Ishan Phogat

IEC UNIVERSITY

RESEARCH TOPIC

BATCH (2019- 2020)

DEATH PEANLTY “RAREST OF RARE DOCTRINE” : NEED FOR

POLICY

Submitted By-

Ishan Phogat

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S.No. TABLE OF CONTENT Page No.

1. INTRODUCTION 3

2. DEATH PENALTY: MEANING AND SCOPE 4

3. JUDICIAL INTERPRETATION: NO UNIFORMITY 7

4. THE’ RAREST OF THE RARE’ 11

5. CONCLUSION: NEED FOR A SENTENCING POLICY 24

6. SUGGESTIONS 25

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INTRODUCTION

From a very long time, there have been countless debates on the subject of awarding death
sentence to specific criminals. The Supreme Court of India in its decision in Bachan Singh vs.
State of Punjab1 came up with a new doctrine specifically for awarding the punishment of death
to the accused i.e. ‘the rarest of the rare’ doctrine, which involved some factors to be kept in
mind by the judges but ultimately giving way to judicial discretion. After the said case, many
developments have been done with respect to the same. Another landmark case i.e. Macchi
Singh vs. State of Punjab2 talked about how the guidelines laid down in the Bachan Singh case
are to be applied which have been reiterated by the Apex Court time and again.

But the question which arises with every such case is whether these guidelines are being
followed thoroughly by the judges in such controversial circumstances. This problem arises
because death penalty is not an established rule but an exception to the rule which the judges
have discretion to go for. Judges after all are humans and may differ in their opinions, therefore
keeping the whole debate alive for so long. The judicial pronouncement rendered by the Apex
Court in Santosh Kumar Bariyar vs. State of Maharashtra3, judges did not award death penalty
to the accused giving their reasons which were inconsistent with the Bachan Singh case
guidelines. Therefore, the approach which was to be principle based has proved to be judge-
centric.

This paper aims to evaluate these aspects related to the subject, specifically the interpretation of
the ‘rarest of the rare’ doctrine by the Courts. How judges have differed and why there is
uncertainty and inconsistency in awarding the extreme punishment is also the major aspect
which this paper tries to evaluate. The paper also tries to analyse the 262 nd Law Commission’s
Report (2015) on ‘death penalty’ keeping in regard the ever-existing tussle between abolitionists
and retentionists’ approach.

1
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India).
2
Machhi Singh v. State of Punjab, (1983) 3 S.C.C. 470 (India).
3
Santosh Kumar Bariyar v. State of Maharashtra (2009) 6 S.C.C.498 (India).

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DEATH PENALTY: MEANING AND SCOPE:

Death penalty, or in terms of law called ‘Capital Punishment’ is the extreme punishment given to
the offenders whereby the offender is killed for a specified act committed. ‘Specified act’ does
not mean specific in its literal sense. It changes or is modified by the interpreters from time to
time. Also, it depends on different laws prevailing in countries which still exercise this option
what this ‘specific act’ would include. The sentence given by the courts in this regard is called
death sentence and the act which is carried out is called ‘execution’.

In India, the extreme punishment today also has its space in the provisions of the main statutes of
criminal law. So, there are offences under the Indian Penal Code of 1860 which include capital
punishment in its ambit to be given to the offender. Some of the offences are :

 Criminal Conspiracy (S-120-B)

 Waging or attempting to wage war against the Government of India (S-121)
 Abetment of mutiny (S-132)
 Murder (S-302)
 Dacoity with murder (S-396)
 Rape (S-376)

Acts like NDPS (Narcotic Drugs and Psychotropic Substances Act), 1985 and anti-terrorism
laws also have capital punishment for the offenders.

Death Penalty has its inception in the Code of Hammurabi of 18 th Century B.C. So, it has been in
force since very long. History tells us that when there was no scope for governments and the
people were ruled by kings, capital punishment was a normal rule. There was no opposition to it
and people had accustomed themselves to the rule at that time. Many thinkers or philosophers
have written on the controversial nature of awarding death as a punishment to a human being.
Cesare Beccaria in his work4 talked about the idea of death penalty’s abolishment.

The modern utilitarianism guru Jeremy Bentham, was also in favor of abolishing capital
punishment. Karl Marx also gave a similar idea that carrying out public execution has a negative
effect on the people.
4

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In the 19th century, many states that were authoritarian in nature used capital punishment as a
common means to deter and maintain their power. For example, Joseph Stalin in Soviet Union
and the Chinese Cultural Revolution of 1966-1976 where approximately eight lacs people were
executed. The main instance that put a question mark on this concept was the coming in of
UDHR (Universal Declaration of Human Rights), 1948 which was put into effect after the
destruction caused by World War – II. Since then, various civil rights organizations have been
created in order to uphold basic human rights and all these organizations speak through their
objectives that capital punishment should be abolished by all the states, if not now, then through
progressive realization of the same.

