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Report No. 187

Chapter 6

Right of Appeal to The Apex Court in Cases Where Death Sentence Has Been Affirmed or Awarded by The High Court

And The Procedure In The Apex Court Relating To Passing Of Death Sentence

After examining this issue of the appropriate mode of execution, what remains to be examined is the process of the confirming the death penalty applicable to Courts or other authorities.

As has been provided in ECOSOC resolution as to safeguard No. 6 as,

"Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction and steps should be taken to ensure that such appeals shall become mandatory"

The similar view has also been expressed by Justice Bhagwati, in Para 82 in Bachan Singh v. State of Punjab (supra) of dissenting judgment as,

"82. Before I part with this topic I may point out that the only way in which the vice of arbitrariness in the imposition of death penalty can be removed is by the law providing that in every case where the death sentence is confirmed by the High Court there shall be an automatic review of the death sentence by the Supreme Court sitting as a whole and the death sentence shall not be affirmed or imposed by the Supreme Court unless it is approved unanimously by the entire court sitting en banc and the only exceptional cases in which death 44sentence may be affirmed or imposed should be legislatively limited to those where the offender is found to be so depraved that it is not possible to reform him by any curative or rehabilitative therapy and even after his release he would be a serious menace to the society and therefore in the interest of the society he is required to be eliminated.

Of course, for reasons I have already discussed such exceptional cases would be practically nil because it is almost impossible to predicate of any person that he is beyond reformation or redemption and therefore, from a practical point of view death penalty would be almost nonexistent. But theoretically it may be possible to say that if the State is in a position to establish positively that the offender is such a social monster that even after suffering life imprisonment and undergoing reformative and rehabilitative therapy, he can never be claimed for the society, then he may be awarded death penalty. If this test is legislatively adopted and applied by following the procedure mentioned above, the imposition of death penalty may be rescued from the vice of arbitrariness and caprice. But that is not so under the law as it stands today."

The Law Commission is quite aware of the difficulties in formulating standard guidelines for channelizing the discretion of the Courts as observed by Mr. Justice Harlan in McGautha Vs. California (402 US 183) at Page 3. He observed:

"Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by... history... To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by 45the sentencing authority, appear to be tasks which are beyond present human ability." Justice Bhagwati in Bachan Singh case (supra) has made the following observations pertinent to the arbitrariness involved in awarding the death sentence:-

"70. Now this conclusion reached by me is not based merely on theoretical or a priori considerations. On an analysis of decision given over a period of years we find that in fact there is no uniform pattern of judicial behaviour in the imposition of death penalty and the judicial practice does not disclose any coherent guidelines for the award of capital punishment. The judges have been awarding death penalty or refusing to award it according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions.

It is apparent from a study of the judicial decisions that some judges are readily and regularly inclined to sustain death sentences, other are similarly disinclined and the remaining waver from case to case. Even in the Supreme Court there are divergent attitudes and opinions in regard to the imposition of capital punishment. If a case comes before one Bench consisting of Judges who believe in the social efficacy of capital punishment, the death sentence would in all probability be confirmed but if the same case comes before another Bench consisting of Judges who are morally and ethically against the death penalty, the death sentence would most likely be commuted to life imprisonment.

The former would find and I say this not in any derogatory or disparaging sense, but as a consequence of psychological and attitudinal factors operating on the minds of the Judges constituting the Benc.- 46'special reasons' in the case to justify award of death penalty while the latter would reject any such reasons as special reasons. It is also quite possible that one Bench may, having regard to its perceptions,
think that there are special reasons in the case for which death penalty should be awarded while another Bench may bona fide and conscientiously take a different view and hold that there are no special reasons and that only life sentence should be imposed and it may not be possible to assert objectively and logically as to who is right and who is wrong, because the exercise of discretion in a case of this kind, where no broad standards or guidelines are supplied by the legislature, is bound to be influenced by the subjective attitude and approach of the judges constituting the Bench, their value system, the individual tone of their mind, the color of their experience and the character and variety of their interests and their predispositions.

This arbitrariness in the imposition of death penalty is considerably accentuated by the fragmented Bench structure of our courts where Benches are inevitably formed with different permutations and combinations from time to time and cases relating to the offence of murder come up for hearing sometimes before one Bench, some times before another sometimes before a third and so on.

