DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
SESSION 2019-20

FINAL DRAFT
SUBJECT – JURISPRUDENCE

TOPIC - COMMENT ON DEATH PENALTY IN THE CASE OF

BACHAN SINGH VS STATE OF PUNJAB

SUBMITTED TO SUBMITTED BY
Dr. Manwendra Kumar Tiwari JUHI AWASTHI
ASST. PROF. OF LAW ROLL NO. 070
Vth SEMESTER
B.A.L.L.B (Hons.)
CASE DETAIL

This case was with regard to the Constitution Bench raises a question of constitutional
validity of death penalty for murder provided in Section 302, Penal Code, and the sentencing
procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973. filed in Karnataka
High Court and in this parties are Syndicate Bank and A.P. Manjunath. Bench: Y
Chandrachud, A. Gupta, N Untwalia, P Bhagwati, R Sarkaria

FACTS

Bachan singh , appellant in Criminal Apeal No.273 of 1979,was tried and convicted and
sentenced to death under section 302,IPC for the murder of Desa Singh,Durga Bai by the
session judge. The high court confirmed his death sentence and dismissed the appeal.

Bachan Singh then appealed to the S.C by special leave ,which came up for hearing before a
bench of this court (consisting of Sarkaria and Kailasam,JJ,). The question raised in the
appeal was ,whether the facts found by the courts below would be “special reason”for
awarding,the death sentence as required under Section 354(3)of CRPC,1973.

Issues

The Court framed the two issues in this case: -

1. Whether the death penalty provided under Section 302 of the IPC [Indian Penal Code]
is constitutional?
2. Whether the sentencing procedure provided for in Section 354(3) of the CrPC [Code
of Criminal Procedure] gave the court unrestricted and unguided discretion, thereby
allowing death sentences to be arbitrarily imposed.

With regards to the first issue:

The Law Commission of India submitted its 35th Report in 1967 to the Government. It
summed up its conclusions at page 354 of its Report, as follows:

Having regard, however, to the conditions in India, to the variety of the social up-bringing

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of its inhabitants, to the disparity in the level of morality and education in the country, to
the vastness of its area, to diversity of its population and to the paramount need for
maintaining law and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment. Moreover capital punishment does act as a
deterrent. Basically every human being dreads death.

For the purpose of testing the constitutionality of the impugned provision as to death
penalty in Section 302, India Penal Code on the ground of reasonableness in the light of
Articles 19 and 21 of the Constitution, it was observed by the Court not to express any
categorical opinion, one way or the other, as to which of these two antithetical views, held
by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in their opinion on
this issue, is a ground among others, for rejecting the petitioners argument that retention of
death penalty in the impugned provision, is totally devoid of reason and purpose. It was
further observed if the framers of the Indian Constitution were fully aware about the
existence of death penalty as punishment for murder, under the Indian Penal Code, if the
35th Report and subsequent Reports of the Law Commission suggesting retention of death
penalty, and recommending revision of the Criminal Procedure Code and the insertion of
the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and
sentencing procedure on conviction for murder and other capital offences were before
the Parliament and presumably considered by it when in 1972-1973 it took up revision of
the Code of 1898 and replaced it by the CrPC, 1973, it is not possible to hold that the
provision of death penalty as an alternative punishment for murder, in Section 302, Indian
Penal Code is unreasonable and not in the public interest. Therefore, the Court concluded
that the impugned provision in Section 302, violates neither the letter nor the ethos of
Article 19 and 21.

With regards to the second issue:

Section 354(3) which mandates the Court convicting a person for an offence punishable
with death or, in the alternative with imprisonment for life or imprisonment for a term of
years, not to impose the sentence of death on that person unless there are "special reasons"
to be recorded-for such sentence. 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. Thus, the

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 legislative policy is clear on the on the face of Section 354(3) is that on conviction for
murder and other capital offences punishable in the alternative with death under the Penal
Code, the extreme penalty should be imposed only in extreme cases. It is unnecessary nor
is it possible to make a catalogue of the special reasons which may justify the passing of
the death sentence in a case.It was also observed that the present legislative policy
discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various offences, including one under
Section 302, Penal Code, the Court should not confine its consideration principally or
merely to the circumstances connected with the particular crime, but also give due
consideration to the circumstances of the criminal.

While considering the question of sentence to be imposed for the offence of murder
under Section 302 Penal Code, the court must have regard to every relevant circumstance
relating to the crime as well as the criminal. If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous character and constitutes, on account
of its design and the manner of its execution, a source of grave danger to the society at
large, the court may impose the death sentence. Cognizant of the past experience of the
administration of death penalty in India, Parliament, in its wisdom, thought it best and safe
to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial
discretion of the courts which are manned by persons of reason, experience and standing in
the profession. The exercise of this sentencing discretion cannot be said to be untrammelled
and unguided. It is exercised judicially in accordance with well-recognised principles
crystalised by judicial decisions, directed along the broad contours of legislative policy
towards the signposts enacted in Section 354(3).