Some of these notable organizations are “World Coalition against the Death Penalty, Amicus,
Amnesty International, Human Rights Watch etc.” 5 Various conventions have also played very
important roles in ensuring rights to people all over the world like ICCPR6, ECHR7, ICESCR8
etc.

Now, in India, the question of death penalty is in dire straits because of various factors. Forget
about abolishment of capital punishment, the first question that comes to mind is that on what
basis is the punishment awarded. Abolishing capital punishment is another question which shall
be dealt later. This is because of the fact that the recommendations given by the 35th Law
Commission Report (1967) was against abolishing the extreme punishment. The reasons given
by the Law Commission was:

“It is difficult to rule out the validity of, or the strength behind, many of the arguments for
abolition. Nor does the Commission treat lightly the argument of irrevocability of the sentence of
death, the need for a modern approach, the severity of capital punishment, and the strong feeling
5
http://www.deathpenaltyworldwide.org/links.cfm

6
International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession
by General Assembly resolution 2200A (XXI) of 16 December 1966

7
European Convention on Human Rights (ECHR)

8
International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification
and accession by General Assembly resolution 2200A (XXI) of 16 December 1966

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shown by certain sections of public opinion, in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness
of its area, to the 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. Arguments which would be valid in respect of one area of the world may not
hold good in respect of another area in this context. Similarly, even if abolition in some parts of
India may not make a material difference, it may be fraught with serious consequences in other
parts. On a consideration of all the issues involved, the Commission is of the opinion that capital
punishment should be retained in the present state of the country.”

So, in 1967, the Law Commission kept the ideas of the Constitution makers in mind thereby
retaining the death penalty as far as it is imposed by ‘procedure established by law’.

Another major treaty came when the period of human rights was at a boom i.e. The Second
Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. “It is the only
treaty directly concerned with abolishing the death penalty, which is open to signatures from all
countries in the world. It came into force in 1991, and has 81 states parties and 3 signatories.
India has not signed this treaty. Article 1 of the Second Optional Protocol states that “No one
within the jurisdiction of a State Party to the present Protocol shall be executed”, and that “Each
State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”
No reservations are permitted to the Second Optional Protocol, “except for a reservation made at
the time of ratification or accession that provides for the application of the death penalty in time
of war pursuant to a conviction for a most serious crime of a military nature committed during
wartime.” Some state parties have made such reservations.”9

Apart from all the above mentioned international covenants mentioning about the need to abolish
capital punishment, India has still not abolished the same. It would be appropriate to cite the
262nd Law Commission Report which has recommended the abolition :

9
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition
of the death penalty Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989

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“The march of our own jurisprudence -- from removing the requirement of giving special reasons
for imposing life imprisonment instead of death in 1955; to requiring special reasons for
imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the
Supreme Court to the rarest of rare cases – shows the direction in which we have to head.
Informed also by the expanded and deepened contents and horizons of the right to life and
strengthened due process requirements in the interactions between the state and the individual,
prevailing standards of constitutional morality and human dignity, the Commission feels that
time has come for India to move towards abolition of the death penalty.”

It will take time for such recommendation to take effect in a country like India, but until then, it
is necessary for having a sentencing policy in awarding death to an offender because of biasness
of judges or the arbitrary imposition that has been seen since a very long time even after
reducing the scope of giving death penalty in our country.

To understand the problem with more clarity, it is very much required to analyze various
decisions of the judiciary which shall be discussed in the succeeding chapters.

JUDICIAL INTERPRETATION: NO UNIFORMITY

The interpretation as done by the Indian judiciary with respect to awarding death penalty can be
best understood if we divide it in three parts i.e. Pre-Bachan Singh scenario, the Bachan Singh
case and Post-Bachan Singh time frame.

Before directly jumping on the ‘rarest of the rare’ doctrine that came through the Bachan
Singh10case, an analysis of cases that came before would make things about the interpretation
more clear.

 In Jagmohan Singh v. State of U.P.11(1973), death penalty was challenged on basis of its
constitutionality for the first time. The arguments given by the petitioners were that such
punishment is violative of A-19(1) of the Constitution. 12 Another argument was that the
provisions of Code Of Criminal Procedure, 1973 gave discretion to the judges which is
not based on any sentencing policy required from the legislature. Also, it was argued that

10
Bachan Singh v. State of Punjab, AIR 1980 SC 898
11
Jagmohan Singh v. State of U.P., AIR 1973 SC 947
12
Article-19(1), The Constitution of India, 1949

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uncontrolled and unguided discretion given to judges is violative of A-14 13 as two

persons found guilty of murder on similar facts in different cases could be treated
differently depending on the mentality of the judges in both the cases which can differ.
No legal provisions in the laws at that time existed which could facilitate judges to make
a choice between imprisonment for life and death penalty. The Cr.P.C. and the Indian
Evidence Act only talk about the guilt part of the accused and its determination. And
therefore, S-302 of the Indian Penal Code14 should be held unconstitutional.
The Supreme Court, rejecting the arguments stated that ‘special reasons’ as required by
S-354(3) of the Cr.P.C.15 serves as a guide to the judge on the basis of which death
penalty has to be given thus maintaining the constitutionality of death penalty through
this case.

