Report No. 262
(i) Doctrinal Frameworks
5.2.6 In Bachan Singh, the Court had emphasized the importance of individualized yet principled sentencing. Holding that there are infinite permutations and combinations even in single category offences, the Court had refused to create categories of offences for which the death penalty would be applicable.
Instead, the Court required judges to take into account, in each individual case, the aggravating and mitigating circumstances of both the crime as well as the criminal, in determining the sentence. Recognizing that circumstances relating to the crime and the criminal are often "so intertwined that it is difficult to give a separate treatment to each of them," Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 201, the Court held that it was "not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments."
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 201. However, in subsequent cases, the Court has given varying interpretations to the Bachan Singh requirements and different judges have understood the mandate of Bachan Singh differently.
a. Machhi Singh
5.2.7 Three years after Bachan Singh, a 3 judge Bench of the Supreme Court in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 ('Machi Singh') listed out five categories of cases for which the death penalty was a suitable option. The Court held that the death penalty may be imposed where the "collective conscience" Machhi Singh v. State of Punjab, (1983) 3 SCC 470, at para 32, of society is so shocked that "it will expect the holders of the judicial power centre to inflict death penalty." Machhi Singh v. State of Punjab, (1983) 3 SCC 470 at para 32.
According to the Court, "[t]he community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime." Machhi Singh v. State of Punjab (1983) 3 SCC 470, at paras 33-37, explained these categories in detail as follows:
I Manner of Commission of Murder: When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II Motive for Commission of murder: When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.
III Anti Social or Socially abhorrent nature of the crime: (a) When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.
(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.
IV Magnitude of Crime: When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V 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 the 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 murder is committed for political or similar reasons other than personal reasons.
5.2.8 Machhi Singh thus crystallized the applicability of the rarest of rare principle into five distinct categories which Bachan Singh had expressly refrained from doing. As the Supreme Court noted in Swamy Shradhhananda, the Machhi Singh categories "considerably enlarged the scope for imposing death penalty" Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, beyond what was envisaged in Bachan Singh.
b. Crime Centric Focus
5.2.9 The Machhi Singh categories relate only to the circumstances of the crime. While the Court did state that the sentencing judge should accord full weightage to mitigating circumstances as well, in subsequent cases, many judges have invoked the categories in Machhi Singh in a manner that suggest that once a case falls within any of the 5 categories it becomes a rarest of rare case deserving the death penalty. See example, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434, where the Court cited the Machhi Singh factors and then held that in the present case "[t]he enormity of the crime is writ large.
The accused-appellant caused multiple murders and attacked three witnesses. The brutality of the act is amplified by the manner in which the attacks have been made on all the inmates of the house in which the helpless victims have been murdered, which is indicative of the fact that the act was diabolic of the superlative degree in conception and cruel in execution and does not fall within any comprehension of the basic humanness which indicates the mindset which cannot be said to be amenable for any reformation."
The nature of the crime is itself held to be an indication that the person is beyond reformation. An example is Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234, where the majority opinion cited the Machhi Singh categories and held that the circumstances of the crime (without any discussion regarding the circumstances of the criminal) were such as to require imposing the death penalty. Pertinently, the dissenting judge in this case had acquitted the accused, but this factor was not considered by the majority in deciding whether the case was one of "rarest of rare."
5.2.10 Machhi Singh and a subsequent line of cases have focused only on the circumstances, nature, manner and motive of the crime, without taking into account the circumstances of criminal or the possibility of reform as required under the Bachan Singh doctrine.
Machhi Singh's progeny include a large number of cases in which the Court has decided whether or not to award the death penalty by only examining whether the crime is so brutal, depraved or diabolic as to "shock the collective conscience of the community." An example is Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra, (2011) 7 SCC 125, at para 22, where the accused was convicted for killing a woman and four children.
The Court noted that the crime was pre-meditated and held that the facts show that "the crime has been committed in a beastly, extremely brutal, barbaric and grotescue manner. It has resulted into intense and extreme indignation of the community and shocked the collective conscience of the society. We are of the opinion that the appellant is a menace to the society who cannot be reformed. Lesser punishment in our opinion shall be fraught with danger as it may expose the society to peril once again at the hands of the appellant."
The Court did not mention or discuss any mitigating circumstances. As the Court recognized in Bariyar, judges engage in "very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 71. Similarly, in Sangeet the Court recognized that "[d]espite 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." Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 34.
5.2.11 In Bariyar, the Court examined the decision in Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, where it was held that
"It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The punishment to be awarded for a crime should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal." Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175., at para 124. Held per incuriam Bachan Singh in Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 63.
5.2.12 Bariyar held that the exclusive focus in Ravji on the crime, rendered this decision per incuriam Bachan Singh. The Court listed a further 6 cases where Ravji had been followed, and which had therefore relied on incorrect precedent.
