Death Penalty : Legislative And Judicial Chronology From Bachan Singh Vs. State Of Punjab (1980) To Manoj Singh Vs. State Of M.P(2022)

Courts and critics have time and again pointed out the arbitrary subjectivity and un-guided and not – so –uniform factors driving the decision of death penalty in various courts and cases. The decision to impose death penalty is largely driven and inclined by the super-imposing factor of the crime being heinous i.e. gravity of the crime, eclipsing all other factors or circumstances that ought to be taken by court into consideration – as laid down in landmark case of Bachan Singh back in 1980 by Supreme Court, dealing with the subject of Death Penalty. The five judge bench in Bachan Singh's case laid down elaborate frame-line and guiding factors to be taken into consideration to impose death penalty and made it mandatory for the courts to weigh factors of both the criminal and the crime itself and accord due weightage to each and every relevant mitigating and aggravating factor, in parallel terms. The consideration has to scale all the mitigating and aggravating elements involved in the set of facts and circumstances of particular case in question. As an observation, it has been time and again pointed out nature of crime and its brutality are often lead as not only as dominant factors and rather in effect only factor in consideration while awarding death penalty and mitigating factors are often overlooked, as per files on

In a latest judgment by Supreme Court in Manoj &ors. vs. State of MP (2022)¹ –The court chalked out the reformative and guiding principles for administration of death penalty, streamlining the procedural aspect of it. Procedural guidelines have been re-asserted via this landmark case again, however- the real conflict lies in translating them to reality/ these directed reforms in black & white into fair applicants while actually determining and awarding the punishment to a convict, at the stage of sentencing. The latest judgment sharply points out the constant error and overlooking of Bachhan Singh's guidelines and has suggested guiding factors, parameters and fills in for the error. It re-asserts the rejection and blatant flaw of the practice of basing death sentence only on basis of crime and places emphasis on reformation being inherent to Indian Justice System. It is necessary to trace the chances of reformation if any, though they are not to be necessarily read in and rather have to be duly considered on the basis of facts and circumstances of each case.

The reason of inconsistency, often observed and termed as miscalculation or arbitrary or subjective, is that Bachan Singh chalked out a frame-line which was to be driven by various other factors and relevant information and the case did not provide for any specific mechanism and direction as to the collection of the needed information, to consider the factors in question for imposing the sentence. To understand the flaws and fill ups better in the time, one needs to trace back the timeline, development and the evolution of concept and subjectivity involved. For a better understanding, this has to read with a division of Pre- Bachhan Singh and Post Bachhan Singh practices and changes in the concept.

Before the case of Bachan Singh- (Before year 1980)-

The question of constitutionality was first addressed and upheld in Jagmohan Singh vs. State of UP (1973)² case as being not violative of Article of 14, 19 and 21. This was the case before Cr.P.C was re-enacted in 1973 –that brought in the mandate of giving of 'special reasons' for imposing death sentence in S. 354(3). Along with that S. 235(2) provided for hearing on sentence-post conviction.

In another leading case in 1976 of Santa Singh vs. State of Punjab- the process of hearing the accused on question of sentence was discussed as a significant step of trial and not a mere formality. Court pointed that accused at this stage is to be heard and given an apt opportunity to place before the court various circumstances related to sentencing. Dagdu vs. State of Maharashtra (1977)- asserted that in case of omission in hearing the accused on this by the trial court even the high court could rectify the error by hearing the accused on the question of sentence itself or remanding the case back to the trial court.

The concept of 'Special Reason' remained a subjective area after the amendment in 1973. It was discussed in Rajendra Prasad vs. State of U.P (1979)- as to existence of exceptional reasons beyond just reasons and that was to be traced from both crime and the criminal.

The Period After Bachan Singh's Case- (1980- 2000)-:

The landmark case in this concern which still stands the water and has been re-asserted time and again is Bachan Singh vs. State of Punjab³ and is termed as 'Rarest of Rare Case' . It spelled this as a category, where death sentence is to be awarded in rarest of rare cases. It was a five judge bench, judgment where Bachan Singh was convicted for murder of Desa Singh, Durga Bai, Veeran Bai and Supreme Court judges by a majority of 4 and 1 dissent – upheld the constitutional validity of death sentence under section 302 of IPC and that it doesn't violate Article 19 of Constitution, as the Article is subject to reasonable restrictions by the virtue of Article 19(2).

