The unending uncertainty in the Death sentencing Policy of Indian Courts

A recent judgment of a CJI-led 3 Judges’ Bench decision in Purushottam Dashrath Borate & Anr v. State of Maharashtra has reopened the long-standing controversy on the capricious, uncertain, confused and arbitrary nature of death sentencing policy of Indian courts.

Death or life imprisonment was the question that once again vexed the Court in Purushottam Dashrath Borate & Anr v. State of Maharashtra (supra).

In a verdict rendered last Friday, the Supreme Court, applying the test of “balance sheet of aggravating and mitigating circumstances” sentenced to death two accused- a cab driver and his accomplice- for “brutally” raping and murdering an “innocent and helpless” BPO employee in Pune in 2007. The 22-year-old woman was traveling in her company’s pick-up cab on November 1, 2007, when the driver Purushottam Borate and his friend Pradeep Kokate raped and killed her in a gruesome manner.

Confirming the sentence awarded to the duo by the sentencing court and the Bombay High Court, the Bench said that the offence was so meticulously and carefully planned and was executed with sheer brutality and apathy for humanity that in every probability they have the potency to commit similar offence in future.

“It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. The act shocks and repulses the collective conscience of the community and the court,” said the bench led by Chief Justice of India H L Dattu, while rejecting the defence counsel’s plea to commute the death penalty to life term. The convicts were heard by the top court only on the point of sentence since notice in the appeal was issued only on that ground.

The Bench also stated that punishments must act as a deterrent in view of the rise in violent crimes against women.

“There are a shockingly large number of cases where the sentence of punishment awarded to the accused is not in proportion to the gravity and magnitude of the offence thereby encouraging the criminal and in the ultimate making justice suffers, by weakening the system’s credibility. The object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it,” said the Bench.

Evidently, the Bench had taken into account societal perception and public opinion as well apart from the brutality of the crime itself in upholding the death sentence awarded to the appellants by the sentencing court and confirmed in appeal by the High Court.  But how correct a yardstick is something as indefinite as societal perception or public opinion in mattes of death sentencing? Can courts be swayed by public opinion? Is brutality of the crime by itself sufficient to attract death in case of capital offences?

This judgment certainly raises some troubling questions. In relying entirely on the ‘deterrence and retribution’ theory and misapplying the test of balance sheet of aggravating and mitigating circumstances which has been doubted in several Supreme Court judgments as we shall presently see, the CJI Dattu-led 3 judges Bench seems to have given the go-by to Bachan Singh, and brought into focus yet again, the utter confusion and uncertainty surrounding the sentencing policy of the Courts in India.

But first, it is necessary to understand the broad legal position vis-à-vis death sentence in India leading up to the present judgment before proceeding further.  Any discussion on the subject of death sentencing policy should without doubt commence with the Constitution Bench decision in Bachan Singh, and an understanding of the pre-Bachan Singh and post-Bachan Singh period.

Bachan Singh was heard and decided when the Code of Criminal Procedure, 1973 (for short the Cr.P.C) had come into force with effect from 1st April, 1974.

Prior to then, Section 367(5) of the old Code dealt with the sentence to be awarded in case of conviction for an offence punishable with death, which read as follows:-

“If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.”

In the new Code enacted in 1973, Section 354(3) of the Code of Criminal Procedure, 1973 provides for the sentence to be awarded in case of conviction for an offence punishable with death. The said provision requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof.

The Cr.P.C., 1973 thus effectively reversed the position as it existed under the old Code and also placed a requirement that if a sentence of death is awarded, the Court should record special reasons for awarding that sentence.

The impact of the new legislative policy (as embodied in the form of section 354(3) of the Code of Criminal Procedure, 1973) was variously interpreted by the Apex Court, and this disparity in interpretation triggered Bachan Singh (supra).

In Bachan Singh (supra), which serves as a watershed moment in the history of death penalty jurisprudence in India, essentially two issues came up for consideration before the Constitution Bench. The first issue related to the constitutional validity of the death penalty for murder as provided in Section 302 of the IPC and the second related to “the sentencing procedure embodied in sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973”. The Court by a majority upheld the constitutionality of both the provisions.

