Report No. 262
(iii) Variations in Application of the Rarest of Rare framework in the same case
5.4.18 In Mohd. Farooq the Supreme Court had stated that in order to bring about some objectivity and uniformity in the application of the death penalty, the "consensus approach" should be adopted, whereby the death penalty should be imposed only if there is unanimity vertically across the various tiers of the court system, as well as horizontally across Benches. Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 165.
5.4.19 However, the study Hanging in the Balance indicates repeated departures from this "consensus approach." This data shows that in the period 2000-13, the cases of 281 persons came up before the Supreme Court where at least one court had imposed the death sentence. of these, for 205 persons, the imposition of the death sentence was in issue before the Court. Out of these 205, the Supreme Court imposed the death penalty on 69 (33.7%) people. of this set, 5.8 % (n=4) had been acquitted by one court/ SC judge.
Another 23.2% (n= 16) had been given life by at least one court/SC judge. Thus overall in 29% of cases where the Supreme Court upheld or imposed the death penalty, there was no unanimity between the judges themselves on whether the accused was in fact guilty, and/or whether his case belonged to the rarest of rare category, calling for the death sentence.
5.4.20 of the 281 cases where at least one court had imposed the death sentence, the Supreme Court acquitted the accused in 60 (21.4%), commuted or imposed life imprisonment in 142 (50.5%), and remanded the matter back to the High Court or Trial Court in 8 (2.8%) cases. of the 60 acquitted, 18 had been awarded the death penalty by all the lower courts. Of the 142 who were ultimately given life imprisonment, 61 had been given the death sentence by all the lower courts.
5.4.21 Therefore, in 79 (28.1%) of the 281 cases the Supreme Court found that on the same facts, both the lower courts had erroneously imposed the death sentence.
5.4.22 Further, the Supreme Court itself imposed the death penalty on 12 persons who were given life imprisonment by at least one lower court, and a further 4 persons who were given life imprisonment by a judge of the Supreme Court itself.
5.4.23 It is important to note that merely because the imposition of the death penalty is finally overturned in such a large number of cases, does not mean that the system is functioning well. In most of the instances mentioned above, both the lower courts have been in error. Such errors have been corrected only after long durations in prison, including extended periods on death row. The trauma of being under a sentence of death, called the "death row phenomenon" exacts its own mental and physical punishment, even if the person is subsequently not executed.680
Therefore, it is no answer to the charge against excessive imposition of the death penalty, that most of these cases are overturned or commuted by the appellate courts anyway. If two courts, staffed by experienced judges can commit errors in the determination of guilt or sentence, there is nothing to suggest that the same mistake cannot be made by the judge of the third tier as well.
In other countries, most notably the United States, efforts to correct wrongful convictions, through the use of scientific evidence such as DNA, has led to the identification of hundreds of cases where a person was wrongfully convicted and sentenced, even to death, despite multiple layers of appeals and review up to the highest levels of the judiciary.681 In the absence of such studies in India, it is not possible to determine whether, and if so how many such cases exist in India. However, the examples given above, and the data presented here, caution us that an irreversible punishment like the death sentence exists in a fallible system.
680 Discussed in the next chapter.
681 See Brandon L. Garrett, The Banality of Wrongful Executions, MICH. L. REV. (2014) (listing 18 death row exonerations, amongst more than 250 other exonerations by DNA). In all, so far about 155 death row inmates have been exonerated in the US using DNA and non-DNA evidence. See The Innocence List, Death Penalty Information Centre, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row. See generally The Inevitability of Error, The Death Penalty Project (2014) (for examples of erroneous death sentences in various countries).
5.4.24 Furthermore, since 2000 the Supreme Court has dismissed in limine at least 9 special leave petitions ('SLP') against the imposition of the death penalty. Lal Chand @ Laliya v. State of Rajasthan (on 20.02.2004); Jafar Ali v. State of Uttar Pradesh (05.04.2004), Tote Dewan @ Man Bahadur Dewan v. State of Assam (08.08.2005), Sanjay v. State of Uttar Pradesh (03.07.2006), Bandu v. State of Karnataka (10.07.2006), Dnyaneshwar Borkar v. State of Maharashtra (21.07.2006), Magan Lal v. State of Madhya Pradesh (09.01.2012), Jitendra @ Jeetu & Ors. v. State of Madhya Pradesh (06.01.2015), Babasaheb Maruti Kamble v. State of Maharashtra (06.01.2015).