The Court observed that the standardisation or sentencing discretion is a policy matter
which belongs to the sphere of legislation. And the judiciary will not interfere with it

REASONING

In spite of the various guidelines laid down in the cases with respect to death penalty there
has been inconsistency in the procedure of sentencing, we cannot deny the fact that it is a

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man made system after all. Death sentencing has become Judge-centric rather than principled
sentencing

Application of this principle of rarest of rare case is judge-centric meaning thereby

The Bachan Singh threshold of the rarest of rare cases has been applied most variedly and
inconsistently by various High Courts as well as the Supreme Court. It appears that even
though Bachan Singh intended “principled sentencing”, sentencing has now really become
“judge-centric”.

In this context, it is important to refer to Justice P.N. Bhagwati’s dissenting judgment

in Bachan Singh where he said that when a judge is called upon to decide whether an accused
should be killed or permitted to live, his conclusion would depend to a large extent on his
approach and attitude, his predilections and preconceptions and his value system and social
philosophy. This renders the imposition of the death penalty arbitrary and capricious.

Justice Bhagwati rightly pointed out in Bachan Singh that the decisions of a judge regarding
the imposition of the death penalty were based on several factors that were specific to the
judge, including his personal predilections. The decision of the South African Constitutional
Court in S. vs Makwanyane also holds that at every stage of process, there is an element of
chance and the outcome may be dependent upon factors such as the way the case is
investigated by the police, the way the case is presented by the prosecutor, how effectively
the accused is defended, the personality and attitude of the trial judge as well as the appellate
judges, and lack of financial means to engage seasoned advocates. The decision admits that it
is difficult to lay down a system which is perfect and avoids arbitrariness completely.

In this regard, it is also relevant to refer to the American experience with imposition of the
death penalty. Three judges in the case of Gregg said that the death penalty experiment had
failed and that the death penalty experiment was a discredit to the law because of its arbitrary
and unprincipled use.

It was admitted by the judges in Swamy Shraddananda’s decision that the death penalty was
not free from the subjective element and the confirmation of death sentence and its
commutation by the Supreme Court depended a lot on the personal predilection of the judges
constituting the Bench. The 2007 decision in Aloke Dutta’s case also expresses helplessness

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after noticing that different criteria have been adopted by different Benches of the Supreme
Court where offences were similar in nature. No sentencing policy in clear-cut terms has been
adopted by the Supreme Court. Amongst these varying decisions, one can witness several
disturbing trends. There have been instances where similarly placed accused in identical
circumstances in the same case have been given different punishments of life imprisonment
and the death sentence because they had gone before different Benches. This was seen in the
1982 decision in Harbans Singh.

Now the only way to correct these contradictions and inconsistencies amongst different
Benches is to refer the matter to a larger Bench. We must also be mindful of the changing
global trends where most countries have abolished the death penalty in law or practice. As of
June 2012, a total of 141 nations (which constitute over two-thirds of the countries in the
world) had abolished the death penalty in law or practice. Europe is most death penalty-free,
while in the Americas only some Caribbean states and the United States use the death
penalty. Of the 54 countries in Africa, 38 are abolitionist in law or practice. Central Asia and
the Pacific region are also death penalty-free.

In giving the solution of the rarest of rare cases for imposing the death penalty, the five-judge
Bench of the Supreme Court gave sufficient weight to the mitigating circumstances of the
crime and the criminal. However, the decision in Ravji, which was decided by two judges,
held that it is the gravity of the crime and not the criminal which is relevant to decide the
appropriate punishment. Thus, the decision in Ravji was in direct conflict with Bachan Singh.
The court in Bariyar’s case1 noticed the conflict in these two decisions and held that seven of
the decisions of the Supreme Court awarding death sentence were rendered per incuriam.

However, even after the decision in Bariyar, the courts still followed the precedent in Ravji’s
case. Clearly, the two prisoners in Ravji’s2 case who were wrongly sentenced to death were
executed as a result of these flawed judgments, constituting the gravest known miscarriages
of justice in the history of independent India. Therefore, it is extremely important and
necessary that in order to prevent such miscarriages of justice, the five new convicts
identified in Sangeet’s decision must also get commutation.

‘Special reasons’

1
Santosh Kumar Bariyar v. State of Maharashtra (2009) 6 SCC 498
2
Ram Chandra vs State Of Rajasthan 1996 AIR 787, 1996 SCC (2) 175

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In Bachan Singh, the Supreme Court explained what the phrase “special reasons” meant in
this provision. It said: “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” (paragraphs 161 at page 738
of the judgment). In paragraph 163, Bachan Singh further noted: “....in fixing the degree of
punishment or making the choice of sentence for various offences, including one under
Section 302 of [the] Penal Code, the court should not confine its consideration ‘principally’
or merely to the circumstances connected with the particular crime, but also give due
consideration to the circumstances of the criminal”. The circumstances of the criminal would
include, as the Supreme Court held in one case, the mindset of the criminal and whether he
was under the grip of social factors such as caste.