5.2.13 Similarly, the Supreme Court in Khade doubted the correctness of the imposition of the death penalty in Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, where the Court had held that "the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals." Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15. The exclusive focus of this decision on the crime and not the criminal was questioned in Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546. In Khade the Court opined that prima facie the judgement had not accounted for mitigating circumstances relating to the offender. Dhananjoy Chatterjee was executed in 2004.
5.2.14 So also, in Sangeet, the Court noted an additional three cases where Bachan Singh's direction to consider both aggravating and mitigating circumstances had not been followed. Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37; Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317.
5.2.15 Despite this recognition by the Supreme Court that it has erred in cases where only the circumstances of the crime, but not of the criminal have been taken into account, judges continue to impose the death penalty based on the former set of considerations alone. See e.g., Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107; Ajit Singh Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401.
c. Shock to the Collective Conscience and Society's Cry for Justice
5.2.16 Machhi Singh also introduced into the vocabulary of India's death penalty jurisprudence, the notion of 'shock to the "collective conscience" Machhi Singh v. State of Punjab (1983) 3 SCC 470, at para 32, of the community' as the touchstone for deciding whether to impose the death penalty or not. Similar notions like "society's cry for justice" Dhananjoy Chatterjee, (1994) 2 SCC 220, Jameel v. State of U.P., (2010) 12 SCC 532, State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan, (2005) 10 SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1; Ravji v. State of Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715; State of U.P. v. Sattan @ Satyendra, (2009) 4 SCC 736; State of Madhya Pradesh v. Santosh Kumar, (2006) 6 SCC 1; Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 and "public abhorrence of the crime" Dhananjoy Chatterjee, (1994) 2 SCC 220, Jameel v. State of U.P., (2010) 12 SCC 532, State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan, (2005) 10 SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1; Ravji v. State of Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715; State of U.P. v. Sattan @ Satyendra, (2009) 4 SCC 736; State of Madhya Pradesh v. Santosh Kumar, (2006) 6 SCC 1; ShaileshJasvantbhai v. State of Gujarat, (2006) 2 SCC 359 have also been invoked by the Court in subsequent cases. Bachan Singh had expressly warned that:
Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion. When Judges take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the Community ethic.
The perception of 'community' standards or ethics may vary from Judge to Judge Judges have no divining rod to divine accurately the will of the people. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 126.
5.2.17 However, in Machhi Singh as well as subsequent cases, public opinion, through the articulation of these amorphous standards of "collective conscience", "society's cry", and "public abhorrence", have been given an important role to play in sentencing jurisprudence.
5.2.18 In Bariyar, the Supreme Court has questioned the relevance and desirability of factoring in such "public opinion" into the rarest of rare analysis, since firstly, it is difficult to precisely define what "public opinion" on a given matter actually is. Further, people's perception of crime is "neither an objective circumstance relating to crime nor to the criminal." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 80.
As such, this factor is irrelevant to the rarest of rare analysis mandated by Bachan Singh. Reiterated in Mohinder Singh v. State of Punjab, (2013) 3 SCC 294. Third, as Bariyar has also pointed out, the courts are governed by the constitutional safeguards which "introduce values of institutional propriety, in terms of fairness, reasonableness and equal treatment challenge with respect to procedure to be invoked by the state in its dealings with people in various capacities, including as a convict." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 82.
For example, the Court plays a counter majoritarian role in protecting individual rights against majoritarian impulses. Public opinion in a given case may go against the values of rule of law and constitutionalism by which the Court is nonetheless bound. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498
5.2.19 A sentencing court does not have the means to rigorously examine public opinion in a given matter. Also, a cohesive, coherent and consistent "public opinion" is a fiction. The opinion of members of the public can be capricious, and dependent upon the (mis)information that the "public" is provided not only of the facts of an individual case, but of the criminal justice process itself. Focusing on public opinion therefore carries the danger of "capital sentencing becoming a spectacle in media.
If media trial is a possibility, sentencing by media cannot be ruled out." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 87 In such situations, invoking public opinion instead of focusing on constitutional standards and safeguards would defeat the entire framework elaborated in Bachan Singh.454 As one of the opinion in Rameshbhai Rathod v. State of Gujarat, (2009) 5 SCC 740 (per Ganguly J) recognized,
[The Court] cannot afford to prioritise the sentiments of outrage about the nature of the crimes committed over the requirement to carefully consider whether the person committing the crime is a threat to the society. The Court must consider whether there is a possibility of reform or rehabilitation of the man committing the crime and which must be at the heart of the sentencing process. It is only this approach that can keep imposition of death sentence within the 'rarest of the rare cases'. Rameshbhai Rathod v. State of Gujarat, (2009) 5 SCC 740, at para 108.
454 See also Aparna Chandra, A Capricious Noose, 2 Journal of National Law University Delhi 124 (2014) ("A court is a court of law not a court of public opinion. of course judges are creatures of society and will be influenced by it, but the encoding of public opinion into the formal framework of capital sentencing gives it a prescriptive weight that is problematic. If the opinion of the public matters to questions of sentencing, then courts are the wrong institutions to be determining sentence. Parliament or lynch mobs are more apposite").