For the purposes of the present discussion though, the findings of the Apex Court on the second issue alone are relevant. The Apex Court in Bachan Singh went on to forge and entrench an unprecedented jurisprudence on the sentencing front. This jurisprudence today forms the bed rock of death penalty jurisprudence in our country.

 In Bachan Singh (supra), the court held that 354(3) of the Code of Criminal Procedure, 1973 is constitutional but only after enunciating "broad guidelines and principles" which today govern the practice on capital sentence in all courts, be it the sentencing courts or the appellate courts.

From Bachan Singh (supra), 5 broad principles or propositions laid down by the Constitution Bench can safely and surely be culled out:

(i) Individualized sentencing- "standardisation" of the sentencing process “which leaves little room for judicial discretion to take account of variations in culpability within single-offence category” is well-nigh impossible. standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that encompassed by the broad contours delineated in Section 354(3), the Court would not by over-leaping its bounds rush to do what Parliament, in its wisdom, varily did not do.

(ii) Rarest of the Rare cases- the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. Life imprisonment is the rule and death sentence is an exception.

(iii) Crime and Criminal both to be given due consideration - The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.

(iv) Principled sentencing- The exercise of this sentencing discretion [Section 354(3)] cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well recognised principles crystallised by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3).

(v) Aggravating and mitigating factors must be given great weight in the determination of sentence. The scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3).

Though it upheld the constitutionality of Section 354 (3) of the Code, the Apex Court in Bachan Singh hoped that the courts, aided by the broad illustrative guidelines indicated by it, would discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

Therefore, the overall legislative scheme on death penalty encapsulated in Section 354(3) Cr.P.C. was cleared of constitutional challenge only after it was conjoined with the ‘Rarest of rare’ dictum.

The next major landmark judgment in the arena of death sentencing policy to follow Bachan Singh was the Apex Court decision in Machhi Singh v. State of Punjab in 1983.

In Machhi Singh a 3-Judges Bench of the Apex Court while purporting to follow the ratio in Bachan Singh sought to lay down certain guidelines which would render a sentence of imprisonment for life inadequate and call for death sentence. In Machhi Singh the Court put itself in the position of the `Community' and observed that though the `Community' revered and protected life because `the very humanistic edifice is constructed on the foundation of reverence for life principle' it may yet withdraw the protection and demand death penalty, "It may do so `in rarest of rare cases' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The Court formulated five categories of crime (manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder) which would necessitate the award of capital punishment. While Bachan Singh advocated that the criminal receive as much as consideration as the crime in deciding the sentence,  the Court in Machhi Singh, purporting to elaborate the ‘rarest of rare doctrine’ in Bachan Singh,  ironically focused entirely on the crime to the exclusion of the criminal- a clear departure from precedent.

The Court in Machhi Singh overlooked the fact that the Constitution Bench in Bachan Singh had “resolutely refrained” from standardization or categorization of cases. As noted in Swamy Shraddhanandha case the Constitution Bench in Jagmohan Singh and Bachan Singh “had firmly declined to be drawn into making any standardization or categorization of cases for awarding death penalty”.  In Bachan Singh the Constitution Bench had specifically stated reasons against the argument for standardization or categorization of cases. This was violated blatantly in Machhi Singh.

Indeed, in Swamy Shraddananda the Apex Court went so far as saying that in attempting to standardize and categorize crimes, Machhi Singh “considerably enlarged the scope for imposing death penalty” that was greatly restricted by Bachan Singh.  The Court in Swamy Shraddananda thus exposed the inconsistency between the dictums in Bachan Singh and Machhi Singh.

Regrettably, and as admitted by the Apex court itself in Santosh Kumar Satishbhushan Bariyar, and thereafter in Sangeet there has been a marked inconsistency in how Bachan Singh (supra) has been interpreted and implemented by the Apex Court in several of the decisions that followed Bachan Singh, including the decision rendered by the CJI-led 3 judges Bench as we shall presently see.