In Bariyar, the Supreme Court got an opportunity to explain this further: “The rarest of rare
dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life
imprisonment is the rule and death punishment is an exception. It is a settled law of
interpretation that exceptions are to be construed narrowly. That being the case, the rarest of
rare dictum places an extraordinary burden on the court, in case it selects death penalty as the
favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions
ingrained in the rarest of rare dictum.”

The ratio decidendi (the legal principle which forms the basis of the judgment) of Bachan
Singh is that the death sentence is constitutional if it is prescribed as an alternative for the
offence of murder and if the normal sentence prescribed by law for murder is imprisonment
for life. In Bachan Singh, the court also insisted that a court could impose the death penalty
only in the rarest of rare cases when the alternative option is unquestionably foreclosed. (The
ratio decidendi of a five-judge Bench would be binding on other Benches of the Supreme
Court, unless overruled by a Bench comprising more than five judges. Bachan Singh was
delivered by a five-judge Constitution Bench.)

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COMMENT
In India, those who favour the death penalty rely on the majority judgment by the Supreme
Court in Bachan Singh vs State of Punjab in 1980. The SC held the imposition of the death
penalty to be legal, but it comforted opponents of the death penalty by stating that it should
be imposed only in “the rarest of the rare cases”. Every imposition of the death sentence on a
convict now states ritually that it is a rarest of the rare case. This mantra is not only vague but
also highly arbitrary, subjective and discriminatory. We may ask, how does one distinguish
between an ordinary murder and a “rare” murder, and among “rare” murders, how does one
find the double-distilled essence of “the rarest” murder. It does not help to describe a murder
as brutal, grotesque, heinous and so on, as judges invariably do. An ordinary person could
fairly so characterise every murder. Ultimately, judges award the death penalty or life
depending on their own sensitivity and values. Each judge will easily find “special reasons”
for awarding the death sentence according to his own perception of the gravity of the murder.
Justice P.N. Bhagwati, who wrote a powerful dissent in the Bachan Singh case, two years
later showed how arbitrary this formula was when one bench of the SC imposed the death
penalty on one of the murderers and another bench later did not impose it on another
murderer in the same case.

India stands with Afghanistan, Pakistan and Bangladesh in holding on to the death penalty.
We are one of the nations that retain the death penalty but rarely execute people. The
criterion of the rarest of rare cases has not resulted in any satisfactory solution at all. The
Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own
terms. Courts and governments worldwide have tried to lay down satisfactory and clear
criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.

For this reason, the global trend is increasingly and overwhelmingly in favour of
abolitionism. We would be deluding ourselves if we were to believe that the execution of a
few persons sentenced to death will provide a solution to the unacceptably high rate of crime.
In reality, capital punishment neither has any deterrent effect, nor can it be counted as a
preventive measure. Therefore, India should join the list of such abolitionists as the legal
safeguards aimed at avoiding miscarriage of justice have failed to deliver. The decision to
substitute the death penalty with imprisonment for the entire life (without remission) for the
rarest of rare cases should be decided appropriately by the legislature.

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A common justification for the death penalty is that it is revenge and retaliation for murder. It
is said that the revulsion felt by society against the murderer can be satisfied only by his
death. It is not realised that revenge is an elementary passion that lacks refinement. A
civilised society that believes in the dignity of the human person cannot have retaliation as a
justification for punishment. A former president of Chile, Eduardo Frei, said, “I cannot
believe that to punish the person that kills, the state should in its turn kill. The death penalty
is as inhuman as the crime which motivates it.” The aspect of retribution being unjustified
was not considered by the majority in the Bachan Singh case.

One of the most important reasons to abolish the death penalty is the brutality of hanging the
convict. In India, we have retained this method to carry out the death penalty. The hanging of
a convict is carried out in secrecy. Hanging seeks to break the neck by withdrawing the trap
on which the convict stands. Often the neck does not break by the drop and the prisoner
strangles to death. If the drop is too short, there could be slow and agonising death by
strangulation. There is considerable evidence to show that hangings are often cruelly botched.
That is why it has been replaced in US states with lethal injection. But even with lethal
injections, the execution is sometimes botched and painful, which has led to a demand in the
US for its abolition. The California court recently held it to be cruel and illegal.

We cannot depend on Parliament to abolish the death penalty, as was done in the UK. The
Indian Parliament is not sensitive to such matters. It has not taken any initiative on abolishing
the punishment for gay relationships or to legalise euthanasia. In a landmark decision, our SC
on January 21 held that prolonged delay in the disposal of the mercy petition by the president,
causing agony to a death-row convict, is a good ground to set aside the sentence and
commute it to life imprisonment. The next step for the humanitarian jurisprudence of our SC
is to reconsider the majority judgment in the Bachan Singh case and put India in the category
of states in the world that have abolished the death penalty.