Professor Blackshield has in his article on "Capital Punishment in India" published in Volume 21 of the Journal of the Indian Law Institute (At pp. 137-226 (Issue of April-June, 1979)) pointed out how the practice of Bench formation contributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is concerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are now heard by two-Judge Benches.

Professor Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while 47sentencing an accused for the offence of murder and analysing these 70 cases he has pointed out that during the period April 28, 1972 to March 8, 1976 only 11 Judges of the Supreme Court participated in 10 per cent or more of the cases. He has listed these 11 Judges in an ascending order of leniency based on the proportion for each Judge of plus votes (i.e. votes for the death sentence) to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies from judge to judge.

It is significant to note that out of 70 cases analysed by Professor Blackshield, 37 related to the period subsequent to the coming into force of Section 354, sub-section (3) of the Code of Criminal Procedure, 1973. If a similar exercise is performed with reference to cases decided by the Supreme Court after March 8, 1976, that being the date up to which the survey carried out by Professor Blackshield was limited, the analysis will reveal the same pattern of incoherence and arbitrariness, the decision to kill or not to kill being guided to a large extent by the composition of the Bench. Take for example Rajendra Prasad case ((1979) 3 SCC 646) decided on February 9, 1979.

In this case, the death sentence imposed on Rajendra Prasad was commuted to life imprisonment by a majority consisting of Krishna Iyer, J. and Desai, J., A.P. Sen, J. dissented and was of the view that the death sentence should be confirmed. Similarly in one of the cases before us, namely, Bachan Singh v. State of Punjab ((1979) 3 SCC 727) when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in Rajendra Prasad case ((1979) 3 SCC 646) was wrong and that is why he referred that case to the Constitution Bench.

So also in Dalbir Singh v. State of Punjab ((1979) 3 SCC 745), the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be commuted to life imprisonment while A.P. 48Sen, J. struck to the original view taken by him in Rajendra Prasad case ((1979) 3 SCC 646) and was inclined to confirm the death sentence. It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social philosophy of the Judges constituting the Bench.

71. The most striking example of freakishness in imposition of death penalty is provided by a recent case (Harbans Singh v. State of U.P., 1982(2) SCC 101), which involved three accused, namely, Jeeta Singh, Kashmira Singh and Harbans Singh. These three persons were sentenced to death by the Allahabad High Court by a judgment and order dated October 20, 1975 for playing an equal part in jointly murdering a family of four persons. Each of these three persons preferred a separate petition in the Supreme Court for special leave to appeal against the common judgment sentencing them all to death penalty.

The special leave petition of Jeeta Singh came up for heating before a Bench consisting of Chandrachud, J. (as he then was), Krishna Iyer, J. and N.L. Untwalia, J. and it was dismissed on April 15, 1976. Then came the special leave petition preferred by Kashmira Singh from jail and this petition was placed for hearing before another Bench consisting of Fazal Ali, J. and myself. We granted leave to Kashmira Singh limited to the question of sentence and by an Order dated April 10, 1977 we allowed his appeal and commuted his sentence of death into one of imprisonment for life.

The result was that while Kashmira Singh's death sentence was commuted to life imprisonment by one Bench, the death sentence imposed on Jeeta Singh was confirmed by another Bench and he was executed on October 6, 1981, though both had played equal part in the murder of the family and there was nothing to distinguish the case of one from that of the other. The 49special leave petition of Harbans Singh then came up for hearing and this time, it was still another Bench which heard his special leave petition.

The Bench consisted of Sarkaria and Shinghal, JJ. and they rejected the special leave petition of Harbans Singh on October 16, 1978. Harbans Singh applied for review of this decision, but the review petition was dismissed by Sarkaria, J. and A.P. Sen, J. on May 9, 1980. It appears that though the Registry of this Court had mentioned in its Office Report that Kashmira Singh's death sentence was already commuted, that fact was not brought to the notice of the Court specifically when the special leave petition of Harbans Singh and his review petition were dismissed.

Now since his special leave petition as also his review petition were dismissed by this Court, Harbans Singh would have been executed on October 6, 1981 along with Jeeta Singh, but fortunately for him he filed a writ petition in this Court and on that writ petition, the Court passed an Order staying the execution of his death sentence. When this writ petition came up for hearing before a still another Bench consisting of Chandrachud, C.J., Desai and A.N. Sen, JJ., it was pointed out to the Court that the death sentence imposed on Kashmira Singh had been commuted by a Bench consisting of Fazal Ali, J. and myself and when this fact was pointed out, the Bench directed that the case be sent back to the President for reconsideration of the clemency petition filed by Harbans Singh.

