case Rajendra Prasad v. State of Uttar Pradesh, that the provision of the Death penalty in section 302, IPC offends Article 19 and 21 of the constitution, the Supreme court observed that:
  • The fundamental rights guaranteed under Article 19(1) of the Constitution are not absolute. Firstly, they are subject to inherent restraints stemming from the reciprocal obligation of one member of society to so use his rights as not to Infringe or injure the similar rights of another. Secondly, under clauses 2 to 6 of Article 19 these rights have been expressly made subject to the power of the state to impose reasonable restrictions, which may extend to even prohibition, on the exercise of these rights.
  • Further, articles 20,21 and 22 are primarily concerned with the penal enactments of the other laws under which the personal safety or liberty of powers could be taken away in the interest of the society and they set down the limits within which the state control should be exercised.
  • That the special reasons necessary for imposing the death penalty as mentioned in section 354(3), CRPC, must relate not to the crime as such but to the criminal as well. For special reasons in that context, the court must pay due regard to both the crime and the criminal.
The court then dealt with the determination of the “special reasons” that need to be mentioned under section 354 (3) of the CRPC. It was observed that the special reasons need to be determined in light of the aggravating and mitigating factors. And, what is the relative weight to be given to the aggravating and mitigating factors would depend on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. For in a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability.
Drawing upon the penal statutes of the states in the USA framed after FURMAN vs GEORGIA, in general, and clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these “aggravating circumstances”:
 
A court may, however, in the following cases impose the penalty of its discretion:
  • If the murder has been committed after previous planning and involves extreme brutality, or
  • If the murder involves exceptional depravity; or
  • If the murder is of a member of any of the armed forces of the Union or of a member of any police servant and was committed- I. While such member or public servant was on duty; or
    II. In consequences of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of the murder he was such member or public, as the case may be, or had ceased to be such member or public servant; or
  • If the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the CRPC, 1973, or who had assisted a magistrate or a police officer demanding his aid or requiring his assistance under section 37 and section 129 of the said code.

Dr. Chitaley further suggested these mitigating factors:
 
Mitigating factors: In its discretion, the court shall take into account the following circumstances:
  1. That the offence was committed under the influence of extreme mental or emotional disturbance.
  2. The age of the accused. If the accused is young or old, he shall not be sentenced to death.
  3. The probability that the accused would not commit criminal acts of violence would constitute a continuing threat to society.
  4. The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove that accused does not satisfy the conditions 3 and 4 above.
  5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  6. That the accused acted under the duress or domination of another person.
  7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The Supreme court reached its conclusion that Death Penalty is to be awarded only in the rarest of rare cases and stated the following guidelines:
  1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
  2. Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
  3. Life imprisonment is the rule and death sentence is an exception.
  4. 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.

APPLICATION OF RAREST OF RATE DOCTRINE

After discussing the guidelines forwarded in Bachan Singh case, the Supreme court applied the aforementioned guidelines on Machhi singh vs. State of Punjab AIR 1983 SC 957, for deciding the sentence. A course of series of five incidents where a total no. of seventeen people were murdered occurred in succession in five different villages in Punjab, India on the night of 12th August 1977. A local man, Macchi Singh (accused), who was in a feud with one, Amar Singh (deceased), and his sister, Piaro Bai (deceased), planned and executed the Incidents. Seventeen people who lost their lives and other three who sustained injuries in the incidents were related to Amar Singh and his sister, Piaro Bai. Pertaining to the murder of seventeen people, Macchi Singh and his eleven companions were prosecuted in the five-session courts. Macchi Singh was the common defendant at each trial. After the trial proceeding, the accused found guilty were convicted under the appropriate provisions of the Indian Penal Code, 1860. Among the total accused, nine were awarded life imprisonment, while Macchi Singh and three others were sentenced to death.
 
In addition to the abovementioned guidelines, Hon’ble Justice Thakkar observed some further aspects as well to be taken into consideration while deciding on the decision of the death penalty:

  1. Manner of commission of murder -
    When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner as to arouse intense and extreme indignation of the community. For instance,
    • When the house of the victim is set aflame with the end in view o roast him alive in the house
    • When the victim is subjected to inhumane acts of torture or cruelty to bring about his or her death.
    • When the body of the victim is cut into pieces or his body is dismembered fiendishly.