There are another two landmark cases which have to be read simultaneously because there is a
very thin line of difference between the both of them.

 Perumal v. State of Kerala16(1975):

Facts :- The accused, Perumal was convicted by the Sessions Judge and charged under S-
302, IPC for causing the death of Varkey John alias Kunjukutty. He was sentenced to
death. It was found after the completion of the trial that the accused committed
premeditated murder of the deceased with a dagger. Thus, High Court also confirmed the
death sentence. Perumal filed a Special Leave Petition in the Hon’ble Supreme Court of
India.
Issue:- Whether awarding life imprisonment would be a more suitable option in the case.
The Supreme Court restricted itself in deciding the question of sentence only. The Apex
Court agreed on the fact that the murder was not caused under sudden impulse, therefore
it would not be fit to interfere with the sentence awarded to the accused, thereby
dismissing the appeal.

13
Article-14, The Constitution of India, 1949
14
Section-302, Indian Penal Code, 1860
15
Section-354(3), The Code of Criminal Procedure, 1973
16
Perumal Perumal Alias Thankachan vs The State Of Kerala, AIR 1975 SC 95

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 Balwant Singh v. State of Punjab17(1976):

Facts:- The accused was convicted under S-302 of IPC for committing the murder of the
deceased by giving him ‘karha prasad’ which led to his death within four hours of
consuming it. The Trial Court sentenced the accused to death which was confirmed by
the High Court. The High Court relied on the decisions given in Mangal Singh v. State of
U.P18. and Perumal v. State of Kerala19. The case went to the Supreme Court through
Special Leave Petition.
Issue:- Whether death penalty be commuted to life imprisonment.
It was decided by the Apex Court that death penalty in this case cannot be given because
of absence of ‘special reasons’. The reasoning for this judgment is explained below.

The difference : In Perumal case, there was application of the Amended Code of 1955 20, which
gave full discretion to the judge to decide whether the convict should be awarded life
imprisonment or death. The act was committed by Perumal before the coming in of Cr.P.C. 1973
which came into effect from April 1st, 1974.

On the other hand, in Balwant Singh’s case, the act was committed on April 13 th, 1974, thus
implying that the new code would apply which contained S-354(3) which requires the giving of
special reasons by the judge for awarding the extreme punishment. So, after the amendment of
the code in 1973, imprisonment for life became the normal rule and death penalty the exception;
the complete opposite of the earlier existing scenario. Therefore, the Supreme Court found that
the High Court had erred in relying on the principle of absence of extenuating circumstances
which had the application of the earlier Code.

So, applying the New Code, the Court commuted the punishment to imprisonment for life due to
absence of any special reasons required by the said provision of the new code.

Although the Court gave logical reasoning for commuting the death sentence, but it itself took a
step back by saying that “it is unnecessary nor it is possible to make a catalogue of ‘special

17
Balwant Singh v. State of Punjab, AIR 1976 SC 230
18
Mangal Singh v. State of U.P., AIR 1975 SC 76
19
Supra note 15
20

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reasons’”, but gave a few indications for the same like crimes committed by a hardened or
professional criminal, or the crime is brutal in nature or the act is done on a helpless child or
woman.

So, by not making it clear what these special reasons would cover, the Court again left the issue
of awarding capital punishment solely on the judges still without any guidelines.

AMBARAM vs. STATE OF M.P. (AIR 1976 SC 2196)

FACTS-:

The appellant was tried alongwith four other persons for the double murder of Kachru &
Parwat. It is said it was the appellant who shot dead Kachru, while his companions as resulted
Parwat to death with Sharuedged weapons a lathi. Ambaram was tried and convicted for
murder of one Kachru by the Sessions Judge and sentenced to death. The High Court of
Madhya Pradesh has confirmed the sentence, of death. His appeal limited to the question of
sentence, by special leave, before Supreme Court of India.

ISSUE-:

Whether the death penalty should be commuted to life imprisonment or not?

HELD-:

The trail Court recorder and convicted the appellant after the Code of Criminal Procedure, 1973
came into force. Whereas, the High Court do not appear to have adverted at all to the changes
brought about in the matter of awarding a death sentence by Section 354(3) of the New Code.
The Hon’ble Supreme Court stand on a footing that under Sub-section (5) of Section 367 of the
CrPC, 1898, as it stood before the Amending Act 26 of 1955, enjoined upon the Court
convicting a person of capital offence, to give reasons why imprisonment for life, instead of a
death sentence was being awarded. That rule, and death sentence an exception in the matter of
awarding punishment for murder. Now, if a death sentence is to be awarded to a person found
guilty of murder, the Court awarding it has to justify it by giving special reasons.

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Analysis-: Therefore, The High Court has not given any special reasons why Ambaram has
been singled out for the award of the extreme penalty nor the apex court find any special
reasons to treat him differently in the matter of sentence from his companions, on this ground
the apex Court commuted the death sentence to that of life imprisonment.