As can be seen from Bachan Singh, a conclusion as to the rarest of rare aspect of a capital offence entails identification of the aggravating and mitigating circumstances relating both to the crime and the criminal. But as observed in Santosh Kumar Bariyar, “Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.”

In Ravji alias Ram Chandra v. State of Rajasthan, [(1996) 2 SCC 175] the Apex Court in a blatant reversal of Bachan Singh held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial. This decision was declared per incuriam in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, but not before seven convicts were sentenced to death in 6 other cases following Ravji : Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, [AIR2009SC56], Mohan Anna Chavan v. State of Maharashtra [(2008)11SCC113], Bantu v. The State of U.P., [(2008)11SCC113], Surja Ram v. State of Rajasthan, [(1996)6SCC271], Dayanidhi Bisoi v. State of Orissa, [(2003)9SCC310], and State of U.P. v. Sattan @ Satyendra and Ors., [2009(3)SCALE394]

The Court admitting the error committed in these cases, said, “It does not appear that this court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji Rao (supra) has not only been considered but also relied upon as authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.” 

In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, the Court noticing the  uneven application of the ratio in Bachan Singh admitted that the balance-sheet of aggravating and mitigating circumstances has not worked well to remove the vice of arbitrariness from our capital sentencing system. The Court said : “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…we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty - the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in
capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.”

The Court also said, referring to the decision reported In Dhananjoy Chatterjee v. State of W.B. [(1994) 4 SCC 220], that though the Court has taken notice of the fact that shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility,  the increasing number of cases which affect the society may hold some value for the sentencing court, but it cannot give a complete go-by to the legal principle laid down by this court in Bachan Singh (supra) that each case has to be considered on its own facts.

Another case, Ankush Maruti Shinde and Ors vs State of Maharashtra (2009) (6 SCC 667), which explicitly followed Ravji’s reasoning, was decided just a few days before Bariyar and was, therefore, not noticed in that decision.

Another six cases that the Supreme Court considered had been rendered per incuriam were listed by the Apex Court in Sangeet judgment.  In Sangeet case, the 2 judges Bench of Justices Madan B Lokur and K.S Radhakrishnan, by giving examples of several cases, noted that despite Bachan Singh, the “particular crime” continues to play a more important role than the “crime and criminal”.

The Court in Sangeet, which was a 2-judges’ Bench decision, went on to observe that there has been no uniformity in application of the ‘aggravating and mitigating circumstances’ in Bachan Singh. It also held that a balance sheet of aggravating circumstances relate to the crime and mitigating circumstances relate to the criminal and therefore a balance sheet of the two cannot be drawn up. The Bench observed that the balance-sheet theory warrants a review.

The Apex Court in Sangeet reiterated that in the sentencing process both the crime and the criminal are equally important, and lamented that sentencing process, in capital offences, ‘has become judge-centric sentencing rather than principled sentencing.’

Sangeet thus squarely holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case satisifies the ‘Bachan Singh Test’  (rarest of rare category) . It also endorses the proposition that by standardising and categorising crimes, Machhi Singh considerably enlarged the scope for imposing the death penalty, that was greatly restricted by Bachan Singh .

The Supreme Court again relied on the flawed Machhi Singh judgment for its reasoning, and used the balance sheet theory, which was discredited in Sangeet , to sentence Ajmal Kasab to death.

In a 2013 decision - Mohinder Singh v.State of Punjab(2013) 3 SCC 294; another bench of the Supreme Court once again reiterated that a conclusion as to the  ‘rarest of rare’ aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It also said that the expression ‘special reasons’ “obviously means (‘exceptional reasons’) founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.”

In Mohinder Singh, the Apex Court specifically said, “Public opinion is difficult to fit in the ‘rarest of rare’ matrix. People’s perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh (supra)”.

The Bench in Mohinder Singh also said, “The ‘rarest of rare’ case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society.”

In Gurvail Singh @ Gala And Anr vs State Of Punjab, a decision which was rendered after Mohinder Singh, the Apex Court, after making clear the purport and application of Bachan Singh dictum, however strangely seemed to commit the same mistake of misunderstanding the Bachan Singh decision that it had faulted other Benches for in Bariyar and Sangeet among other cases, when it said :

“To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test), which depends on the perception of the society and not “judge-centric”, that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. examples are only illustrative and not exhaustive. Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric.”

