#India “Rarest of rare principle has not been followed uniformly.”Justice A.P. Shah #Deathpenalty

V. VENKATESAN, The Frontline

Interview with Justice A.P. Shah, former Chief Justice of the Delhi High Court.


“Rarest of rare principle has not been followed uniformly,” says Justice Ajit Prakash Shah. 

Justice Ajit Prakash Shah, former Chief Justice of the Delhi High Court, was one of the 14 former judges who sent an appeal to President Pranab Mukherjee to commute the sentences of nine death-row prisoners whom the Supreme Court admitted that it had erroneously sentenced to death. In this interview, he explains the significance of the Supreme Court’s judgment in the Sangeet case.

The Supreme Court has, for the second time (first time was in Swamy Shraddananda II), reiterated in ‘Sangeet’ that ‘Machhi Singh’ is inconsistent with the ‘Bachan Singh’ judgment and that many Supreme Court Benches had erroneously decided death penalty cases applying ‘Machchi Singh’ principles. How serious is this finding and how can the Supreme Court correct its error?

First, it is important to understand what was decided in the Bachan Singh judgment. The court identified the two issues to be decided as (i) whether the death penalty provided under Section 302 of the IPC [Indian Penal Code] is constitutional and (ii) whether the sentencing procedure provided for in Section 354(3) of the CrPC [Code of Criminal Procedure] gave the court unrestricted and unguided discretion, thereby allowing death sentences to be arbitrarily imposed.

With regard to the first issue, the majority ruling in Bachan Singh dismissed the challenge that the death penalty was unconstitutional, in violation of Articles 14, 19 and 21.

While answering the second issue, the court held that the normal rule is that the offence of murder shall be punished with a sentence of life imprisonment. However, the court can make a departure and impose the sentence of death only if there are special reasons for doing so and such reasons must be recorded in writing. The court laid down that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal. The concluding paragraph in the majority opinion in Bachan Singh limited the death sentence to the “rarest of rare cases” which showed the exceptional nature of the death penalty that Parliament had envisaged under the Criminal Procedure Code.

Thereafter, the Supreme Court gave the judgment in Machhi Singh’s case, where the Bench (of three judges) upheld three death sentences. This decision was seen by many as one supporting the death penalty since it appeared to expand the “rarest of rare formulation” beyond the aggravating circumstances in Bachan Singh to cases where the “collective conscience of a community may be shocked”. It further held that a “balance sheet of aggravating and mitigating circumstances” had to be drawn up and a just balance had to be drawn between the aggravating and mitigating circumstances.

The recent decision in Sangeet’s case criticises the decision of Machhi Singh by stating that aggravating and mitigating circumstances are two distinct and different elements and cannot be compared with each other. A balance sheet cannot be drawn up of two different constituents of an incident. In fact, this particular formulation was not accepted in Bachan Singh. Sangeet’s decision clearly notes that the rarest of rare principle has not been followed uniformly or correctly. Nevertheless, the balance sheet theory is still being applied by several courts, post Machhi Singh.

Earlier, the decision in Swamy Shraddananda’s case also criticised the theory laid down in Machhi Singh by holding that the balance sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently and has therefore failed to remove the vice of arbitrariness from our capital sentencing system. The Bachan Singh threshold of the rarest of rare cases has been applied most variedly and inconsistently by various High Courts as well as the Supreme Court. It appears that even though Bachan Singh intended “principled sentencing”, sentencing has now really become “judge-centric”.

In this context, it is important to refer to Justice [P.N.] Bhagwati’s dissenting judgment in Bachan Singh where he said that when a judge is called upon to decide whether an accused should be killed or permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and preconceptions and his value system and social philosophy. This renders the imposition of the death penalty arbitrary and capricious.

Now the only way to correct these contradictions and inconsistencies amongst different Benches is to refer the matter to a larger Bench. We must also be mindful of the changing global trends where most countries have abolished the death penalty in law or practice. As of June 2012, a total of 141 nations (which constitute over two-thirds of the countries in the world) had abolished the death penalty in law or practice. Europe is most death penalty-free, while in the Americas only some Caribbean states and the United States use the death penalty. Of the 54 countries in Africa, 38 are abolitionist in law or practice. Central Asia and the Pacific region are also death penalty-free.

‘Sangeet’ has also found that the ‘Ravji’ precedent was wrongly followed in more cases after ‘Bariyar’ first discovered it in 2009. You wrote an appeal along with 13 other judges pleading commutation for 13 convicts, the sentences of four of whom have been commuted already. Would you suggest that the five new convicts identified in ‘Sangeet’ also must get commutation?

In giving the solution of the rarest of rare cases for imposing the death penalty, the five-judge Bench of the Supreme Court gave sufficient weight to the mitigating circumstances of the crime and the criminal. However, the decision in Ravji, which was decided by two judges, held that it is the gravity of the crime and not the criminal which is relevant to decide the appropriate punishment. Thus, the decision in Ravji was in direct conflict with Bachan Singh. The court in Bariyar’s case noticed the conflict in these two decisions and held that seven of the decisions of the Supreme Court awarding death sentence were rendered per incuriam.