Following this, Section 303 IPC was struck down as unconstitutional in Mithu Singh vs. State of Punjab⁵- as the concerned section made death penalty mandatory, skipping the requirement to judge the case, as to if it falls within category of rarest of rare in particular facts of case at hand. To be precise Section 303 ruled out judicial scrutiny, consideration of factors involved, and presumed every case to be rare if it fell within the ambit of the section.

Section 354(3) of Cr.P.C⁶ provides that when under any provision- conviction is for offence punishable with death or in alternate life imprisonment or any term of years as provided, then in such a case the judgment given shall specifically state reasons for the sentence awarded by the court. If the accused is awarded the death sentence, then special reasons are to be mentioned. Death Sentence, hence has to be specifically reasoned with exceptional reasons not opted as a usual choice and for that- various factors involved are to be considered and judicially scrutinized. So, by the application of Section 354(3) of Cr.P.C the discretion of death sentence is exceptional and life imprisonment is the rule. As a famous example, Indira Gandhi Assassination Case⁷ (Kehar Singh vs. State) – was upheld to be the case of rarest of rare circumstances- duly calling for death penalty, as a duly elected PM was assassinated owing to her act under official capacity by her own security guards and hence there were no mitigating factors in this case.

Bachan Singh's case laid out some of the aggravating factors that can be considered, weighed with mitigating factors-

• The element of previous planning, pre-mediated and calculated act- accompanied by extreme or exceptional brutality.
• If murder is shadowed by exceptional depravity.
• Murder of Armed Force member or Police Force or Public Servant, when such member was on duty or as a result of anything done or attempted to be done by such member in lawful discharge of his duty, notwithstanding if victim was such member or a public servant at the time of the murder or had ceased to be so.
• Murder of person who acted in lawful discharge of his duty, illustratively under section 43 of Cr.P.C or rendered assistance to magistrate or Police Officer as required under relevant provisions.

The case discussed the need to weigh the mitigating factors involved in a particular case at hand and few that can be listed are-

• Mental Condition of the accused can be considered a mitigating factor- say if the accused was extremely disturbed or was of unsound mind.
• Tender age of the accused.
• Probability of the accused not committing criminal act of violence or being threat to the society before and after.
• The scope of reformation and rehabilitation is to be ruled out.
• Moral justification or circumstantial justification, claimed by an accused in given facts and circumstances of the act.
• If the accused acted against his will and was rather forced to commit the act.

Both Bachan Singh and Mithu Singh vs. State of Punjab asserted and re-asserted that 'when society's conscience is shocked to the root to an extent that it would expect the court to inflict death penalty as there remains no strand of reformation then it can be so awarded'. However, the decision cannot be solely driven by majority opinion, public fury or media's projection of public opinion as such.

Bachan Singh's majority rested on 3 tests as such-

• Individualised Sentencing- i.e. pertaining to particular facts and circumstances of case and the individual involved.
• Rarest of Rare case- i.e. the exceptional case.
• Principled sentencing- i.e. examining circumstances of case and comparing them to other similar cases or instances to trace and mark the exceptional rarity for death sentence.

In a leading case of Deena vs. UOI (1983)- even the constitutional validity of execution by hanging, as a method was challenged on the basis of Article 21, but was upheld to be fair and just by the Supreme Court.

Santosh Kumar Satishbhushan Bariyar vs. State (2009)- is one of the major cases where court emphasised that aggravating and mitigating circumstances related to question of sentencing must take into consideration not only the crime committed but even the criminal himself and hence the court by making a reference to the Bachhan Singh's case sought to regulate the subjectivity involved.