By seemingly delinking the aggravating and mitigating circumstances from determination of ‘rarest of rare cases’ and by defining ‘rarest of rare’ cases to be based on the ‘perception of society’, the 2 judges Bench of Justices K.S. Radhakrishnan and Dipak Misra have misunderstood, misinterpreted and misapplied the Bachan Singh ratio. Interestingly, Justice K.S. Radhakrishnan was part of the Bench which delivered the Sangeet judgment. The Constitution Bench in Bachan Singh had “firmly declined to be drawn into making any standardization or categorization of cases for awarding death penalty”, and specifically stated reasons against the argument for standardization or categorization of case, but the said dictum has been flouted in Gurvail Singh as the Bench went on to specifically state certain categories of cases which it said should weigh with the Court.

Adding to the long list of cases that have misinterpreted and misunderstood the Bachan Singh ratio is now, this recent decision rendered by a 3-judges Bench headed by CJI H L Dattu. Now that we have surveyed, albeit in brief, the legal position vis-à-vis death sentencing, which is marked by naked violations of the dictum in Bachan Singh and the remarkable candour with which the Apex court had admitted the uneven application of the Bachan Singh dictum, we can return to the judgment which is the subject matter of our discussion.

To start off with, the Court’s understanding of the “rarest of  the  rare” case  is itself problematic.  According to the CJI Dattu-led Bench “rarest  of  the  rare”  case  exists  when  an accused would be a menace or, threat to and  incompatible  with  harmony  in the society. While that may be one of the many factors which elevates a case to the category of “rarest of rare”, the 3-judges Bench has proceeded purely on that basis focusing excessively and extensively on the brutality of the crime with little regard for other mitigating factors other than a perfunctory consideration and rejection of the same.

As said above, the brutality of the murder and its heinous nature have weighed with the 3-judges Bench of the Supreme Court in deciding to uphold the award of death sentences concurrently by the sentencing court and the High Court. However, in Panchhi case, the Apex Court downplayed the heinous nature of crime and relied on mitigating circumstances in the final opinion. The court held:

"We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder."

One of the principles that can be culled out from Bachan Singh is that a conclusion as to the ‘rarest of rare’ aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. In Purushottam Dashrath Borate & Anr v. State of Maharashtra(supra) the 3-judges Bench instead of identifying aggravating circumstances related to both the crime and the criminal and mitigating circumstances, again in relation to both the crime and criminal, has considered the  balance  sheet  of aggravating and mitigating circumstances – aggravating circumstances related to the crime and mitigating circumstances with respect to the criminal, a test which has been specifically discredited in the Sangeet case. In Sangeet case, the Supreme Court specifically held : “Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review”

When the Court in Sangeet has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh, how and why the 3-judges Bench could undertake the same discredited exercise in upholding the death sentence is mystifying and incomprehensible.

Even going by the kind of balance sheet theory applied in Purushottam Dashrath Borate & Anr v. State of Maharashtra(supra), the focus seems to be entirely on the crime and its heinous nature, and very little on the criminal, apart from the clichéd statements regarding how the convicts are a menace to  society  which  strongly negates the probability that they can be reformed or rehabilitated etc. This goes directly against the dictum laid down in Sangeet, which reminds the courts about the need to back such observations with some material :

“It is not obvious how deterrence relates to severity and certainty. Furthermore criminal policy must be evidence-led rather than based on intuitions, which research around the world has shown too often to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, we cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of the death penalty. The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than by the imposition of the death penalty.”

The Court’s fervent upholding of the ‘deterrence and retribution’ theory in the progressive times that we live in, when the reformative face of sentencing is gaining credence and credibility, is certainly troubling. In many ways, this is a regressive decision. The Court seems to hope that by awarding the death sentence in cases like these, it can deter criminals and prevent recurrence of such crimes in the future. Evidence however is to the contrary. Though we lack precise data, any observer of our society can see that retention, and application of, death penalty, has done little in deterring criminals or preventing recurrence of crimes like murder or rapes.

