In the wake of India’s voting against the UN resolution on moratorium on death penalty on November 12th, we thought of exploring this issue further in the interest of the law student community. Even the recent Supreme Court judgment in Priyadarshini Mattoo case wherein the accused was spared the noose, has yet again raised pertinent questions regarding the traditional debate of abolishing “death penalty” and what exactly are the parameters for judging a “rarest of rare” case. It is not surprising that the doyens of the legal profession have often presented conflicting opinions on this issue, the judicial Benches being no exception. As per the United Nation’s Special Rapportueur on Extrajudicial, Summary or Arbitrary executions, “while capital punishment has not yet been prohibited under international law, various United Nations human rights organs and bodies have, on several occasions, reaffirmed the growing international consensus in favour of the abolition of the death penalty.”
It is imperative for law students to develop an insight to understand the jurisprudential aspects of criminal law such as this. Whether a case falls within the ambit of “rarest of rare” cases has to be examined by keeping in mind the facts and circumstances of each case. What the court has to take note of is the aggravating as well as the mitigating circumstances and thereafter opine as to whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and therefore calls for a death sentence.
The court is also expected to consider whether the circumstances of the crime are such that there is no alternative but to impose death sentence after according maximum weightage to the mitigating circumstances which speak in favour of the offender. In the case of Machhi Singh vs. State of Punjab, the apex court had observed that, in rarest of rare cases the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may choose to entertain such a sentiment in the following ways:
Deterrence theory simply states that, the individual would be deterred from committing the crime if the consequence of committing a crime outweighs the benefit of the crime itself. This is founded in the idea that all individuals who are aware of the difference between what is right and wrong and the consequences associated with criminal behaviour. When they act in a criminal manner, they do so out of free will and weigh the consequences of their actions.
Though the theory of deterrence was very much acceptable once upon a time, after the US Supreme Court’s judgment in the matter of Furman v. Georgia, the tide shifted in favour of retribution. The theory of retribution rests on the tripod of: (i) the guilty deserve punishment; (ii) only the guilty deserve punishment; and (iii) the punishment should be proportional to the offense.
To the contrary, those who believe in abolition of retribution vehemently oppose the idea because they term it as revenge. However, it is submitted that the judiciary does not grant the punishment out of malice; instead, they deliver proportional justice.
The international consensus against the death penalty can be seen in numerous international instruments. It is notable that statutes of the Nuremberg and Tokyo tribunals included the death penalty as a form of punishment. However, their more recent versions in the form of the following statutes have done away with the capital punishment:
Though India observes the approach of “rarest of rare cases which shakes the human conscience”, it is pertinent to mention that India has ratified the International Covenant on Civil and Political Rights (ICCPR), wherein article 6 encourages abolition as a positive step in the right direction. The Council of Europe has now made it mandatory for all the new members to establish an immediate moratorium on executions and to ratify Optional Protocol No. 6 to the European Convention within three years. Article 1 of the same states that: “the death penalty shall be abolished”. It cannot be denied that India is becoming increasingly isolated in its commitment to the death penalty, as is evident from the recent ‘UN Convention on Moratorium on Capital Punishment’. The Indian judiciary, which is undoubtedly one of the best in the world, still takes recourse to the “rarest of rare” watchword.
In my belief, a crime which shakes the conscience of a civilised society goes into the domain of ‘rarest of rare’ case, for e.g., a broad daylight murder where the offender is fully conscious of his own senses and the consequences of his act. I would like to cite the example of Pratibha rape and murder case of Bangalore, where the offender was let off because he had a family at the time the sentence was passed. These factors are external factors and should not have been taken into account by the court while discounting the sentence to life imprisonment from death sentence.
In relation to the crime committed, mitigating factors and aggravating circumstances are to be seen. When aggravating circumstances exist, naturally it steps into the regime of “rarest of rare”. In presence of mitigating circumstances, adjudication has to be done by considering the crime and not the external factors. Death sentence should be retained in matters of waging war against the country or say, in a robbery. However, it should be done away with, in case of section 302, as we live in a civilised society and believe in the reformatory theory. Every criminal should be given a chance of reformation.