THE’ RAREST OF THE RARE’ Case:

 Bachan Singh v. State of Punjab21(1980):This was the case in which for the first time,
the courts used a new doctrine to determine or categorize cases that would invite death
penalty to be awarded to the convict
Facts:- The appellant Bachan Singh was tried and convicted and sentenced to death by
the Sessions Judge for the murders of Desa Singh, Durga Bai and Veeran Bai. He had
also caused grievous hurt to the witness Vidya Bai. Also, Bachan Singh had completed
his term of imprisonment awarded to him for the murder of his own wife and while he
was living with his cousin, he did the acts for which he was given death penalty. The
High Court confirmed the death sentence. The appellant went to the Supreme Court
through a Special Leave Petition. So the Apex court had to decide that whether facts
found out by the courts below would be ‘special reasons’ for awarding death sentence
under Section-354(3) of the Cr.P.C.,1973.
Issues:-
(i) Whether death penalty provided for the offence of murder in S-302 IPC is
unconstitutional?
(ii) If the answer to the above question is no, then whether the procedure of sentencing
under the relevant provision of Cr.P.C. is unconstitutional for the fact that it gives
unguided and untrammeled discretion to the judges which leads to arbitrary imposition of
taking the convict’s life.
Decision:- The judgment was decided in ratio by majority of 4:1 with only Justice P.N.
Bhagwati dissenting.
The judges while dealing with both the issues considered two points.
1. Whether Article-19 is at all applicable for judging the validity of S-302 IPC?
2. Whether the impugned limb of S-302 IPC contravenes Article-21?

21
Supra note 9

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For dealing with the first issue, the majority decided that the Section-302 IPC ‘violates
neither the letter nor the ethos of A-19’. And as far as A-21 is concerned, the words
‘procedure established by law’ which shall be fair, just and reasonable were included by
the makers of the Constitution because they were fully aware of the existence of capital
punishment in our criminal statute.

The 2nd issue was dealt by the court by saying that the judges had to give ‘special reasons’
for awarding death penalty where life imprisonment is an alternative. Therefore, the
judges have duty to follow the provision’s language and thus it is not giving unfettered
discretionary powers to the judges. While deciding the case, the majority came up with
four guidelines which gave birth to the ‘rarest of the rare case’ doctrine. These guidelines
are:

1. When the act is the gravest case of extreme culpability.

2. Balance between aggravating and mitigating circumstances.
3. Life Imprisonment is the rule and Death Penalty is the exception.
4. Crime is enormous in proportion.

Through this judgment, the Indian judiciary limited the scope of awarding death penalty but the
whole issue of this is so controversial in nature that again a major loophole was left by the Apex
Court in regard to the 2 nd guideline mentioned above. Court did not make any remarks as to what
would fall under aggravating and mitigating circumstances. To put it simply, again the discretion
was left to the judges who may apply different principles in different cases of the same nature.

It is worth noting that Justice P.N. Bhagwati’s dissenting opinion came after two years of the
judgment. He expressed his views that because there are ‘no legislative guidelines as to when life
can be taken by law’, S-302 IPC is ultravires of Article-14 and 21 and therefore unconstitutional
and void and shall be struck down. What Justice Bhagwati said after the 1980 judgment still
exists today as even now there is no sentencing policy framed by the legislature.

MACCHI SINGH vs. STATE OF PUNJAB22

22
AIR 1983 SC 957

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FACTS

A feud between two families has resulted in tragic consequences. Seventeen lives were lost in the
course of a series of five incidents which occurred in quick succession in five different villages,
situated in the vicinity of each other, in Punjab, on the night between August 12 and August 13,
1977. The seventeen persons who lost their lives and the three who substained injuries included
men, women and children related to one Amar Singh and his sister Piaro Bai.

In this connection one Machhi Singh and his eleven companions, close relatives and associates
were prosecuted in five sessions cases, each pertaining to the concerned village in which the
killings took place. Machhi Singh was the common accused at each trial.

Four of them were awarded death sentence, whereas sentence of imprisonment for life was
imposed on rest of them. They were also convicted for different offences and appropriate
punishment was inflicted on each of them in that behalf. The order of conviction and sentence
gave rise to five murder references and fourteen appeals by the convicts before the High Court of
Punjab and Haryana. Having lost their appeals and the death sentences having been con-firmed,
the appellants have come in appeal by way of special leave.

Acts/Rules/Orders: Indian Penal Code - Sections 149 and 302; Criminal Procedure Code
(CrPC) - Section 313

ISSUES INVOLVED

 Application of rarest of rare cases rule in question– when community feels that for sake
of self preservation killer had to be killed community may withdraw protection by
sanctioning death penalty

 A synthesis has emerged in 'Bachan Singh v. State of Punjab wherein the "rarest-of-rare-
cases" formula for imposing death sentence in a murder case has been evolved by this
Court.

 The Court will address the issue of Identification of the guidelines spelled out in 'Bachan
Singh' in order to determine whether or not death sentence should be imposed.

