Time to revisit Bachan Singh

If we have to go by what the constitution makers considered about the capital punishment, it is easy to find out that they were aware that our Penal Code prescribed it and yet they did not want to interfere with it.  The Indian Penal Code which was in force in many states at the time when the Constitution was made contained more than one offence punishable with death penalty.  In fact, some articles were formulated by the Constitution makers by reference to the death penalty. e.g. The President of India and the Governors were conferred with the power of granting ameliorative reliefs to persons convicted of any offence punishable with death penalty (Article 72 (i)).  A right of appeal was provided from the verdict of a High Court to Supreme Court in any case where capital punishment was imposed on an accused in reversal of acquittal order (Article 134). 

But we shall not overlook the reality that the constitution makers could not be expected to go into the various aspects of each punishment provided in the penal statutes which were then in force.  When they shaped Article 13 of the Constitution it declared that any law in force at the time when Constitution came into effect which was violative of any of the fundamental rights enshrined in the Constitution is void. This is enough to show that the makers left it to the judicial functionaries in future to consider how far the then existing laws would be within the vires of the Constitutional provisions.

But the post constitution period has been agogue with judicial and legislative endeavor dealing with the feasibility, viability,   advisability and also the validity of capital punishment.  During the first five years after the Constitution was made, death penalty remained as the normal punishment for murder. If a session’s judge was to depart from it, he was bound to set out reasons for not awarding it to a   convict for murder.  But that position was changed in 1955 when a discretion was conferred on sessions judges to award either of the two sentences prescribed for murder, capital punishment or life imprisonment (for short “life”) The next phase of legislative exercise regarding capital punishment was made on the strength of the recommendation of the Law Commission of India, in its 35^th Report published in 1967.  Cr. P.C. was amended in 1973 by which Parliament directed that special reasons shall be shown if the Sessions Judge imposed death penalty on the convicted person.  This change was made evidently to give the message that the normal punishment for murder was life and death penalty was only an exception. 

I recall how I could see these changes during my legal practice which started in 1960.  Many sessions judges were lavishly awarding death penalty on persons convicted for murder during those times.  That situation continued upto 1965.  The central prisons in Kerala contained solitary confinement cells for internment of those persons waiting for execution of capital punishment.  After the new change was made by the legislature in 1973 those cells were by and large empty.  Nevertheless, there were a few persons awaiting the execution of death sentence, because such sentences, though got reduced in number were still passed by sessions judges sporadically.

The situation was again changed subsequently.  This time it was not because of any legislative exercise, but by the pronouncement of the majority judgment by the Supreme Court of India in what is known as Bachan Singh case. There a majority of judges declared that death penalty could be imposed only in “rarest of rare cases in which the alternative sentence of life is unquestionably foreclosed”.  Thereafter, that became the law as binding on all courts in India because of Article 141.  However, this drastic curtailment of power to impose capital punishment remained only in paper.  The Supreme Court itself began to dilute the rigor of the condition imposed in Bachan Singh case.  What is meant by the words “rarest of rare etc. etc.”   The judges of High Courts and the Supreme Court used to employ semantics whenever and wherever they wanted to impose death penalty.  All that they required to do was to use some superlative degree words such as “brutal, atrocious, etc.” and then say that “I / we hold that this is one of the rarest of rare cases”.  It became a matter of luck of an accused, depending vastly on the mind set or philosophy entertained by the individual judges.  Soon after the majority judgment in Bachan Singh case was published,  a smaller bench of two  judges held in Machhi Singh Vs. State of Punjab watered down  the rigor of the rule of “rarest of rare cases” by enumerating some illustrative cases in which capital punishment would be justified. That bench said that all such illustrative cases would fall within the ambit of “rarest of rare cases”.  How with semantic exercise the smaller bench made it possible can be demonstrated by showing one or two such illustrations.

i) When the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. 

ii) Yet another is, when the murder is committed by a motive which evinces total depravity and meanness.

iii) Another is when the crime is enormous in proportion.