However, even after the decision in Bariyar, the courts still followed the precedent in Ravji’s case. Clearly, the two prisoners inRavji’s case who were wrongly sentenced to death were executed as a result of these flawed judgments, constituting the gravest known miscarriages of justice in the history of independent India. Therefore, it is extremely important and necessary that in order to prevent such miscarriages of justice, the five new convicts identified in Sangeet’s decision must also get commutation.

It appears that even the Kasab case was wrongly decided by the Supreme Court, applying the ‘Machhi Singh’ principle. Justice Aftab Alam, who wrote the judgment in the Kasab case, also wrote the three-judge Bench verdict in ‘Swamy Shraddananda II’ in 2008, which had held that ‘Machhi Singh’ conflicted with ‘Bachan Singh’. Your comments.

It was admitted by the judges in Swamy Shraddananda’s decision that the death penalty was not free from the subjective element and the confirmation of death sentence and its commutation by the Supreme Court depended a lot on the personal predilection of the judges constituting the Bench. The 2007 decision in Aloke Dutta’s case also expresses helplessness after noticing that different criteria have been adopted by different Benches of the Supreme Court where offences were similar in nature. No sentencing policy in clear-cut terms has been adopted by the Supreme Court. Amongst these varying decisions, one can witness several disturbing trends. There have been instances where similarly placed accused in identical circumstances in the same case have been given different punishments of life imprisonment and the death sentence because they had gone before different Benches. This was seen in the 1982 decision in Harbans Singh.

Also, there is a time-honoured principle of not confirming the death penalty if one of the judges on the Bench or any of the lower courts had either acquitted the accused or sentenced him to life imprisonment. However, in Krishna Mochi (2002) and again in Bhullar (2002), the Supreme confirmed the death sentences despite one of the judges on the Bench having acquitted the accused. In Kheraj Ram (2003) and Satish (2005), the Supreme Court imposed the death sentence on persons who had been acquitted by the High Courts. Justice Bhagwati pointed out that “judicial ad hocism or judicial impressionism dominates the sentencing exercise and infliction of death penalty suffers from the vice of arbitrariness”.

There are some death penalty cases decided by the Supreme Court which do not directly cite ‘Machhi’ or ‘Ravji’, but nevertheless adopt the approach followed in those cases. How do we correct these flaws?

These decisions may not cite Machhi or Ravji, but they do follow them in principle, making them equally flawed as Machhi andRavji. In these cases also, the death sentences are liable to be commuted to life imprisonment.

What is the significance of the term per incuriam? ‘Sangeet’ does not use this term, but will its findings, if applied, make those cases that adopted the ‘Ravji’ and ‘Machhi Singh’ principles per incuriam?

The expression ‘per incuriam’ means decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some binding judicial precedent. Although the decision in Sangeet does not use the term per incuriam, Sangeet clearly mentions that the principles laid down in Machhi and Ravji are inconsistent with the decision in Bachan Singh, which was given by a larger Bench. Therefore, due to this observation in Sangeet, the decisions in Machhi and Ravji are rendered per incuriam.

Do you support a moratorium on death sentences in view of these flaws in death sentencing?

Until the time there is a relook on this issue by a larger Bench, there should be a moratorium on death sentences. Justice Bhagwati rightly pointed out in Bachan Singh that the decisions of a judge regarding the imposition of the death penalty were based on several factors that were specific to the judge, including his personal predilections. The decision of the South African Constitutional Court in S. vs Makwanyane also holds that at every stage of process, there is an element of chance and the outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and attitude of the trial judge as well as the appellate judges, and lack of financial means to engage seasoned advocates. The decision admits that it is difficult to lay down a system which is perfect and avoids arbitrariness completely.

In this regard, it is also relevant to refer to the American experience with imposition of the death penalty. Three judges in the case of Gregg said that the death penalty experiment had failed and that the death penalty experiment was a discredit to the law because of its arbitrary and unprincipled use.

Should a commission be set up to identify flawed death sentences?

In the context of the interpretation of Section 27 of the Evidence Act, the Privy Council overruled the decision of the Madras High Court in Goundan’s case. Since a large number of prisoners were executed and many more were facing the gallows because of the interpretation of Section 27 in Goundan’s case, the Madras Presidency instituted a commission to examine all convictions based on the Goundan judgment, reprieved the sentences, and unconditionally released the prisoners.

However, a commission to identify death sentences given on wrong principles of law may not be necessary now since such cases have already been identified by the Supreme Court in Sangeet’s decision. In all such cases, the executive should consider commutation of the death sentence to life imprisonment.

