Report No. 262
(i) Supreme Court on Reformation
4.9.3 Even before the Supreme Court in Bachan Singh advocated reformation as a theory to be considered in death sentence adjudication, this penal policy was being consistently articulated by the Court, both in the death penalty and non-death penalty contexts. In Ediga Annamma v. State of Andhra Pradesh, (1974) 4 SCC 443 the Court emphasized the need to adduce evidence regarding the "facts of a social and personal nature" at the sentencing stage. This was to ensure that reformation was given as much importance as deterrence. See Ediga Anamma, (1974) 4 SCC 443, at para 14.
4.9.4 Similarly, in Sunil Batra v. Delhi Admn. (1978) 4 SCC 494 the Court held that rehabilitation and reformation are very much a part of sentencing policy in our criminal justice system, and tried to align current prison practices with constitutional norms which demand the rehabilitation of prisoners. It observed that "[a] rehabilitation purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the sentencing court." See Sunil Batra,(1978) 4 SCC 494, at para 30.
4.9.5 The court in Batra also referred to Mohammad Giasuddin v. State of A.P, (1977) 3 SCC 287 where it had held that the modern community has a primary stake in reformation of the offender, and the focus should be therapeutic rather than an "in terrorem" outlook. See Giasuddin,(1977) 3 SCC 287, at para 8 The Court observed:
"The whole man is a healthy man and every man is born good. Criminality is a curable deviance. Our prisons should be correctional houses, not cruel iron aching the soul. We make these persistent observations only to drive home the imperative of Freedo.- that its deprivation, by the State, is validated only by a plan to make the sentences more worthy of that birth right. See Giasuddin,(1977) 3 SCC 287, at paras 24-25. (Emphasis supplied)
4.9.6 The reformation ideal has similarly been articulated by the Supreme Court in other cases, Bishnu Deo Shaw v. State of West Bengal, (1979) 3 S.C.C 714; Maru Ram v. Union of India, (1981) 1 SCC 107. In this background came Bachan Singh which emphatically made this reformatory aspect a part of death penalty adjudication while evolving the 'rarest of rare case' test.
4.9.7 In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 the Supreme Court held that rehabilitation is an express sentencing goal, and must never be ignored especially in the death penalty context. It held that the death penalty should not be imposed "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.
4.9.8 The Supreme Court has again recently reiterated the need for the production of evidence of 'beyond reform' in death penalty cases. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498. Discussing the "rarest of rare" test as laid down in Bachan Singh, the court split the test into two parts; the first step involves deciding whether the case should belong to the 'rarest of rare' category, and the second deciding whether the alternative option of life imprisonment will not suffice in the facts of the case. Commenting on the second step, the Court held:
[L]ife imprisonment [is] completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498.
4.9.9 Thus, in addition to adjudging a case "rarest of rare," an equally important part of imposing the death penalty is whether the offender is amenable to reform or not. Various circumstances need to be assessed while determining whether an offender should be sentenced to death. It is important to note that these are circumstances of both the criminal and the crime, as has been held by the Supreme Court. Rajendra Prasad v. State of U.P; see also Bachan Singh v. State of Punjab, (1980) 2 SCC 684, Santosh Bariyar, (2009) 6 SCC 498, Ediga Anamma, (1974) 4 SCC 443.
4.9.10 The mandate of the Court in Bachan Singh, which requires the court to assess whether the offender is capable of reform and whether life imprisonment is unquestionably foreclosed, has often been ignored in death penalty adjudication.375 Evidence regarding the offender being 'beyond reform' is seldom adduced and considered.376
375 See discussion in Chapter 5 on arbitrariness in death penalty adjudication.
376 See discussion in Chapter 5. See also: Aparna Chandra, A Capricious Noose: A Comment on the Trial Court Sentencing Order in the December 16 Gang Rape Case, 2 J. NLUD 124 (2014).
4.9.11 Some critics have opined that if reformation is a principle of sentencing, and evidence of 'beyond reform' is to be considered, it is never possible to conclude that an offender is beyond reform, since there are always some extenuating circumstances to be found. In Justice Bhagwati's words:
There is no way of accurately predicting or knowing with any degree of moral certainty that murderer will not be reformed or is incapable of reformation. All we know is that there have been many successes even with the most vicious of cases [M]any examples clearly show that it is not possible to know beforehand with any degree of certainty that a murderer is beyond reformation. Madhu Mehta v. Union of India (1984) 4 SCC 62. (Emphasis supplied)