I must candidly admit that hardly a murder case would escape from at least one of the illustrative instances enumerated by the smaller bench of the Supreme Court in Machhi singh case.  In other words, by a judicial fiat a smaller bench upset the cautiously framed and skillfully drafted ratio in Bachan singh case.

Now, considering the constitutionality of capital punishment I may refer to a decision rendered by the Supreme Court of United States of America in Ferman Vs. State of Georgia.  A majority in a nine judge bench declared (on 29.6.1972) that capital sentence was unconstitutional as it offended the 8^th Amendment of US Constitution (by it any punishment which is cruel and unusual was prohibited) That decision was made by five Judges as against four who dissented.  Two Judges out of five (Justice Brennan and Justice Marshall) found that capital punishment was anachronism, degrading to human dignity and unnecessary.  Three others who supported them did not say so in many words, yet, the majority declared that it was unconstitutional.  But this judgment remained in force nearly for 4 years.  In 1976 a larger bench of the Supreme Court of USA overruled that decision in Gregg vs. State of Georgia.

It is interesting to point out that the constitutional validity of the capital sentence in the Indian Penal Code was challenged before the Supreme Court of India at a time when the judgment of USA Supreme Court in Ferman case was in force.  A five judge bench of the Supreme Court of India heard that case. They held that capital punishment was not in violation of the Constitution of India.  Normally the said decision should continue as the law even now.  After emergency was lifted around 1977, a seven Judge bench, in what is called Maneka Gandhi case gave a tremendous expansion to Article 21 of the Constitution. That decision became a land mark.  It is described by jurists as one which marked a water shed in the history of Constitutional law in the country.  Supreme Court for the first time said in that case that Article 21 affords protection not only against executive actions but also against legislations.  It declared that any law which deprives a person of his life or personal liberty would be invalid unless it prescribed a procedure which is reasonable, fair and just.  This is the historic departure from the till then existed view of Article 21.  It emphasises that any facet of law which deprives a person of his life or personal liberty will have to stand the test of reasonableness, fairness and justness in order to get out of the inhibitions in Article 21.

In the light of this decision divergent views were expressed by Supreme Court judges and also by High Court Judges in different cases regarding capital punishment. In order to have a quietus of the divergence some cases were referred to a new constitution bench. That is how the Bachan Singh Case came to be decided by a new constitution bench. It was heard by Chandrachud CJI, P.N. Bhagavati J (who became CJI later), Sarkaria, A.C. Gupta and Untwalia JJ. The bench gave a split verdict. The majority spoke through the famous judgment authored by Sarkaria J.  It was this bench which laid down the rarest of rare cases rule.  But P,N, Bhagavati J  differed.  The difficulty of that dissenting judgment is that it was pronounced only two years after the majority judgment was pronounced. 

After reading Article 21, may I put it in the converse position?  “A person may be deprived of his life in accordance with the procedure established by law”.  In the light of the accepted philosophy  underlining Article 21 the converse position can be paraphrased like this:-  “A person can be deprived of his life if there is a law which is just, fair and reasonable”.

Sarkaria J.  speaking for the majority, said that the founding fathers of the Constitution recognised the right of the state  to deprive  a person of his life in accordance with fair, just and reasonable procedure established by a valid law.  In other words, the law allowing a person to be hanged by neck till he is dead must be just, fair and reasonable. 

For this purpose, you must know first what is the reason for imposing death penalty.  Right from the beginning of codification of the law of punishment,   Criminologists advanced mainly three objectives for punishment, retribution, reformation and deterrence.

The theory of reformation is based on the obligation of  the society to reform a convicted person.  In Bachan Singh case both the majority judgment as well as the minority judgment agreed that by capital punishment the object of reformation will be totally defeated, as the offender does not continue to live.  Hence there is no scope to improve the offender at all.

