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Report No. 262

The Death Penalty

Chapter I


A. References from the Supreme Court

1.1.1 In Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 ('Khade') the Supreme Court of India, while dealing with an appeal on the issue of death sentence, expressed its concern with the lack of a coherent and consistent purpose and basis for awarding death and granting clemency. The Court specifically called for the intervention of the Law Commission of India ('the Commission') on these two issues, noting that:

It seems to me that though the courts have been applying the rarest of rare principle, the executive has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided.

Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal. Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 148. (Emphasis supplied)

It does prima facie appear that two important organs of the State, that is, the judiciary and the executive are treating the life of convicts convicted of an offence punishable with death with different standards. 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.

Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India. Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 149. (Emphasis supplied)

1.1.2 Khade was not the first recent instance of the Supreme Court referring a question concerning the death penalty to the Commission. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 ('Bariyar') lamenting the lack of empirical research on this issue, the Court observed:

We are also aware that on 18-12-2007, 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. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 112.

(Emphasis supplied)

11.1.3 The present Report is thus largely driven by these references of the Supreme Court and the need for re-examination of the Commission's own recommendations on the death penalty in the light of changed circumstances.

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