In relying inter alia on the decision in Dhanjoy Chatterjee which essentially is based on the principles of deterrence and retribution, the 3-judges Bench has relied on a questionable decision. As said by the Apex Court in Santosh Bariyar, In Dhananjoy Chatterjee v. State of W.B. [(1994) 4 SCC 220], though the Court has taken notice of the fact that shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility,  the increasing number of cases which affect the society may hold some value for the sentencing court, but it cannot give a complete go-by to the legal principle laid down by this court in Bachan Singh (supra) that each case has to be considered on its own facts.

Further, the 3-judges Bench led by CJI Dattu inter alia, relies on a decision reported in B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 to substantiate its reasoning. However as pointed out by the Apex Court in Sangeet, this was a case where the convict was found guilty of rape, murder and robbery. The crime was carried out in a depraved and merciless manner. Two days after the incident, the local public caught him while he was attempting to escape from a house where he made a similar attempt to rob and assault a lady. There was nothing in law to show that the convict was guilty of the second offence in as much as no trial was held. There were some recoveries from his house, which indicated that the convict had committed crimes in other premises also. Again, there was nothing in law to show that he was found guilty of those crimes. On these facts, despite the guilt of the criminal not having been established in any other case, the convict was found incapable of rehabilitation and the death sentence awarded to him was confirmed. The Bench’s reliance on B.A. Umesh (supra) is thus suspect and not free from doubt altogether.

The CJI-led Bench justifies its decision to confirm the award of death sentence by referring to the decision in Machhi Singh wherein it was observed that the extreme punishment of death would be  justified  and necessary in cases where the collective conscience of society is so  shocked that it will expect the holders of judicial power to inflict  death  penalty irrespective of their personal opinion.

But as we have seen, Macchi Singh- the legality of which has been questioned in subsequent Supreme Court decisions, may not be considered to be good law inasmuch as it specifically went against the caution administered in Bachan Singh against standardization or categorisation of crimes.

In Purushottam Dashrath Borate & Anr v. State of Maharashtra(supra) justifying its decision to confirm the award of death sentence, the Bench says :

“it would be necessary for  this  Court  to  notice the impact of the crime on the community and particularly women  working  in the night shifts at Pune, which  is  considered  as  a  hub  of  Information Technology Centre. In recent years,  the  rising  crime  rate,  particularly violent crimes against women has made the criminal sentencing by the  Courts a subject of concern. The sentencing policy adopted by the Courts,  in  such cases, ought to have a stricter yardstick so  as  to  act  as  a  deterrent. There are  a  shockingly  large  number  of  cases  where  the  sentence  of punishment awarded to the accused is not in proportion to  the  gravity  and magnitude of the  offence  thereby  encouraging  the  criminal  and  in  the ultimate making justice suffer by weakening the  system’s  credibility.  The object of sentencing policy should be to see that  the  crime  does  not  go unpunished and the victim of crime as also the society has the  satisfaction that justice has been done to it. In the case of Machhi Singh (supra),  this Court observed that the extreme punishment of death would be  justified  andnecessary in cases where the collective conscience of society is so  shocked that it will expect the holders of judicial power to inflict  death  penalty irrespective of their personal opinion.”

“Certain offences shock the collective conscience of the court  and  community.  The heinous offence of gang-rape of an innocent  and  helpless  young  woman  by those in whom she had reposed trust, followed by a cold-blooded  murder  and calculated attempt of cover-up is one such instance of a crime which  shocks and repulses the collective conscience  of  the   community  and  the  court. Therefore, in light of the aforesaid settled principle, this  Court  has  no hesitation in holding that this case falls within the  category  of  “rarest of  rare”,  which  merits  death  penalty  and  none  else.  The  collective conscience of the community is  so  shocked  by  this  crime  that  imposing alternate sentence, i.e. a sentence of  life  imprisonment  on  the  accused persons would not meet the ends of justice. The  collective conscience of the community is  so  shocked  by  this  crime  that  imposing alternate sentence, i.e. a sentence of  life  imprisonment  on  the  accused persons would not meet the ends of justice”

An inherent problem with consideration of public opinion or societal perception is its inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to capture public opinion:

"125. Incidentally, the rejection by the people of the approach adopted by the two learned Judges in Furman, furnishes proof of the fact that judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned.”