While dealing with the question whether capital punishment can be justified on account of its deterrent effect Sarkaria J, speaking for the majority of judges, referred to many authorities and jurists.  They concluded that death penalty serves as a very good deterrent on possible offenders.

Holding that the two main objectives for imposing death penalty cannot be regarded as unfair, unjust or unreasonable, the court declared that the capital punishment is constitutionally valid.

Now the law regarding capital punishment remains what the majority in Bachan Singh case declared it on 9.5.1980 by upholding its constitutional validity with the rider that it should be restricted to the rarest of rare cases in which the alternative sentence of life imprisonment is unquestionably foreclosed.  Three decades have passed since the pronouncement of the majority judgment in Bachan Singh case.  During this 30 years Parliament did not do anything regarding capital punishment.  It is unlikely that the Parliament may do it in the foreseeable future.  But the judiciary can now decide whether a new look is necessary on the constitutionality of capital punishment.

Bhagavathi J, did not pronounce his judgment after summer vacation of 1980, nor after the summer vacation of 1981, nor even after the summer vacation of 1982.  But his dissenting judgment was pronounced only on 16.8.1982 i.e., two years and three months after the main judgment was pronounced. Evidently the majority judges in Bachan Singh case did not get an opportunity to go through the dissenting judgment before pronouncing the main judgment.  For this long and unusual delay for pronouncing this dissenting judgment Bhagavathi J made an apologetic  explanatory note at the fag end of his separate judgment like this:-

“I must express my profound regret at the long delay in delivering this judgment, but the reason is, there was a considerable mass of materials which had to be collected from various sources and then examined and analysed which took a large amount of time”.

As I had the advantage of reading both the majority judgment and the minority judgment in Bachan Singh case, I am forced to make a plea that in the light of very sound reasoning and quite formidable grounds advanced by Bhagavati J, which the majority judges in Bachan Singh case did not have with them when they finally delivered their judgment, the Supreme Court may now constitute a larger bench of minimum seven judges to reconsider the constitutional validity of capital punishment afresh.

According to me, the first and the foremost reason is, capital punishment is an abhorrence to the key stone to the Constitution, namely, the resolve to secure to all its citizens the dignity of the individual. (These words are well embedded in the preamble to the Constitution)  By killing the offender through the capital punishment, the dignity of his individuality is extinguished once and for all.

When I deal with the capital punishment, I must admit that philosophically every punishment is a crime.  Putting a person to imprisonment would have been a crime as defined in Sec. 340 of the Indian Penal Code, even imposing a fine on the convict would have been a crime of extortion defined in Sec. 383 IPC. Why they are not crimes ?  Because they are exempted under Sec.  77 and 78 of the Penal Code (any Act in exercise of judicial function is exempted)   Death penalty, in reality, is a murder, if there was no such exemption.  Everybody involved in that murder including the Judge who pronounces it with a direction that the convicted person shall be hanged till he is dead, the Jail officials who help in carrying out that direction, the magistrate who finally executes the warrant and even the doctor who is supposed to declare that he is dead, of course the executioner also would have been guilty of murder, if Sec. 77 and 78 were not incorporated in the IPC.

All other punishments other than capital punishment can serve the three main objectives of punishment namely, deterrence, reformation and retribution. In the lengthy judgment Bhagavati J focused on the point that in capital punishment alone reformative object is totally extinguished as the life of the offender is extinguished once and for all. What remains to be achieved are only retribution and deterrence. Retribution is nothing but an act of vengeance.  No modern Criminologists would approve retribution as a mark of civilization.  Vengeance is a primitive instinct of the human mind.  If you want to be regarded as a civilized person you must succeed in getting over this primitive instinct.

Every punishment must have the prime object of reforming the wrong doer.  It should be done with the same object with which a parent punishes his child.  Society must have a parental attitude to its criminals also.