In a system with such a high reversal rate, the Supreme Court which is the final appellate court has, as the Court itself acknowledged "a far more serious and intensive duty to discharge. The court not only has to ensure that award of death penalty does not become a perfunctory exercise of discretion under section 302 after an ostensible consideration of Rarest of Rare doctrine, but also that the decision making process survives the special rigors of procedural justice applicable in this regard." Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 155.
In light of this principle, the practice of dismissing SLPs against the death penalty in limine should therefore be done away with, as was also recommended by the Commission in its 187th Report.
5.4.25 In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible. However objective the system becomes, since it is staffed by humans, and thus limited by human capacities and tendencies, the possibility of error always remains open, as has been acknowledged the world over, including by the most highly resourced legal systems.
5.4.26 As the instances cited above indicate, while the existence of appellate procedures may reduce the chances of error, these cannot be eliminated altogether. Given the irreversibility of the death penalty, this punishment can only be justified where the entire system works in a fool proof manner, having regard to the highest standards of due process, the fairest of investigation and prosecution, the most robust defence, and the most impartial and astute judges.
However, experiences the world over, including in India suggest, that "all it takes is one dishonest police officer, one incompetent lawyer, one over-zealous prosecutor or one mistaken witness and the system fails."684 In a perfect criminal justice system, the death penalty may be imposed error free. However, no such system has been devised so far. The death penalty therefore remains an irreversible punishment in an imperfect, fragile and fallible system.
684 The Inevitability of Error, The Death Penalty Project (2014) (for examples of erroneous death sentences in various countries).
5.4.27 The constitutionality of the death penalty has to be evaluated in light of the foregoing discussions on its stated justifications, as well as the concerns raised above. As the Supreme Court cautioned in Bariyar,
[The] right to life is the most fundamental of all rights. Consequently a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realize the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away all, other rights cease to exist.
5.4.28 Similarly, in Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981) 2 SCC 35, the Court held: "The passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, that is one sentence which cannot be recalled."
5.4.29 In light of the degree of intrusion of capital punishment into the right to life, and the irrevocability of the punishment, the Supreme Court has rightly emphasized that:
[I]n the context of punishments, the protections emanating from Article 14 and Article 21 have to be applied in the strictest possible terms... In every capital sentence case, it must be borne in mind that the threshold of rarest of rare cases is informed by Article 14 and 21, owing to the inherent nature of death penalty. Post Bachan Singh (supra), capital sentencing has come into the folds of constitutional adjudication. This is by virtue of the safeguards entrenched in Article 14 and 21 of our constitution.686
5.4.30 It is true that Bachan Singh in 1980 held that the death penalty does not violate the Article 21 requirement on this score.
5.4.31 The Court held that:
by no stretch of imagination can it be said that death penalty under Section 302 of the Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution."
5.4.32 However, the passage of thirty five years since that decision, and the considerably altered global and constitutional landscape in that time, are factors to be considered in any re-evaluation of the constitutionality of the death penalty.
5.4.33 The options for reforming the present system to remove the concern regarding arbitrariness and disparate application of the death penalty, are limited. On the one hand, as Bachan Singh, and subsequently Mithu v. State of Punjab, (1980) 2 SCC 684, have held, judicial discretion cannot be taken out of the sentencing process. A sentencing process without discretion may be more consistent, but will also be equally arbitrary for ignoring relevant differences between cases. In such a system sentencing is likely to be severely unfair and would definitely not remain a judicial function.
5.4.34 Comparative experiences also warn against an approach that focuses on standardization and categorization. An instructive example is the U.K. As far back as 1953, the British Royal Commission examined the death penalty and concluded, "No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder." Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, at 595, quoted in McGautha v. California, 402 U.S. 183, 205 (1971).