 Year 2010 to 2020

The courts time and again reflected on the inconsistency and subjectivity driven across the sentencing policy. In the case of Sangeet vs. State of Haryana (2012) –Supreme Court worded its concern over the inconsistent and flawed application of discretion and the subjectivity involved in the sentencing policy and the inappropriate application of the 'rarest of rare' doctrine. In another leading case, in the following year i.e. 2013-Shanker Kishan Rao Khade vs. State of Maharashtra the court again made its remark over difficulty in application the doctrine and traced its reason to be lack of data available with the court, needed for the actual application of the doctrine. Making a reference to this case, vaguely subjective differentiation between the murder that would call for death penalty and the one that would not, can be scaled out and remains in effect because it rests on the individual approach and understanding of particular circumstances. This case spelled out 3 tests – The Crime Test, The Criminal Test and The Rarest of Rare Test (with a society centric and not the judge centric approach).

Mental Condition- has been one of the consideration adjudged by the courts while deciding on to the question of death sentence and even to the extent of being one of the elements emphasised on, in cases of commutation of the death sentence. In one of the prominent case of 2014- Navneet Kaur vs. NCT of Delhi-the court commuted the death sentence of the convict on the ground of inordinate delay in execution and the mental agony faced.

It was in 2017 in case of Rishi Malhotra vs. UOI (2017) that legitimacy of execution by hanging was again discussed and frowned upon as being barbaric owing to dignity of human life and mental pain involved . It was during this case that shifting to other advanced modes of execution was discussed.

The scope of reformation came out to be one of the major mitigating circumstances to be dealt with specifically while making the choice of punishment. Rajendra Prabhatrao Wasnik vs. State of Maharashtra (2018) spelled out the consideration for it. The pointed out that it is the probability of reformation that is to be considered and not the possibility or impossibility. What can be reasonably inferred for the stance and practice is that it is the traces of chance that are to be trailed with to look for reformation and not the final effect or possible conclusions in terms of possibility. Channulal Verma vs. State (2018)- opined that there was need to review constitutionality of death penalty and he reformative effect of punishment.

Accused X vs. State of Maharashtra (2019) – It was in this leading case, that Supreme Court specifically recognised and asserted on post conviction mental illness, as one of the mitigating factors in considering commutation of sentence.

Present Scenario- (2021 and 2022)-

As for 2021 Supreme Court confirmed no death penalty in this year and commuted 5 sentences. Trial courts imposed 144 death sentences in this year, in different cases.

Looking at the record and trend, the sentencing policy has been hovered by individualistic subjectivity, lack of requisite material, improper consideration of elements and scaling of mitigating factors against other circumstances along with challenges to the constitutionality and propriety of death sentence as an option of punishment.

In the recent leading case of Supreme Court – Manoj vs. State of MP (2022) - 'The ruling and the parameters laid in Bachan Singh's case were re-asserted and Court held that death penalty comes into play only when the alternate opinion is unquestionably forfeited and the principles of Bachan Singh have to be applied to each individual case in light of their circumstances'.

In this case the court listed various guidelines to facilitate better evaluation of parameters and scope of rehabilitation-

• Consider the mitigating factors in the case.
• Trial court must elicit information from both state and accused for it¹²
• State should collect additional information in certain timeline i.e. age, family background, past and present circumstances, education, criminal antecedents, income, kind of employment etc.
• Other relevant factors should be considered- as per requirement of each case- say any ailments, unstable behaviour and such information must be conveyed to the court at the stage of sentencing and accused should have apt opportunity for bringing substance for rebuttal and to bring before the court the mitigating factors in defence.
• The conduct in the jail, work done there, activities and involvement and other relevant reports from the authorities and requisite experts.

The parameters and the concept of rarest of rare cases were always in place but what waits ahead is the practical application and the implications that follow in practical. Following the decision laid, courts have to consider offenders' circumstances specifically and see if there is something actually unusual and uncommon about the crime in question- which would render even life imprisonment inadequate as a punishment. In application the courts have to take an overall view of facts and cumulative effect of the same and hence, scale that there is no alternate but to impose death sentence even after maximum weightage being given to the available mitigating factors in favour of the accused. In the cases, courts should filter through- to see if aggravating factors exist to the full extent and no mitigating factors at all, even such cases would be rarest of rare cases to justify capital punishment. The courts should be cautious that there has to be individualised and principled sentencing instead of sweeping reliance on precedents only- as it is only then that mitigating and aggravating factors, crime and criminal can be weighed properly in light of particular case at hand, as it would differ individually being in backdrop of different circumstances and involving different human agencies, which is bound to differ as individuals. For effective application and scrutiny of every case and circumstances involved there is a need for system that effectively enables reformation and rehabilitation in real terms, as mere comparative weighing of factors and traces of rehabilitation would be of no effect until constructive rehabilitation can be worked for the convict owing to which death penalty can be avoided.¹³