5.2.20 In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 the Supreme Court recognized that Machhi Singh's invocation of "shock to the collective conscience of the community" Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, at para 20, as a standard for evaluating whether a case deserved death, had expanded the rarest of rare formulation beyond what was envisaged in Bachan Singh.
However, as discussed below, despite this acknowledgement, the Court has continued to invoke community reactions and public opinion as a ground for awarding the death penalty. See also, Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 (quoting Haresh Rajput on the point that Machhi Singh had expanded the rarest of rare doctrine beyond the Bachan Singh formulation by introducing the concept of "collective conscience", but invoking shock to the collective conscience in imposing the death sentence in the present case nonetheless).
d. The Crime Test, the Criminal Test and the Rarest of Rare Test
5.2.21 In a recent line of cases, the Supreme Court has responded to the concern that capital sentencing is "judge centric," by articulating another formulation of the Bachan Singh doctrine. The Court has held in cases like Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713. See also Birju v. State of M.P., (2014) 3 SCC 421; Ashok Debbarma @ Achak Debbarma v. State of Tripura, (2014) 4 SCC 747; Santosh Kumar Singh v. State of M.P, (2014) 12 SCC 650; Dharam Deo Yadav v. State of U.P, (2014) 5 SCC 509; Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, (2014) 4 SCC 69.
One of the opinions in Shankar Khade also used the triple test, that three tests have to be satisfied before awarding the death penalty: the crime test, meaning the aggravating circumstances of the case; the criminal test, meaning that there should be no mitigating circumstance favouring the accused; and if both tests are satisfied, then the rarest of rare cases test, "which depends on the perception of the society and not "judge-centric", that is whether the society will approve the awarding of death sentence to certain types of crime or not.
While applying this test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes..." Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, at para 19. Explaining this test, the Court in Mofil Khan v. Jharkhand, (2015) 1 SCC 67 stated that the test is to "basically examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community." Mofil Khan v. Jharkhand, (2015) 1 SCC 67, at para 46.
5.2.22 The triple test limits the possibility of the imposition of the death penalty to that very narrow category of cases in which there are no mitigating circumstances whatsoever. In this, the test is in keeping with the spirit of Bachan Singh that the death penalty should be imposed only in the most exceptional of circumstances.
5.2.23 However, in the triple test analysis, the "judge centric" nature of the death penalty can be prevented by focusing on the societal response to the crime. This is of concern because, as Bachan Singh itself acknowledged, and Bariyar reiterated, judges are likely to substitute their own assumptions, values and predilections in place of the perceptions of society, because even if one were to assume that society has determinate, stable and wide shared preferences on these matters, judges have no means of determining these preferences.
5.2.24 Further, as mentioned above, Bachan Singh rejected the notion of categorization of types of crime which are fit for the death penalty. However, this triple test formulation seeks to do just that in its "Rarest of Rare Test" which is predicated on "society's abhorrence, extreme indignation and antipathy to certain types of crimes." Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, at para 19.
5.2.25 The dissociation of the aggravating and mitigating circumstances from the rarest of rare analysis also moves away from the Bachan Singh framework. In addition, the triple test formula seeks to create distinct lists of the circumstances relating to the crime and the circumstances relating to the criminal, and evaluate them separately.
This goes against the Bachan Singh injunction that circumstances relating to the crime and to the criminal cannot be treated as distinct water-tight compartments.465 In fact, the Supreme Court itself noted this concern with the triple test in the three judge Bench decision in Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292 and cautioned that this triple test "may create situations which may well go beyond what was laid down in Bachan Singh." Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292, at para. 24.
The triple test however continues to be followed and applied by the Supreme Court itself despite the decision in Mahesh Shinde. See Ashok Debbarma @ Achak Debbarma v. State of Tripura, (2014) 4 SCC 747; Dharam Deo Yadav v. State of U.P, (2014) 5 SCC 509; Lalit Kumar Yadav @ Kuri v. State of U.P, (2014) 11 SCC 129.
465 For a critique of this test, see generally, Aparna Chandra, A Capricious Noose, 2 Journal of National Law University Delhi 124 (2014).
5.2.26 In departing from Bachan Singh both in terms of the framework of analysis, and the relevant factors to be considered (especially the consideration of public opinion), this three pronged test appears to have further added to the conceptual confusion around the rarest of rare analysis.
5.2.27 The discussion above indicates that different judges have understood the requirements of the rarest of rare standard differently, resulting in a disparate and "judge-centric" determination of whether or not a case falls within the rarest of rare category. As the Court put it in Sangeet, the Bachan Singh dictum appears to have been "lost in translation." Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.
The Supreme Court in Mohd. Farooq acknowledged the "disparity in sentencing by [the] court flowing out of varied interpretations to the rarest of rare expression," Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 165, and was concerned that "the precedent on death penalty is crumbling down under the weight of disparate interpretations." Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 165. The Court cautioned that without a consistent interpretation to the test, Article 14 would stand violated. Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.