Reflecting upon the need for the removal of judges’ subjectivity which has crept in the application of the ‘rarest of rare case’ standard in awarding sentence of death Madhumita Mitra looks at the mandate of Sangeet vs. State of Haryana

The horrific gang rape of a young girl in Delhi and her death has set off calls for punishing the perpetrators with death. The public opinion seems unanimous that the savagery of this attack and depravity of the attackers makes this crime a “rarest of rare” case that should receive the death penalty.

Regardless of public opinion and emotions, administration of justice is about applying the rule of law fairly and justly in the investigation, trial and punishment of a crime. Yet it invariably carries a “good deal of personal predilection of the judges” Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, MANU/SC/3096/2008.

As well as officers of the law involved in the process. In the case of the death penalty, idea of what constitutes justice glaringly varies from judge to judge. The arbitrariness of the sentencing that follows is a primary reason for seeking its abolition, whatever the jurisdiction in which capital punishment still exists.

The Judgment in Sangeet & Anr. v. State of Haryana, MANU/SC/0989/2012, (‘Sangeet Judgment’) delivered on 20th November 2012, is an introspective judgment in which the Supreme Court of India expressed its concern over this judge-centric approach to the death sentence in several of the apex courts recent decisions. The Court demonstrated case by case, how the death penalty jurisprudence set out in the Constitutional Bench decision in Bachan Singh v. State of Punjab MANU/SC/0111/1980 had been repeatedly ignored and the “rarest of rare” principle had not been followed uniformly or consistently.

The Sangeet judgment comes after a rare appeal to the President of India by 14 retired judges earlier in August to use his power to grant mercy under Article 72 of the Constitution and convert the capital punishment imposed on nine persons into life sentence. The judges pointed out that the Supreme Court had admitted that in three instances death sentences had been awarded per incuriam (the term refers to a judgment of a court which has been decided without reference to a statutory provision or an earlier precedent setting judgment) and contrary to the rationale of Bachan Singh.

The guiding law for awarding the death penalty can be found in Section 354(3) of the Criminal Procedure Code 1973. In Bachan Singh, the Court observed that, “the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.”

The Supreme Court acknowledged in Bachan Singh that this requirement of “special reasons” was very loose and left it open to the courts to impose the death penalty in an arbitrary and whimsical manner. But the Court refused to get drawn into marking the types of grave murders and other capital offences that would attract death penalty rather than the alternate punishment of imprisonment for life. While standardization or sentencing discretion belonged to the legislative sphere, asking the Court to state “special reasons” for awarding the death sentence was “an exercise of judicial discretion on well established principles and on the facts of each case”.

To assist courts in this “exercise of judicial discretion”, Bachan Singh laid down certain broad illustrative guidelines in the hope that courts would discharge their “onerous functions with scrupulous care and humane concern” to fulfil the intent of the legislation that “for persons convicted of murder, life imprisonment is the rule and death sentence an exception”. Such a sentence of death ought to be given only in the “rarest of rare” cases and it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.

The significant contribution of Bachan Singh was that it brought in a shift in the sentencing policy from the crime to the crime and the criminal. In doing so, it removed references to weighing the aggravating and mitigating circumstances of a crime that existed under the old Criminal Procedure Code of 1898. But the Supreme Court itself in Machhi Singh and Ors. v. State of Punjab MANU/SC/0211/1983 , revived the balancing of aggravating and mitigating circumstances through a balance sheet theory in which the aggravating circumstances pertaining to the crime was compared with the mitigating circumstances pertaining to a criminal. The Court in Sangeet observed that a balance sheet cannot be drawn up of two distinct and different constituents of an incident.

Machhi Singh also deviated from the decisions of the Constitution Bench against standardisation and classification “rarest of rare” cases by courts by enumerating five categories of murder cases. Not only did Machhi Singh considerably enlarge the scope for imposing death penalty which Bachan Singh had restricted, but unfortunately the Macchi Singh decision was considered in subsequent capital punishment decisions.

In Ravji alias Ram Chandra v. State of Rajasthan MANU/SC/0215/1996 , the Supreme Court imposed the death penalty by holding that only characteristics relating to crime to the exclusion of the ones relating to criminal, are relevant to sentencing in criminal trial:

“…The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial…”

Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra MANU/SC/0801/2009 was the first case where the Supreme Court pointed out that Ravji was rendered per incuriam as it had not followed the Bachan Singh ruling and not considered any mitigating circumstance relating to the criminal at the sentencing phase. The Court listed seven cases that had relied upon Ravji as an authority while imposing the death penalty. Another six cases that the Supreme Court considered had been rendered per incuriam were listed by the Sangeet judgment.

The Macchi Singh’s categorisation of the crime was however, accepted as the broad guidelines for imposition of the death penalty in the case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra. MANU/SC/0681/2012 Sangeet Judgment has also cleared the misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life. The appropriate Government may grant remission under Section 432 of the Criminal Procedure Code subject to procedural and checks provided in the Code.

The Supreme Court has admitted that the question of death penalty is not free from subjective elements and errors have been committed in awarding the death sentence by its own. While the Court in Sangeet did not go to the extent of declaring the death sentences awarded on the basis of Ravji as per incuriam, this judgment leaves the door open for the executive to review the cases of all death row convicts as well as those convicts whose mercy petitions are pending with the President.