This is a classic case which illustrates the judicial vagaries in the imposition of death penalty and demonstrates vividly, in all its cruel and stark reality, how the infliction of death penalty is influenced by the composition of the Bench, even in cases governed by Section 354, sub-section (3) of the Code of Criminal Procedure, 1973. The question may well be asked by the accused : Am I to live or die depending upon the way in which the Benches are constituted 50from time to time ? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21 ?

72. If we study the judicial decisions given by the courts over a number of years, we find judges resorting to a wide variety of factors in justification of confirmation or commutation of death sentence and these factors when analysed fail to reveal any coherent pattern. This is the inevitable consequence of the failure of the legislature to supply broad standards or guidelines which would structure and the channelize the discretion of the court in the matter of imposition of death penalty.

Of course, I may make it clear that when I say this I do not wish to suggest that if broad standards or guidelines are supplied by the legislature, they would necessarily cure death penalty of the vice of arbitrariness or freakishness. But whether adequate standards or guidelines can be formulated or not which would cure the aspects of arbitrariness and capriciousness, the fact remains that no such standards or guidelines are provided by the legislature in the present case, with the result that the court has unguided and untrammeled discretion in choosing between death and life imprisonment as penalty for the crime of murder and this has led to considerable arbitrariness and uncertainty.

This is evident from a study of the decided cases which clearly shows that the reasons for confirmation or commutation of death sentence relied upon by the Court in different cases defy coherent analysis. Dr. Raizada has, in his monumental doctoral study entitled "Trends in sentencing; a Study of the Important Penal Statutes and Judicial Pronouncements of the High Courts and the Supreme Court" identified a large number of decisions of this Court where inconsistent awards of punishment have been made and the judges have frequently articulated their inability to prescribe or follow consistently any standards or 51guidelines. He has classified cases up to 1976 in terms of the reasons given by the Court for awarding or refusing to award death sentence. The analysis made by him is quite rewarding and illuminating.

(i) One of the reasons given by the Courts in a number of cases for imposing death penalty is that the murder is 'brutal', 'coldblooded', 'deliberate', 'unprovoked', 'fatal', 'gruesome', 'wicked', 'callous', 'heinous' or 'violent'. But the use of these labels for describing the nature of the murder is indicative only of the degree of the Court's aversion for the nature or the manner of commission of the crime and it is possible that different judges may react differently to these situations and moreover, some judges may not regard this factor as having any relevance to the imposition of death penalty and may therefore decline to accord to it the status of 'special reasons'.

In fact, there are numerous cases, where despite the murder being one falling within these categories, the Court has refused to award death sentence. For example, Janardharan whose appeal was decided along with the appeal of Rajendra Prasad had killed his innocent wife and children in the secrecy of night and the murder was deliberate and cold-blooded, attended as it was with considerable brutality, and yet the majority consisting of Krishna Iyer, J. and Desai, J. commuted his death sentence to life imprisonment.

So also Dube had committed triple murder and still his death sentence was commuted to life imprisonment by the same two learned Judges, namely, Krishna Iyer, J. and Desai, J. It is, therefore, clear that 52the epithets mentioned above do not indicate any clear-cut welldefined categories but are merely expressive of the intensity of judicial reaction to the murder, which may not be uniform in all judges and even if the murder falls within one of these categories, that factor has been regarded by some judges as relevant and by others, as irrelevant and it has not been uniformly applied as a salient factor in determining whether or not death penalty should be imposed.

(ii) There have been cases where death sentence has been awarded on the basis of constructive or joint liability arising under Sections 34 and 149 (vide Babu v. State of U.P. (1965) 2 SCR 771), Mukhtiar Singh v. State of Punjab ((1972) 4 SCC 843), Masalti v. State of U.P. ((1964)8SCR 133), and Gurcharan Singh v. State of Punjab ((1963) 3 SCR 585). But, there are equally a large number of cases where death sentence has not been awarded because the criminal liability of the accused was only under Section 34 or Section 149. There are no established criteria for awarding or refusing to award death sentence to an accused who himself did not give the fatal blow but was involved in the commission of murder along with other assailants under Section 34 or Section 149.