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Motive: It is exhaustively dealt by the High Court. Suffice it to say that reprisal (Counter
attack) was the motive for the commission of the crime.

HELD

 We are of the opinion that insofar as these three appellants are concerned the rarest of
rare cases rule prescribed in Bachan Singh's case is clearly attracted and sentence of death
is called for.

 We are unable to persuade: ourselves that a sentence of imprisonment for life will be
adequate in the circumstances of the crime

 We therefore fully uphold the view concurrently taken by the Sessions Court and the
High Court that extreme penalty of death requires to be imposed on appellants (1)
Machhi Singh (2) Kashmir Singh son of Arjan Singh (3) Jagir Singh.

As per the guidelines spelled out in Bacchan Singh, the proposition that emerged the Court
would consider the cumulative effect of both these aspects and normally, it may not be very
appropriate for the Court to decide the most significant aspect of sentencing policy with
reference to one of the classes under any of the following heads while completely ignoring their
classes under other heads. To balance the two is the primary duty of the Court. It will be
appropriate for the Court to come to a final conclusion upon balancing the exercise that would
help to administer the criminal justice system better and provide an effective and meaningful
reasoning by the Court as contemplated under Section 354(3) Criminal Procedure Code.

Thereafter the Court enunciated the two categories of factors to be considered thus:

Aggravating Circumstances

 The offences relating to the commission of heinous crimes like murder, rape, armed
dacoity, kidnapping etc. by the accused with a previous record of conviction for felony
or offences committed by the person having a substantial history of serious assaults and
criminal convictions.

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 The offence was committed while the offender was already engaged in the commission
of another serious offence.

 The offence was committed with the intention to create a fear in the public al large and
was committed in a public place by a weapon which clearly could be dangerous to the
life of more than one person.

 The offence of murder was committed for ransom or like offences to receive money or
monetary benefits.

 Killing by hiring the killer.

 The offence was committed disgracefully for want only while involving inhumane
treatment and torture to the victim.

 The offence was committed by a person while in lawful custody.

 The murder or the offence was committed, to prevent a person lawfully carrying out his
duty like arrest or custody in a place of lawful confinement of himself oi another. For
instance, murder is of a person who had acted in lawful discharge of his duty under
Section 43, Criminal Procedure Code.

 When the crime is enormous in proportion like making an attempt of murder ol the
entire family or members of a particular community.
 When the victim is innocent, helpless or a person relies upon the trust of relationship and
social norms, like a child, helpless woman, a daughter or a niece staying with a father
and is inflicted with the crime by such a trusted person.

 When murder is committed for a motive which evidences total depravity and meanness.

 When there is a cold blooded murder without provocation.

 The crime is committed so brutally that it pricks or shocks not only the judicial
conscience but even the conscience of the society.
Mitigating Circumstances

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 The manner and circumstances in and under which the offence was committed, for
example, extreme mental or emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.

 The age of the accused is a relevant consideration but not a determinative factor by itself.
 The chances of the accused of not indulging in commission of the crime again and the
probability of the accused being reformed and rehabilitated.

 The condition of the accused shows that he was mentally defective and the defect
impaired his capacity to appreciate the circumstances of his criminal conduct.
 The circumstances which, in normal course of life, would render such a behaviour
possible and could have the effect of giving rise to mental imbalance in that given
situation like persistent harassment or, in fact, leading to such a peak of human behaviour
that, in the facts and circumstances of the case, the accused believed that he was morally
justified in committing the offence.
 Where the Court upon proper appreciation of evidence is of the view that the crime was
not committed in a pre-ordained manner and that the death resulted in the course of
commission of another crime and that there was a possibility of it being construed as
consequences to the commission of the primary crime.

 Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though
prosecution has brought home the guilt of the accused.
Therefore, The Court has to strike a balance between the two and see towards which side the
scale/balance of justice tilts. The principle of proportion between the crime and the punishment
is the principle of ‘just deserts’ that serves as the foundation of every criminal sentence that is
justifiable. In other words, the ‘doctrine of proportionality’ has a valuable application to the
sentencing policy under the Indian criminal jurisprudence. It has to be realized that every
member of the community is able to live with safety without his or her own life being
endangered because of the protective arm of the community and on account of the rule of law
enforced by it.