The apex court had upheld the constitutionality of the death penalty when the same was questioned in the case of Jagmohan Singh vs. State of U.P. (AIR 1973 SC 947). Following this, an amended version of the Code of Criminal Procedure was adopted in the same year. This new version made it necessary for the judges to note down “special reasons” while imposing death sentences and required a mandatory pre-sentencing hearing to be held in the trial court. These requirements seem to be very reasonable as it would only enable the judge in concluding whether the facts indicated any “special reasons” to impose the death penalty so as to bring it under the ambit of “rarest of rare”.
“I am of the opinion that section 302 of the IPC in so far as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of article 14 and 21 of the Constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence”
This was followed by the judgment of Bachan Singh vs. State of Punjab (with 7 other cases), wherein the Supreme Court upheld the constitutionality of the death penalty yet again. It is notable that the Bench was not unanimous in this case and Justice P. N. Bhagwati’s dissent was very much talked about amongst the legal fraternity as he pointed out that it is the breach of one’s fundamental rights guaranteed by the Constitution. This was the judgment, where it was laid down that the death penalty should be used only in the “rarest of rare” cases.
In 1991, a Supreme Court Bench again upheld the constitutionality of the death penalty in ShashiNayar vs. Union of India and others (AIR 1992 SC 395). In that case, the court decided not to go into the merits of the argument against constitutionality, stating the reason that, as the law and order situation in the country had worsened, it was not an opportune time to abolish the death penalty
By a way of judicial practice, the Supreme Court has adopted the practice of not imposing a death sentence where the judges hearing the case are not able to reach unanimity on the question of sentence or of guilt. The second is not to impose a death sentence on a person who had previously been acquitted by a lower court. From this approach, it becomes clear that our judiciary is the best sentinel in this regard as it understands and addresses public sentiments. The courts evaluate the facts in order to assert whether the case presents a “rarest of rare” which calls for nothing less than death penalty. In State of Punjab vs. Harchet Singh, the child victim of rape died as a result of pain and hemorrhage. However, on the ground that the offence was committed out of lust and not because of any enmity, the High Court reduced the death sentence to life term. One fails to understand the said approach as to how do incidents like this do not “shake the human conscience” and why would crimes of this ghastly nature not fall in the category of “rarest of rare”!
The last resort for the convict lies in Presidential Pardon (article72 of the Constitution) where appeal against death sentence could be made by the sentenced after his appeal has been dismissed by the apex court and the President has the power to grant pardon. The basis of this provision is still questionable and has been criticised very often by legal scholars. It is submitted that, it would be wise to do away with the doctrine of separation of powers. But perhaps the founding fathers of our Constitution believed that compassion and empathy are the greatest duties which need to be practiced.
The grant of this pardon was challenged by the Supreme Court and the Bench of the Supreme Court comprising Justices ArijitPasayat and S. H. Kapadia in 2006, wherein they proceeded to examine and review the constitutional provisions of the “Presidential power to grant pardon”. This subsequently sparked off a debate as to whether the Apex Court is constitutionally empowered to review the inherent power of the president as vested in article 72 of the Constitution. It is only reasonable to infer that after the highest judicial minds of the country have passed this judgment, this provision of “Presidential pardon” seems to be based on questionable ground.
Researchers and scholars have time and again insisted that imposition of death penalty definitely reduces the number of homicides. However, John Donohue, a law professor from Yale makes an interesting observation that, “the death penalty is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-toyear changes in the homicide rate caused by other factors.” Hence, it is thought-pondering as to whether the theory of deterrence would actually make a difference to the current practice of granting death penalty only in the “rarest of rare” cases.
If we analyse the situation from the victim’s point of view, we may say that, it is something what Friedrich Nietzsche, a German philosopher, calls the right to divine justice, which states that God left us with two choices: either to forgive our enemy and pray that our deed will make him a better man; or demand justice. “An eye for an eye, a tooth for a tooth” seems to be a parallel concept of Newton’s third law of motion, “every action has an equal and opposite reaction”. Nietzsche further goes on to say that it is not about revenge, it is about making peace with the universe. Law students have to grasp the exact point where they could determine the crime which would shake the human conscience. Hence, developing a legal conscience is imperative for them as they adhere to their duty of compassion. Let us not forget what the father of the nation had once said: “An eye for an eye makes the whole world blind”.
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