The Crime and the Criminality Test:

The 'crime and criminality test' has been asserted and should be resorted to, i.e. while deciding the punishment the court should look into both the crime i.e. the act so punishable and the criminal i.e. the accused as an individual and his individual circumstances as a human being and a combined and comparative weightage is to be assigned to both the aspects.

As for effective application and practical working formula, Supreme Court held that the obligation of bringing in facts and materials to show that accused was beyond any chances of reformation of rehabilitation and that absolutely closes the option of Life Imprisonment is on State and can't be automatically read in every case to rule out the death sentence. The court and the machinery involved in the case have to work it out so as to check and consider various relevant factors like- the criminal antecedents, socio economic background, circumstances of crime, age of the accused, age of the victim, report of conduct before and after the crime or imprisonment. There is a need to take into consideration the accused's life before and after the offence, life and behaviour in prison as an aspect and the general social and economic background along with peculiar facts and circumstances involved. For the effective application and working of it –the judgment directs the concerned courts to call for reports of probation officer, prison officer and the mental health experts- to get a real picture at hand, so that the consideration factors do not remain a mere procedural formality and are rather substantively and effectively worked for.

The Death Sentence Remains:

As MP High Court in Ankit Vijayavargiya case⁸, last month stated that the parameters set for brutality or rarity for awarding death sentence are very high and it is close to impossible for courts to award death sentence in cases as the subjective approach would differ individually.

However, it has to be kept in mind with re-affirmation of Bachan Singh's guidelines and criticism around the arbitrary awarding of death sentence or stressing on the need to look into mitigating factors, that the option of awarding death sentence is not sought to be uprooted and rather has to be properly scrutinized to look for rarest of rare cases and hence the intention certainly is not to make death penalty non-existent in effect. This was recently asserted and clarified by the SC in leading case of Manoj Pratap Singh vs. State of Rajasthan(2022)¹⁴ while upholding the death sentence for convict of rape and murder of a 7.5 years old girl child. The idea is not to scale the factors or guidelines laid, such that to read in an absolute avoidance of the option of death sentence and rather is to carefully weigh in all the facts of case and look if the case falls as a very extreme case, calling for the ultimate punishment of taking away the life of the individual – as a just measure. So, the approach is not to infer guidelines as if to nullify the statutory provision providing for death sentence, as the provision has already passed the judicial review scrutiny and stands to be a constitutionally valid option. So, mitigating factors are not to be forcefully deduced as such from the case but have to be justly weighed against the aggravating facts at hand.

From Bachan Singh back in 1980 to the case of Manoj vs. State in 2022 the parameters, guidelines, classifications were brought in place, asserted and then re-asserted. The death penalty passed the scrutiny of constitutional validity years before and still stands validly in provisions and as a legitimate punishment in India. The flaw seeped in the application of the guidelines and reasoning the subjectivity involved. Bachan Singh vs. State mentioned that only rarest of rare cases called for death penalty but lacked any specific definition or explanation as to what it could be and hence left it to the vast- unguided subjectivity of individual mind to decide . Bachan Singh lacked setting criteria for the death penalty and doesn't clearly lay the proportionality between aggravating and mitigating factors.