At any rate, retribution is found an outmoded object for punishment, incompatible with the modern thinking on human rights. Hence it is anti-thesis to civilised approach. What remains as justification for capital punishment is only deterrence.  If deterrence is also not a relevant aspect to be achieved then capital punishment is not a law which is just, fair and reasonable, according to Bhagavati J. His entire endeavour thereafter was to drive the point home that the old notion that death penalty has a great sociological role as a deterrent, is not at all correct.  He describes this notion as an unrealistic fiction.  He analysed many research work and referred to many data and quoted many dissertations in order to demonstrate that this notion that capital punishment achieves deterrence is an unchartered myth.   According to him, most of those who propounded the theory that death penalty serves a great degree of deterrence are treading on the erroneous assumption without comparing how far death penalty serves a greater degree of deterrence than life imprisonment.  In other words, the question is not whether death penalty operates as a deterrent because, there is no doubt that there is an element of deterrence in that punishment.  But the real question is how far it operates as a greater deterrent than life imprisonment.  He showed that it is only a mistaken pre-supposition without making any scientific study.   On the other hand, he succeeded in establishing that it does not have even one degree more deterrence than life sentence.

An illustration, though funny, is extracted from a book authored by Arthur Koestler (very renowned thinker and philosopher in the late 19^th century).  When capital punishment was the normal punishment for even pickpocketing in England the convicted pickpocketers were publicly hanged to instill greater deterrence in the would-be-offenders.  Big crowd used to assemble to see this cruel demonstration.  In one of the hanging gala, half a dozen pickpocketing in the crowd were reported to the police. Another data provided by Bhagavathi J became very impressive. In the princely state of Travancore, death penalty was abolished by the Maharaja in 1940.  A similar decree was proclaimed in the same year by Maharaja of Cochin (another princely state).  When the constitution came into force in 1950 the Indian Penal Code became the penal law in both the states.  Bhagavati J extracted official data regarding the number of murders perpetrated between the two decades (1940-50 when there was no capital punishment) and (1950-60 when there was capital punishment)  it was a great revelation to him because in fact, murders increased during the decades when death penalty was restored.  I must frankly confess that it was a revelation to me also in spite of being a subject of Travancore state.  In fact, one of the questions, we as students of the fourth standard, was required to answer in our examination in 1945 is “who stopped death penalty in Travancore state”.  We answered with pride that it was our Maharaja Sree Chitra Thirunal”.

Bhagavati J then dealt with many other research results to establish that the antediluvian notion that death penalty will lessen murders is a myth.  I may point out that in Saudi Arabia the mode of execution of death penalty is beheading.  This is even now carried out after juma worship as the worshippers are also permitted to see it.  This public beheading remained in vogue for the last 1200 years.  I am told that the total population of Saudi Arabia is less than the population of Cochin Corporation.  But you must know that capital punishment by beheading took place even in the last month in Saudi Arabia.  What does it mean?  Even 1200 years of public exhibition of beheading offenders could not stop the commission of capital offences in that small nation.

What is the result, if there is no greater deterrence for capital punishment vis-à-vis the life imprisonment.  The only defence in favour of the death penalty, i.e. deterrence falls to the ground.  The law which deprives of a human being of his right to live then cannot escape from being termed as unjust, unreasonable and unfair.  Barring death penalty in all other punishments the right to live is ensured in spite of restricting the mobility of the convicted person.

A strong argument against death penalty is that it is the only punishment which is unrectifiable if on a subsequent occasion it is discovered that the judgment passed on him was by a mistaken conclusion.  I do not want to enumerate instances where wrong judgments were later discovered to be wrong and death penalty in the meanwhile was executed.  The man whose life is extinguished through a judgment delivered by a wrong decision loses a very valuable right to life.  This one reason alone is sufficient, according to me, to declare that this law is unjust, unreasonable and unfair.

I therefore strongly suggest that the majority judgment in Bachan Singh case should be reconsidered.

Justice K T Thomas is a retired judge of the Supreme Court of India.