Again, “"The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits". As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted judicial 'made-to-order' standards, howsoever painstakingly made, do not bear the peoples imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fair-play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves, the responsibility of setting down social norms of conduct. There is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of 'community' standards or ethics may vary from Judge to Judge. In this sensitive, highly controversial area of death penalty, with all its complexity, vast implications and manifold ramifications, even all the Judges sitting cloistered in this Court and acting unanimously, cannot assume the role which properly belongs to the chosen representatives of the people in Parliament, particularly when Judges have no divining rod to divine accurately the will of the people. In Furman, the Hon'ble Judges claimed to articulate the contemporary standards of morality among the American people. But speaking through public referenda, Gallup polls and the state legislatures, the American people sharply rebuffed them. We must draw a lesson from the same. Justice Powell's dissent in Furman (supra) also bears repetition in this regard:

"But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery not the core of the judicial process in constitutional  cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function."

Further, in Santosh Bariyar case, the Apex Court cautioning against the reliance on public opinion, refers to Andrew Ashworth, a leading academic in the field of sentencing, who has been at the center of sentencing reforms in U.K., educates us of the problems in factoring in public opinion in the sentencing. He (with Michael Hough), observes in an article, Sentencing and the Climate of Opinion (1996, Criminal Law Review):

"The views of sentencing held by people outside the criminal justice system-- "the general public"--will always be important even if they should not be determinative in court. Unfortunately, the concept of public opinion in relation to sentencing practices is often employed in a superficial or simplistic way. In this short article we have identified two major difficulties with the use of the concept. First, members of the public have insufficient knowledge of actual sentencing practices. Second, there is a significant but much-neglected distinction between people's sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts. When it is proclaimed that the public think the courts are too lenient, both these difficulties are usually suppressed. To construct sentencing policy on this flawed and partial notion of public opinion is irresponsible. Certainly, the argument is hard to resist that public confidence in the law must be maintained. It is also hard to resist the proposition that public confidence in sentencing is low and probably falling. However, since the causes of this lie not in sentencing practice but in misinformation and misunderstanding, and (arguably) in factors only distantly related to criminal justice, ratcheting up the sentencing tariff is hardly a rational way of regaining public confidence.”

In Bariyar case, the Apex Court had also said : “We must also point out, in this context, that there is no consensus in the court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from Bachan Singh (supra) in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigor and fairness are given primacy over sentiments and emotions.” It is an open question whether such ‘dispassionate analysis’ of the kind mandated in Bachan Singh has been done in the judgment under review.

It is strange that the 3-judges Bench has not even once referred to the decisions of the Apex Court in Santosh Bariyar or Sangeet which have clearly exposed the error-strewn interpretation and application of the Bachan Singh Test. Ironically, Justice Dattu (as he then was) was part of a 3-judges Bench which decided Santosh Kumar Singh vs State Of M.P, where reference has been specifically made to the decision in Bariyar. 

Unfortunately, it has to be said that Purushottam Dashrath Borate & Anr v. State of Maharashtra joins the list of cases that cannot be said to be good law in view of its fundamental misinterpretation and misunderstanding of the Bachan Singh ratio. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. Insofar as the sentencing discretion in Purushottam Dashrath Borate & Anr v. State of Maharashtra has not been exercised judicially in light of the precedents, it has to be said that this is clearly violative of the guarantee enshrined in Article 14 of the Constitution of India.

Purushottam Dashrath Borate & Anr v. State of Maharashtra clearly exposes the utter chaos and confusion in the interpretation and implementation of the sentencing policy of Courts under Section 354(3) Cr.P.C. in India. It has done little to dispel the criticism that the death penalty jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.

Among other things and reasons, given the arbitrariness inherent in the sentencing policy with respect of capital offences, it is hoped, would prompt our law makers into thinking seriously about abolishing death penalty from the statute.