(iii) The position as regards mitigating factors also shows the same incoherence. One mitigating factor which has often been relied upon for the purpose of commuting the death sentence to 53life imprisonment is the youth of the offender. But this too has been quite arbitrarily applied by the Supreme Court. There are cases such as State of U.P. v. Samman Dass ((1972) 3 SCC 201), Raghubir Singh v. State of Haryana ((1975) 3 SCC 37) and Gurudas Singh v. State of Rajasthan ((1975) 4 SCC 490) where the Supreme Court took into account the young age of the appellant and refused to award death sentence to him.

Equally there are cases such as Bhagwan Swarup v. State of U.P. ((1971) 3 SCC 759) and Ragho Mani v. State of U.P. ((1976) 4 SCC 297) where the Supreme Court took the view that youth is no ground for extenuation of sentence. Moreover there is also divergence of opinion as to what should be the age at which an offender may be regarded as a young man deserving of commutation. The result is that as pointed out by Dr. Raizada, in some situations young offenders who have committed multiple murders get reduction in life sentence whereas in others, "where neither the loss of as many human lives nor of higher valued property" is involved, the accused are awarded death sentence.

(iv) One other mitigating factor which is often taken into account is delay in final sentencing. This factor of delay after sentence received great emphasis in Ediga Anamma v. State of A.P. ((1974) 4 SCC 443), Chawla v. State of Haryana ((1974) 4 SCC 579), Raghubir Singh v. State of Haryana ((1975) 3 SCC 37), Bhoor Singh v. State of Punjab ((1974) 4 SCC 754), State of Punjab v. Hari Singh ((1974) 4 SCC 552) and Gurudas Singh v. State of Rajasthan ((1975) 4 SCC 490) and in these cases delay was taken into account for the purpose of awarding the lesser punishment of life imprisonment.

In fact, in Raghubir Singh v. State of Haryana ((1975) 3 SCC 37) the fact that for 20 months the spectre of death penalty must have been tormenting his soul was held sufficient to entitle the accused to reduction in sentence. But equally there are a large number of cases where death sentences have been confirmed, even when two or more years were taken in finally disposing of the appeal (vide Rishideo Pande v. State of U.P. (AIR 1955 SC 331), Bharwad Mepa Dana v. State of Bombay ((1960) 2 SCR 172) and other cases given by Dr. Raizada in foot-note 186 to Chapter III).

These decided cases show that there is no way of predicting the exact period of prolonged proceeding which may favour an accused. Whether any importance should be given to the factor of delay and if so to what extent are matters entirely within the discretion of the Court and it is not possible to assert with any definitiveness that a particular period of delay after sentencing will earn for the accused immunity from death penalty. It follows as a necessary corollary from these vagaries in sentencing arising from the factor of delay, that the imposition of capital punishments becomes more or less a kind of cruel judicial lottery.

If the case of the accused is handled expeditiously by the prosecution, defense lawyer, Sessions Court, High Court and the Supreme Court then this mitigating factor of delay is not available to him for reduction to life sentence. If, on the other hand, there has been lack of dispatch, 55engineered or natural, then the accused may escape the gallows, subject of course to the judicial vagaries arising from other causes. In other words, the more efficient the proceeding, the more certain the death sentence and vice versa.

(v) The embroilment of the accused in an immoral relationship has been condoned and, in effect, treated as an extenuating factor in Raghubir Singh v. State of Haryana ((1975) 3 SCC 37) and Vasant Laxman More v. State of Maharashtra ((1974) 4 SCC 778) while in Lajar Masih v. State of U.P. ((1976) 1 SCC 806), it has been condemned and in effect treated as an aggravating factor. There is thus no uniformity of approach even so far as this factor is concerned.

73. All these factors singly and cumulatively indicate not merely that there is an enormous potential of arbitrary award of death penalty by the High Courts and the Supreme Court but that, in fact, death sentences have been awarded arbitrarily and freakishly (vide Dr. Upendra Baxi's note on "Arbitrariness of Judicial Imposition of Capital Punishment"). We may have referred to the fact that where death punishment is given by General Court Martial consisting of five officers, it can be given only if there is two-third majority and not simple majority.



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