 Maru Ram v. Union of India23(1981):

23
Maru Ram v. Union of India, AIR 1980 SC 2147

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Facts:- In 1978, Cr.P.C. was amended by virtue of which Section-433 A 24 was added
which said that a convict whose death sentence has been commuted to life imprisonment
has to mandatorily serve minimum 14 years imprisonment. This was done by the Central
Government because of the reason that many death row convicts were being given
freedom within five or six years of their serving time. The petitioners in this case
challenged the constitutional validity of the added provision arguing that there is
violation of Articles 14, 20(1), 72 and 161 of the Indian Constitution.
Issue:- Whether the impugned section is ultravires being violative of A-14, 20(1), 72 and
161 of the Constitution of India.
Decision:- As for Article-14 and 20(1), the Honourable Court held that the section will
have prospective effect i.e. from 18th December, 1978. Thus, it will not be applicable to
those cases which were decided before the said date of enforcement of the provision.
Thus, short sentencing can be claimed by the prisoners whose case were decided before
18th Dec, 1978.
For disposing of the challenges to Articles 72 and 161, the Court held that the impugned
provision ‘does not affect or fetter the constitutional powers of President and the
Governor to grant full pardon’. Also, S-433 A puts restriction on powers of the
Government under S-432 and not A-72 and 161. The court said that ‘exercise of powers
under S-433 A and Articles 72/161 is a distinction without a difference’.
Justice Fazal Ali wrote that although powers under A-72/161 cannot be modified or
altered but the legislative intent through section-433 A should not be in conflict. Higher
the power, the more cautiously it is to be used. The said provision’s vires was upheld. In
Ashok Kumar v. Union of India25, this case was followed as the accused was convicted on
20th December, 1978.
The loophole in this case was that the determining factor of the application of this
provision was solely based on the judgment given by the trial court. This should have
been kept in mind by the judges because two accused may get charged for an offence in
1975 in different cases but the decision may differ. Thus, making the process inconsistent
as a whole.

24
S-433 A, The Code of Criminal Procedure, added by amendment of 1978
25

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 In Alauddin v. State of Bihar26(1989), it was held that ‘it is imperative that where a
sentence of severity is imposed, the judge should indicate the basis upon which he
considers the sentence of that magnitude justified. Unless there are special reasons
required by S-354(3) Cr.P.C., which can justify such a severe sentence, a judge should
not award death sentence. If it is found by the judge that there is not reasonable accuracy
in awarding death, then he must always go for life imprisonment.’ This statement
reaffirms the fact that in India, death penalty is an exception and cannot be imposed
arbitrarily. But again, when there is no sentencing procedure and the ‘special reasons’ are
decided on the whims and fancies of the particular judge deciding the case, what is the
point of such statements.
 Another case which is related to the clemency petition procedure is Dhananjoy
Chatterjee v. State of West Bengal27 (2004), A big problem in the criminal system of our
country is that there is already a lot of delay in deciding a matter. And when a death row
convict’s mercy petition is put on hold for many years, it has to be considered as inhuman
treatment of that particular individual because of the constant fear leading to negative
effects on mental as well as physical health.
Facts:- The appellant was found guilty of offences punishable under Sections- 302, 376
and 380 of IPC by Sessions Court. He was sentenced to death on the charges framed.
Appellant filed a criminal appeal in the High Court which was rejected.
SLP was filed by the appellant which was again rejected. The appellant then filed a
mercy petition under A-161 to the Governor of West Bengal. Now as per the law of the
land, the Governor has the power to grant pardon to the appellant by going through the
petition. But things took a twist in this case and the appellant was informed by the prison
authorities that the Governor does not wish to interfere in this matter which is a severe
blow to the provision laid down in the supreme law.
The appellant then filed a writ which was dismissed by a single judge bench of the
Calcutta High Court. Finally the appellant filed a writ seeking stay of execution and
commutation of death sentence to life imprisonment before Division Bench of High
Court which dismissed his petition.

26
Allauddin Mian & Ors. Sharif Mian & ... vs State Of Bihar, AIR 1989 SC 1456
27
Dhananjay Chatterjee Alias Dhana vs State Of W.B., (1994) 2 S.C.C. 220

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It was argued by the counsel for the appellant that the petition filed under A-161 was not
properly dealt by the authorities claiming that the Governor was not made aware of the
relevant facts of the case thus there was no proper application of mind in the case. Since
the appellant was in prison since 1991, the ‘mitigating factors’ should have been brought
to the Governor’s notice.
The Court cited many cases giving its judgment such as Kehar Singh v. Union of
India28(1989), Satpal v. State of Haryana 29(2000), Swaran Singh v. State of U.P. 30(1998)
and finally relied on guidelines as laid down in Maru Ram case, which were as follows:
- The Governor can’t be deprived of the opportunity to exercise his power in a fair and
just manner.

Court concluded that State Government had failed on its part to provide the Governor
with necessary details about the case. Thus, the Court directed the respondent authorities
to put up the mercy petition filed in 1994 and bring relevant facts to the notice of the
Governor for appropriate decision. Finally, the court decided that delay caused due to
filing of writ petitions will not be a ground for commuting the death sentence to life
imprisonment.

The case became very popular in the Indian society and there was huge public outrage in
support of hanging the appellant. Court by saying that delay will not be a ground simply
made it clear again that there is no one to hear a death row convict’s side of the story.
Ultimately, Dhananjoy, who was in jail since 1991, was hanged in 2004 after his mercy
petition was rejected. The judgment makes us wonder that why delay was not considered
as a ground for commutation. Why there wasn’t a disposal of the mercy petition within a
reasonable period of time. Recently , a website ‘india-hanged-innocent’ 31 was created
with the aim of re-investigating the death penalty issue regarding Dhananjoy Chatterjee
which has a list of forensic documents that prove that there was no rape but still
Dhananjoy was charged for rape also.

