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Report No. 262

D. Constitutionality of the Death Penalty in India

(i) From Jagmohan to Bachan Singh

2.4.1 The first challenge to the constitutionality of the death penalty in India came in the 1973 case of Jagmohan Singh v. State of U. P. ('Jagmohan'), (1973) 1 SCC 20. The petitioners argued that the death penalty violated Articles 14, 19 and 21 of the Constitution of India. It was argued that since the death sentence extinguishes, along with life, all the freedoms guaranteed under Article 19(1) (a) to (g), it was an unreasonable denial of these freedoms and not in the interests of the public.

Further, the petitioners argued that the discretion vested in judges in deciding to impose death sentence was uncontrolled and unguided and violated Article 14. Finally, it was contended because the provisions of the law did not provide a procedure for the consideration of circumstances crucial for making the choice between capital punishment and imprisonment for life, it violated Article 21. The decision of the US Supreme Court in Furman v. Georgia in which the death penalty was declared to be unconstitutional as being cruel and unusual punishment was also placed before the Constitution Bench.

2.4.2 This case was decided before the CrPC was re-enacted in 1973, making the death penalty an exceptional sentence.

2.4.3 In Jagmohan, the Supreme Court found that the death penalty was a permissible punishment, and did not violate the Constitution. The Court held that:

The impossibility of laying down standards is at the very core of the criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter sentences as already pointed out, 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.Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 26.

2.4.4 The Court also held that:

If the law has given to the judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and circumstances of one case can hardly be the same as the facts and circumstances of another. Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 27.

2.4.5 Around the same time, just before the CrPC of 1973 became law, the Supreme Court also commented on the wisdom of the introduction of the post-conviction hearing on sentence in the case of Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443. In commuting the death sentence to life imprisonment, the Court observed the following:

In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined. Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 14.

2.4.6 The law's changes were, in the view of the court, expressive of a tendency "towards cautious, partial abolition and a retreat from total retention."Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 21.

In a statement that reflects concerns that has acquired a resonance, the court said, "a legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life."Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 26.

2.4.7 In 1979, the case of Rajendra Prasad v. State of Uttar Pradesh ('Rajendra Prasad'), (1979) 3 SCC 646. discussed what the "special reasons" in imposing the death sentence could be. The Court found itself confronting, not the constitutionality of the death sentence, but that of sentencing discretion. The Court per majority (of two judges) said, "special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal."Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 88.

They drew the focus in sentencing to reformation, even as they held that it was not the nature of the crime alone that would be relevant in deciding the sentence. The Court said, "the retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea."Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 88. Significantly, voicing concerns that have begun to reemerge, the court asked: "Who, by and large, are the men whom the gallows swallow?

"Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 77. and found that, with a few exceptions, it was "the feuding villager the striking workers the political dissenter ... the waifs and strays whom society has hardened by neglect into street toughs, or the poor householder-husband or wife driven by necessity of burst of tantrums"Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 77. who were visited with the extreme penalty.

2.4.8 In 1979, different Benches of the Supreme Court heard the cases of Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, and Bachan Singh v. State of Punjab, (1980) 2 SCC 684; While Dalbir Singh relied on Rajendra Prasad to arrive at a decision, the Bench in Bachan Singh noted that the judgement in Rajendra Prasad was contrary to the decision in Jagmohan, and referred it to a Constitutional Bench. This culminated in the landmark decision of the Constitution Bench in Bachan Singh v. State of Punjab, ('Bachan Singh')(1980) 2 SCC 684.

2.4.9 The challenge to the death penalty in Bachan Singh was premised, among other things, on irreversibility, fallibility, and that the punishment is necessarily cruel, inhuman and degrading. It was also contended that the penological purpose of deterrence remained unproven, retribution was not an acceptable basis of punishment, and that it was reformation and rehabilitation which were the purposes of punishment.

2.4.10 Four of the five judges hearing this case did not accept the contention that the death penalty was unconstitutional. They overruled Rajendra Prasad, and affirmed Jagmohan, when they held that the death penalty could not be restricted to cases where the security of the state and society, public order and the interests of the general public were threatened. Errors, they held, could be set right by superior courts, and presentence hearing and the procedure that required confirmation by the High Court would correct errors.

2.4.11 In Bachan Singh, the Court adopted the 'rarest of rare' guideline for the imposition of the death penalty, saying that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal. This was also the case where the court made a definitive shift in its approach to sentencing. The Court held:

The expression 'special reasons' in the context of this provision, obviously means 'exceptional reasons' founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 161.

2.4.12 It added:

It cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be blood-thirsty.

It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined insection 354 (3), viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

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.Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209 (Emphasis supplied)

2.4.13 Justice Bhagwati in his dissenting opinion found the death penalty necessarily arbitrary, discriminatory and capricious. He reasoned that "the death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and the affluent usually escape, from its clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being violative of Articles 14 and 21."Bachan Singh v. State of Punjab, 1982 3 SCC 24 (J. Bhagwati, dissenting), at para 81.

2.4.14 In 1991, Shashi Nayar v. Union of India, (1992) 1 SCC 96 the death sentence was once again challenged, among other reasons, for the reliance placed in Bachan Singh on the 35th Report of the Commission. The Court turned down the petition, citing the deteriorating law and order in the country, with the observation that the time was not right for reconsidering the law on the subject. The plea that the execution of capital punishment by hanging was barbaric and dehumanizing, and it should be substituted by some other decent and less painful method in executing the sentence, was also rejected.Shashi Nayar v. Union of India, (1992) 1 SCC 96, at para 7

2.4.15 In the past few years, attention has also been drawn to the arbitrary application of the Bachan Singh framework by courts as also to the possibility of judicial error in cases where the death sentence has been imposed.

The Supreme Court in Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230; Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767; Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498 and Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641 amongst other cases, has noticed that sentencing in capital cases has become arbitrary and that the sentencing law of Bachan Singh has been interpreted in varied ways by different Benches of the Court.

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