  2. Motive for commission of murder -
    When the murder is committed for a motive which evinces total depravity and meanness.

  3. Anti-social or socially abhorrent nature of the crime -
    a) When the murder of a scheduled caste or minority community etc, is committed not for personal reasons but in circumstances which aroused social wrath.
    b) In cases of ‘bride burning’ and what are known as ‘dowry-deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

  4. Magnitude of crime -
    When the crime is enormous in proportion. For instance when multiple murders, or murder of all the members of a family or basically a genocide, is committed.

  5. 5. Personality of victim of murder -
    When the victim of murder is-
    a) An innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
    b) A helpless woman or a person rendered helpless by old age or infirmity
    c) When a victim is a person vis-a-vis whom the murderer is in a position of domination or trust
    d) When the victim is a public figure generally loved and respected by the community for the services rendered by him and the is committed for political or similar reasons other than personal reasons
 
Further, it was observed that in this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual where the question of imposing of death sentence arises. Thus, after applying the guidelines mentioned in the Bachan Singh case and giving its abovementioned reasons, the Supreme Court upheld the death penalty on Macchi Singh and other appellants imposed by the lower courts. The court held that the circumstances of the case reveal that it was a cold-blooded murder and the victims were helpless and undefended. The offence committed was of an exceptionally depraved and heinous character. The manner of its execution and its design put it at the level of extreme atrocity and cruelty. The court ruled that the alternative option of life imprisonment was unquestionably foreclosed.
 
The application of the sentencing policy through aggravating and mitigating circumstances came up for consideration in Swamy Shraddananda v. State of Karnataka [(2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] . On a review, it was concluded in para 48 of the Report that there is a lack of evenness in the sentencing process. The rarest of rare principle has not been followed uniformly or consistently. Reference in this context was made to Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 : (2008) 2 SCC (Cri) 264] which in turn referred to several earlier decisions to bring home the point. 31. The critique in Swamy Shraddananda [(2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] was mentioned (with approval) in Santosh Kumar Satishbhushan Bariyarv. State of Maharashtra [(2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] while sharing this Court's “unease and sense of disquiet” in paras 109, 129 and 130 of the Report. In fact, in para 109 of the Report, it was observed that: (Bariyar case[(2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] , SCC p. 543) “109. … 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 [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] threshold of ‘the rarest of rare cases’ has been most variedly and inconsistently applied by the various High Courts as also this Court.”

TESTS TO AWARD DEATH SENTENCE

In Irfan @ Bhayu Mevati Appellant(s) Versus State of Madhya Pradesh, Criminal Appeal Nos.1667-1668/2021, The Supreme Court has suo moto decided to consider laying down norms and guidelines pertaining to the process of collecting and scrutinising mitigation information in death penalty matters. A Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and P.S. Narasimha decided to issue notice to the Attorney General for India and Member Secretary, National Legal Services Authority (NALSA) before setting out the guidelines. It appointed Senior Advocate, Mr. Siddhartha Dave Advocate, Mr. K. Parameshwar to assist the Bench. Having granted the relief as prayed for, normally nothing further need be done in the matter. However, the issues raised in the application and the submissions made at the bar make us record following:-
    A. As laid down by this Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and in cases thereafter, every circumstance which has the potential of being a mitigating circumstance, while considering whether death sentence be imposed or not, must necessarily be considered by the Court. In order to assist the Court in making an informed decision, certain inputs either in the form of a Report of a Probation Officer or the circumstances which the defence may seek to highlight, must also be gone into.
    B. The Analysis and the Report made by a Probation Officer may, at times, not consider the complete profile of the accused and may be dependent upon 4 the interviews which the Probation Officer may have had almost at the fag end of the trial.
    C. On the other hand, if a competent person on behalf of the defence is given the facility of interviewing the accused right at the beginning of the trial, a comprehensive analysis can then be projected at a stage when the matter is considered from the standpoint whether death sentence be imposed or not.
    D. These observations are purely tentative and recorded only to facilitate the kind of hearing that this application may require.

 
In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 52, it was held that the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test).

R-R test depends upon the perception of the society that is “society-centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.


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