28
Kehar Singh v. Union of India, AIR 1989 SC 653
29
Satpal v. State of Haryana, AIR
30
Swaran Singh v. State of U.P., AIR
31
http://www.india-hanged-innocent.org/

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This case can be summarized in simple words as: “Administration of criminal justice in
India is in “deep crisis,” the report says. It cites a lack of resources, an overstretched
police force and ineffective prosecution as among the reasons. As a result, the
administration of capital punishment is vulnerable to misapplication, it said. Mercy
powers have failed in acting as a final safeguard against a miscarriage of justice, the
report says, adding that the Supreme Court has pointed out gaps and illegalities in how
courts have discharged the powers.”32

 In Ram Chandra v. State of Rajasthan33(1996) , it was held by the Supreme Court held
that in fixing the degree of punishment or making the choice of sentence for various
offences including S-302 IPC, the Court should stick to the circumstances related to the
particular crime. But, it may give consideration to the circumstances of the criminal as
well in determining whether the punishment of life imprisonment would be inadequate.
But two similar cases and two different judges most lead to variation in the judgments.
Thereby, again pointing to the need of a fixed criteria through sentencing policy for the
judges to decide such cases so as to maintain uniformity.

SHATRUGHAN CHAUHAN vs. UNION OF INDIA (2014 (3) SCC 1)

Facts-: The facts of the case are as such there were 15 writ petitions filed before the Supreme
Court of India for commutation of death sentence after the rejection of mercy petitions by the
President. The court at the onset clarified that the petitions are not against the final verdict of
the Supreme Court but are about the supervening events that occurred after the final
confirmation of the death sentence by the court.

Issues-: Whether the exercise of the constitutional power vested in the executive under Article
72 and 161 has violated the fundamental rights of the petitioners?

Prayer-: Rejection of mercy petition by the President was unconstitutional to change to life
imprisonment.

 Illegal and unenforceable order passed by the Governor/ President must be rejected.
32
https://blogs.wsj.com/indiarealtime/2015/09/03/the-reasons-indias-law-commission-says-the-death-penalty-
should-be-scrapped/
33
Ram Chandra v. State of Rajasthan, AIR 1996 SC 787

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Grounds-: Delay, Insanity/Mental Illness/Schizophrenia, Solitary confinement, Judgments

Declared Per Incuriam, Procedural Lapses are supervening circumstance that invites the
attention of the Court commutation of death sentence into life imprisonment.

Held-: It dealt the petition separately and concluded that unexplained delay of twenty years,
nine years and seven years can be counted as supervening event. Though the crime committed
could be heinous but the Court kept Art. 21 of the Constitution above all and concluded that
these prisoners are humans too and these unexplained delay caused them torture. The apex
Court thus accepting that the Procedural Lapse as a supervening event commuted the death
sentence to life imprisonment.

GUIDELINES

Solitary confinement: Solitary confinement or single cell confinement prior to

rejection of the mercy petition by the President is unconstitutional.
Legal Aid: Legal aid is a fundamental right under Article 21 and inhere rights in a
convict till his last breath.
Procedure in placing the mercy petition before the President in order to minimize
the delay in the disposal of mercy petition by the majestic head and if there is no
response from the office of the President, it is the responsibility/obligation/duty of the
Ministry of Home Affairs to send periodical reminders and to provide required materials
for early decision.
Commutation of rejection of Mercy Petition by the Governor: Since the convict has
right under Article 161 to make a mercy petition to the Governor, he is entitled to be
informed in writing of the decision on that mercy petition.

Communication of Rejection of the Mercy Petition by the President: Since the

death convict has right under Article 72 to make a mercy petition to the President, he is
entitled to be informed in writing of the decision on that mercy petition. The rejection of
the mercy petition by the President should forthwith be communicated to the convict and
his family in writing.

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Death convicts are entitled as a right to receive a copy of the rejection of the mercy
petition by the President and the Governor. It discerns that this directive enables the
death victim to seek judicial review of the rejection of the mercy petition.
Minimum 14 days notice for execution: Since the prison manuals do not contain
uniform communication procedure, it shall be necessary that a minimum period of 14
days be stipulated so that the prisoner to prepare himself mentally for execution, to make
his peace with God, prepare his will and settle other earthly affairs. It shall allow the
prisoner to have a last and final meeting with his family members.
Mental Health Evaluation: Death row prisoners lose their mental balance due to
prolonged anxiety and suffering experienced on death row. Therefore, there should be
regular mental health evaluation of all death row convicts
Physical and Mental Health Reports: All prison manuals give Prison Superintendent
the discretion to stop an execution on account of the convict’s physical and mental ill
health.
Furnishing documents to the convict: The death row prisoners must be provided with
the copies of the court papers, judgments, etc. within a week by the prison authorities
Final meeting between Prisoner and his Family: It is necessary for prison authorities
to facilitate a final meeting between the condemned prisoner and his family prior to
execution that is intrinsic to humanity and justice.
Post Mortem reports: It must be obligatory to conduct compulsory post mortem on
death convicts after the execution.