In the U.S., the Supreme Court restored the death penalty in ‘Gregg vs Georgia’ (1976) after finding it unconstitutional in ‘Furman’ in 1972. The Indian Supreme Court last heard a challenge to the death penalty in 1992 in ‘Shashi Nayar vs Union of India’, but found that the time was inopportune to reconsider the law on the issue. The South African Constitutional Court found it unconstitutional in ‘S vs Makwanyane and Another’ in 1995. Has the time come for the Indian Supreme Court to reconsider the law on the subject?

The Supreme Court in Bachan Singh took a leaf out of the decision in Gregg and introduced the concept of aggravating and mitigating circumstances. Both the Benches in Bachan Singh and Gregg believed that the discretion to impose the death penalty following clear guidelines balancing aggravating and mitigating circumstances was sufficiently structured and excluded arbitrariness and inconsistency. Subsequent events have shown that this belief was completely misplaced. Even the decision in S vs Makwanyane, while holding the death penalty to be unconstitutional, admitted that it was very difficult to come up with clear criteria that would exclude arbitrariness completely. Therefore, the time is now right to have a complete review and reconsideration of the law on this subject.

What should be the principles that guide the exercise of mercy power under Article 72? Can the President consider erroneous death sentences as a ground to commute death sentences?

Once the judicial process has come to an end, there are two ways in which a convict can avoid execution by appealing to the executive. The first is commutation; the appropriate government can commute a death sentence under the provisions of the IPC and the CrPC. The second is a commutation or pardon granted by the President of India or the Governor of the relevant State under Article 72 and Article 161 of the Constitution of India. The second process is not constrained by the judicial verdict. Where the constitutional powers of clemency are involved, the extent of judicial review is extremely limited. The Supreme Court has observed in a number of cases that unless in extreme cases, the courts should not intervene in the exercise of powers of clemency by the Governor or the President.

The executive is vested with sufficient powers under Articles 72 and 161 to commute the death sentence of prisoners who have been wrongly sentenced to death by ignoring the position of law in Bachan Singh’s case.

Do you think the time has come for Parliament to substitute the death penalty with imprisonment for the entire life of the convict (without remission) in the rarest of rare cases?

India stands with Afghanistan, Pakistan and Bangladesh in holding on to the death penalty. We are one of the nations that retain the death penalty but rarely execute people. The criterion of the rarest of rare cases has not resulted in any satisfactory solution at all. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.

For this reason, the global trend is increasingly and overwhelmingly in favour of abolitionism. We would be deluding ourselves if we were to believe that the execution of a few persons sentenced to death will provide a solution to the unacceptably high rate of crime. In reality, capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure. Therefore, India should join the list of such abolitionists as the legal safeguards aimed at avoiding miscarriage of justice have failed to deliver. The decision to substitute the death penalty with imprisonment for the entire life (without remission) for the rarest of rare cases should be decided appropriately by the legislature.

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#India- a ray of hope for Afzal, other death-row prisoners

V. VENKATESAN , The Hindu, New Delhi Dec 17, 2012

  • A recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo
    The HinduA recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo

Supreme Court ruling gives the benefit of the doubt to accused

The Supreme Court judgment, in the case of Sangeet v. State of Haryana, delivered on November 20 could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru, whose mercy petitions have been turned over to it by the President for fresh advice.

The one mercy petition presently pending with President Pranab Mukherjee, after the receipt of advice from Union Home Minister Sushilkumar Shinde, also carries the taint of flawed death sentence by the Supreme Court.

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh v State of Punjab (1980) is the source of contemporary death penalty jurisprudence in India. It limited the death penalty to the rarest of rare crimes, and laid 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 has been very uneven and inconsistent.

The Sangeet judgement has reaffirmed that Bachan is the correct precedent for awarding death penalty. The relevant findings of the two-Judge Bench comprising Justice K.S. Radhakrishnan and Justice Madan B. Lokur in Sangeet, to paraphrase, are:

1. The reliance on Machhi Singh v. State of Punjab, delivered by a three-Judge Bench in 1983, as a valid legal precedent by many subsequent Benches to justify death sentences is flawed. Machhi Singh sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. These are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Bachan Singh resolutely refrained from balancing these elements, because it leads to arbitrary decisions by a Judge.

2. Machhi Singh sought to standardize crimes into five absolute categories, in order to identify the rarest of rare crime deserving death sentence. These five categories are manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. These categories enlarge the scope for imposing death penalty that was greatly restricted by Bachan Singh.

3. Despite Bachan Singh, primacy still seems to be given to the nature of the crime. The circumstances of the criminal, referred to in Bachan Singh, appear to have taken a bit of a back seat in the sentencing process.

The Hindu has scrutinized each Supreme Court judgment in the 15 cases and found that applying Sangeet the executive could recommend commuting the death sentences in all the cases.


#India-For a moratorium on death sentence

V. VENKATESAN, Dec 10, 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 flawedMachhi 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.


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