The Royal Commission was unanimous in its recommendation against the adoption of any form of grades or degrees of murder, especially given the wide variance of the moral incidence of the crime, making it almost impossible to determine in advance a category of murder that would constitute the worst of the worst. This was the basis of the Commission's recommendation for the abolition of the death penalty in Great Britain. In 1957, the UK government introduced the Homicide Act which tried to distinguish between different categories of murders and restricted death penalty to six classes of murder.689
These included murder committed in the course or furtherance of theft; by shooting or causing explosions; in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or effecting or assisting an escape from lawful custody; murder of a police officer in the execution of his duty or of a person assisting him; and by a prisoner of a prison officer in the execution of his duty or of a person assisting him. Along with this, the death penalty could be imposed on a person committing a second separate murder.690 The Act also introduced the partial defence of "diminished responsibility" and of killing in the course of a suicide pact.691
689 Graham Hughes, The English Homicide Act of 1957: The Capital Punishment Issue, and Various Reforms in the Law of Murder and Manslaughter, 49(6) Journal of Criminal Law and Criminology 521 (1959), available at:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4773&cont ext=jclc, visited on 25.08.2015.
690 The abolition of hanging in Britain, available at:
http://www.capitalpunishmentuk.org/abolish.html, visited on 25.08.2015.
691 The Law Commission Consultation Paper 177, A New Homicide Act for England and Wales, available at:
https://www.law.upenn.edu/cf/faculty/cfinkels/workingpapers/Report%20for%20British%20Law%20Commission%20cp177.pdf, at page 18, visited on 25.08.2015.
5.4.35 A major criticism of the Act was this random basis on which death would be awarded (despite trying to introduce more principled and exceptional sentencing.- for instance, plotting a premeditated coldblooded murder by poison would not constitute a capital offence, but accidentally killing someone in the course of a theft would be punishable with the death sentence.
Similarly, if a person were to kill another using a hatchet, it would not be capital murder; but ceteris paribus if the weapon was a gun, it would be.692 This made the law devoid of any moral or principled basis and it became unworkable in practice.
692 Gerald Gardiner QC, "Criminal Law: Capital Punishment in Britain", 45 ABA Journal 259, 260-261 (March 1959).
5.4.36 This led to the Murder (Abolition of Death Penalty) Act of 1965, which imposed a five-year legislative moratorium on the death penalty for murder, which was reaffirmed in December 1969 to formally abolish death penalty for murder in Britain. A further vote in 1994 to reinstate capital punishment was defeated in the House of Commons in 1994. Subsequently, the death penalty was abolished for arson in the Royal Dockyards in 1971 and for treason and piracy with violence in 1998, thus ending it for all crimes.693
693 The abolition of hanging in Britain, available at:
5.4.37 India's own jurisprudence, as well as the experiences of other countries therefore warns against standardization and categorization as a response to the arbitrariness of the death penalty.
5.4.38 The other option is to put in place guidelines that are less rigid, and allow for flexibility, but nonetheless limit the scope of application of the death penalty. But this is precisely the route taken by Bachan Singh. In that case, the Court sought to carve out a very narrow exceptional category. However, with the accretion of precedent the Bachan Singh guidelines have become more a legitimation for imposing the death sentence, than any meaningful restriction.
In comparable contexts, when faced with the arbitrariness and disparity in death sentencing, other countries have moved towards abolition of the death penalty. In South Africa for example, death penalty came to a judicial end. The South African Constitutional Court in State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94, June 6 1995 struck down the constitutional validity of capital punishment, relying on the arbitrariness and inequality inherent in the punishment, holding that:
It cannot be gainsaid that poverty, race and chance play roles in the outcome of capital cases and in the final decision as to who should live and who should die. It is sometimes said that this is understood by the judges, and as far as possible, taken into account by them. But in itself this is no answer to the complaint of arbitrariness; on the contrary, it may introduce an additional factor of arbitrariness that would also have to be taken into account. Some, but not all accused persons may be acquitted because such allowances are made, and others who are convicted, but not all, may for the same reason escape the death sentence. State v. Makwanyane, Constitutional Court of South Africa, CCT/3/94, June 6 1995, at para 51.
5.4.39 In light of the Court's own acknowledgement that the death penalty system operates in an arbitrary manner the current method of application of the death penalty has to end. Comparative experience tells us that the concerns highlighted by Justice Bhagwati in Bachan Singh, and echoed in Supreme Court judgements recently, are likely to persist, despite attempts at reforming the apparatus of the death penalty.