SANTOSH KUMAR BARIYAR v. STATE OF MAHARASHTRA (2009) 6 S.C.C.498

Facts-: The accused were said to have hatched a conspiracy to abduct one Kartikraj (the
deceased) and to demand a ransom of Rs. 10 lacs from the victim's family. Kartikraj was the one
who was eventually kidnapped. He was working as a junior clerk in Central Railways at Pune.
His father was working as Manager in NABARD, Hyderabad. Santosh Ramraj( the younger
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brother of the deceased) received a phone call on 8th August, 2001 at his residential telephone
number disclosed by the caller, that his brother Kartikraj was in his custody. Ransom for a sum
of Rs. 10 lacs was allegedly demanded.

Apprehending that it would no longer be safe to keep the deceased alive they executed the plan,
tied the rope on to his neck and pulled he died in sometime. Then the accused chopped him into
pieces with hacksaw blade and sickle and kept them in polythene bags.

Issues-: Whether the learned Sessions Judge acted illegally in granting pardon to Kumar Gaurav
(co-accused)?

Whether the case can be said to be a `rarest of rare cases' so as to enable the courts below to
award the death penalty?

Held-: The Supreme Court of India stated that it is now clear that even the balance-sheet of
aggravating and mitigating circumstances approach invoked on a case by case basis has not
worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing
system. It can be safely said that the Bachan Singh threshold of "rarest of rare cases" has been
most variedly and inconsistently applied by the various High Courts as also this court.

This is not a case where death penalty should be imposed. The appellant, therefore, instead of
being awarded death penalty, is sentenced to undergo rigorous imprisonment for life.

CONCLUSION: NEED FOR A SENTENCING POLICY –

Looking and analyzing the trend in the disposal of cases in which death penalty is awarded in
India, it is clear that there is inconsistency and arbitrariness on the part of the Indian judiciary.

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There is a need to have a sentencing procedure particularly for such cases where death can be
awarded to the convict. This need has not emerged recently. It has been present since long which
was realized and recommended but with no proper results.

In 2001, Malimanth Committee recommended that judges should be given proper policy for
deciding the question of death sentence.

The report also said that “To bring predictability in matter of sentencing, a statutory committee
should be established to lay guidelines on sentencing under the chairmanship of either a retired
Supreme Court or High Court judge along with other members representing the prosecution,
legal profession, police, social scientists and women representatives.”

Again, in 2008, N.R. Madhav Menon Committee’s Draft National Policy on Criminal Justice
reasserted the need to have a ‘statutory sentencing policy’ in line with the UK and USA in order
to ensure that the judges do not issue varied sentences in similar cases.

These recommendations still remain on paper and have not been put into effect by the legislature
even today. Without any specific guidance, more such cases will come before the judiciary and
they will be decided as they have been. The rarest of the rare doctrine will still not be followed
because of the fact that every judge thinks differently thus can be biased and there is no question
raised on his execution of his powers. Thus, before abolishing the death penalty completely from
India (which in itself is a distant dream as of now), the need for policy in this regard is of
extreme and urgent importance so that there are no questions raised on the decisions given by the
protectors of our Constitution and justice is served unambiguously and without arbitrariness.

SUGGESTIONS-:

Hon’ble Justice Madan B. Lokur (Supreme Court of India) made a speech before the National
Law University, Delhi (2016) in context with the issues in the criminal justice system in relation

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to Death penalty. Hon’ble Justice pointed out that there are many loopholes which need to be
reformed not only in procedural law but also in substantive Law.

 Person not being able to attend the hearing, not being able to talk to lawyer, not getting
advice from his lawyer, not being able to meet the lawyer. There are tremendous
changes to be done to meet his lawyer.
 Whereas, the statement is recorded under Section 313 of Code of Criminal Procedure,
1973 where evidence is recorded in English and the person doesn’t know English at all.
 No sentencing policy on the jurisprudential aspect that whether it is deterrent or
reformative.
 Where the accused is completely illiterate, poor, no resources, poverty, social economic
factor; which the defense can put forward.
 Legal Aid
 The system not very friendly about the concept of translation, the judge doesn’t know
what the witness is saying. For e.g. the district level judgments are delivered in local
language of the state (60 to 70%) judgments in Maharashtra are in local language.
Therefore, the problem faced by judge has to deliver a judgment not only in English but
also in regional language. Since, English is not the first language that might be a
problem.
 Charge-sheet not filed in many death penalty cases till date.
 Death penalty is irreversible and unique.
 Fact- The organizations, law schools, Ngo’s can mark some new comments on the issue
because what we lack in our Country is good popular research. Various organizations,
law schools, Ngo’s can have the policy of legal aid to seek the end of justice.

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