Another aspect followed by the subjectivity is that no specific legislative guideline exists as to when life can be taken away and the looming arbitrariness as a compulsive flaw or at least potential for it, brings it into the conflict with Article 14 of the constitution. Moreover, as per the statistics there are common biases in criminal investigations against marginalised groups, owing to lack of resources and floating prejudices against them. Various countries, including Papua New Guinea recently in 2022 have abolished death penalty from their criminal system of justice on humanitarian grounds and the punishment being extreme and barbaric and solving no purpose in effect.⁹ Malaysia has also recently proposed to abolish the provision of mandatory death penalty in its laws and would replace such provisions with the provisions of alternate punishments.¹¹ FOUR different methods of execution were used in 2021. The most common methods were hanging and shooting, which were used in 15 different countries. Lethal injection is the most widely used method of execution in the United States, but some states authorise other methods, including electrocution, gas chamber, hanging and firing squad. Beheading with a sword is the predominant form of execution in Saudi Arabia.

Moreover, India has acceded to International Covenant on Civil and Political Rights¹⁰ by General Assembly of UN and hence India is committed to policy for abolition of death penalty. Sociologists and legislators critique against it and statistics and analysis fail to prove, if the death of the convict actually serves penological purpose or in effect acts as a deterrent. Contrary to it there are fair doubts that it rather scrapes out any scope of re-formation or humanity and fuels cruelty, death being the ultimatum. However, beyond all these aspects and calculations- there are rarest of rare- brutal crimes that assert the non-existence of any streak of humanity in the convict and in fact or in effect rather uproots the life of the victim or survivor, say in case of murder or rape and hence it only calls for retribution and no effective arguments claiming humanity for an inhumane being can be so placed to permit such a person to survive in a humane society under the veil of claiming human rights or right to life or a non-existent scope of reformation. The idea behind the entire exercise of Supreme Court in recent case is not to question the validity of the death sentence or to do away with it however, the real question and concern has been towards manner and procedure undertaken by courts while sentencing the convict to death penalty. There is lack of collection of information by courts while dealing with question of death sentence in particular set of circumstances and the information has to be specifically collected, inferred and considered being individualistic in nature and pre-requisite for choosing between death sentence and Life Imprisonment by judicial application of mind. Even after the latest judgment re-asserting the parameters, in practical application this entire activity would even involve the defence lawyer's role in collecting such information and duly bringing it to court's notice. Every element of the machinery of the justice delivery system has to understand and weigh the nuances involved to decide the question sentence and pay their respective hands in practical application of the guidelines- in the ground reality by bringing in and scrutinising relevant material on record, before the court. Imposing of death sentence i.e. taking away of life (i.e. a Fundamental Right under Article 21) by operation of law has to necessarily flow from law and 'due process of law' and hence the process and adjudication needs crucial and judicially scrutinized fairness.

The procedure has been laid again on paper and much to claim has been re-asserted in black and white, the real challenge again would be functioning of procedural integrity and requisites in trial and high courts. So it is the implementation that still stands by the question and might even need laying off of some norms and mandates to reduce unprincipled subjectivity and to drive virtuous implementation.

The author is an Advocate & views are personal.

References-

1. https://www.livelaw.in/top-stories/death-penalty-trial-court-must-elicit-information-from-state-accused-on-mitigating-circumstances-supreme-court-issues-guidelines-199748
2. https://indiankanoon.org/doc/1837051/
3. https://indiankanoon.org/doc/307021/
4. https://www.juscorpus.com/doctrine-of-rarest-of-rare-cases-is-it-truly-rare/
5. https://indiankanoon.org/doc/590378/
6. https://indiankanoon.org/doc/1266667/
7. https://indiankanoon.org/doc/667073/
8. https://www.livelaw.in/news-updates/mp-high-court-commutes-death-sentence-rehabilitation-murder-rape-convict-201743
9. https://www.amnesty.org/en/what-we-do/death-penalty/
10. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
11. https://www.livelaw.in/news-updates/malaysia-to-abolish-mandatory-death-penalty-201322
12. https://www.livelaw.in/top-stories/death-penalty-trial-court-must-elicit-information-from-state-accused-on-mitigating-circumstances-supreme-court-issues-guidelines-199748?infinitescroll=1
13. https://www.livelaw.in/top-stories/death-penalty-possibility-of-reformation-supreme-court-review-commutes-186392
14. https://www.livelaw.in/top-stories/supreme-court-death-penalty-not-redundant-manoj-pratap-singh-vs-state-of-rajasthan-2022-livelaw-sc-557-202277