Judiciary

A case against the death penalty

Print edition : February 06, 2015

The gallows at the Central Jail in Kannur, Kerala. A file photograph. Photo: MAHESH HARILAL

Saibanna Ningappa Natikar, a life convict who while on parole killed his wife and daughter. He was then sentenced to death. President Pranab Mukerjee rejected his mercy petiton in 2013. Photo: Arun Kulkarni

Dayanidhi Bisoi, one of the 13 whom the Supreme Court admitted was wrongly convicted. The Odisha Governor commuted his sentence to life imprisonment. Photo: Aneel Mishra

September 7, 2012

WITHIN a few weeks of Pranab Mukherjee assuming office as the 13th President of India on July 25, 14 former judges of eminence signed an unusual appeal addressed to the President. The appeal, in the form of separate letters, sought his intervention to commute the death sentences of 13 convicts, currently lodged in various jails across the country, using his powers under Article 72 of the Constitution.

The unusual appeal does not stem from the former judges’ principled opposition to the death penalty, though some of them may believe in its abolition personally. They have appealed to the President because these 13 convicts were erroneously sentenced to death according to the Supreme Court’s own admission and are currently facing the threat of imminent execution. The Supreme Court, while deciding three recent cases, held that seven of its judgments awarding the death sentence were rendered per incuriam (meaning out of error or ignorance) and contrary to the binding dictum of “rarest of rare” category propounded in the Constitution Bench judgment in Bachan Singh vs State of Punjab (1980) (2 SCC 684). The three recent cases were Santosh Kumar Bariyar vs State of Maharashtra (2009) (6 SCC 498), Dilip Tiwari vs State of Maharashtra (2010) (1 SCC 775), and Rajesh Kumar vs State (2011) (13 SCC 706).

The former judges also informed the President in the appeal that two prisoners who had been wrongly sentenced to death, Ravji Rao and Surja Ram (both from Rajasthan), had been executed on May 4, 1996, and April 7, 1997, respectively, pursuant to the flawed judgments. These, they said, constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India. The Supreme Court’s admission of error had come too late for them, they wrote.

They told the President that the concerns expressed in the appeal had nothing to do with the larger debate over the desirability of retaining the death penalty. “Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner. Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future,” the appeal explained.

The judges also annexed an explanatory note to their appeal so as to convince the President that the sentences of these 13 convicts indeed deserved to be commuted. In this, they cited the landmark Bachan Singh vs State of Punjab, which laid down the “rarest of rare” doctrine, and said it emphasised giving sufficient weight to the mitigating circumstances pertaining to the criminal along with the aggravating circumstances relating to the crime. They then explained how this Bachan Singh dictum laid down by a Constitution Bench had been reversed in a later case.

In Ravji @ Ram Chandra vs State of Rajasthan (1996) (2 SCC 175), a case which was decided by a Bench of two judges, the Supreme Court held that “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” (paragraph 24). This aspect of the decision in the Ravji case directly conflicts with the Bachan Singh ruling. Thereafter, the Supreme Court repeatedly invoked the Ravji precedent in death penalty cases so as to limit the focus only to the circumstances pertaining to the crime and exclude the circumstances pertaining to the criminal until another two-Bench judge of the Supreme Court discovered this folly in Bariyar, in 2009.

In Bariyar, the Bench held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight. In this case, the appellant had killed his victim, a young boy, whom he had kidnapped for ransom. Yet, the Bench commuted his death sentence, imposed by the Bombay High Court, to rigorous imprisonment for life as, in its view, the mitigating factors in the case were sufficient to take it out of the “rarest of rare” category. The Bench believed that though the socio-economic backwardness of the convict might not dilute guilt it was a mitigating circumstance and held that there was a potential for reform. Relying on Bachan Singh, the court in Bariyar held that the prosecution must prove, as a precondition for awarding the death penalty, that reform and rehabilitation of the criminal would not be possible.

The key issue here is Section 354(3) of the Code of Criminal Procedure (CrPC). This provision states 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 the sentence of death, the special reasons for such sentence.

In Bachan Singh, the Supreme Court explained what the phrase “special reasons” meant in this provision. It said: “The expression ‘special reasons’ in the context of this provision obviously means ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal” (paragraphs 161 at page 738 of the judgment). In paragraph 163, Bachan Singh further noted: “....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”. The circumstances of the criminal would include, as the Supreme Court held in one case, the mindset of the criminal and whether he was under the grip of social factors such as caste.

In Bariyar, the Supreme Court got an opportunity to explain this further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Having understood the Bachan Singh judgment clearly, the Bariyar Bench had no compunction in exposing the flaws in the Ravji judgment. The Bench said in paragraph 63: “We are not oblivious that Ravji case has been followed in at least six decisions of this court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam.”

The Bariyar Bench went further in identifying six cases where the Supreme Court had erroneously applied the precedent laid down in the Ravji case and held that the court had wrongly decided them. They were Shivajji vs State of Maharashtra, Mohan Anna Chavan vs State of Maharashtra, Bantu vs State of Uttar Pradesh (President Pratibha Patil commuted the sentence of this convict), Surja Ram vs State of Rajasthan (Surja Ram was executed), Dayanidhi Bisoi vs State of Orissa, and State of U.P. vs Sattan (this case also includes another convict, Upendra).

The Bariyar Bench held: “It is apparent that (in these cases) Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent” (paragraph 63). It observed that the Supreme Court had not brought on record and considered any of the circumstances relating to the seven convicts in these six cases during the sentencing deliberations. Despite the binding precedent of Bachan Singh, Ravji’s decision and the decisions in the aforementioned six cases have narrowed the sentencing considerations to circumstances relating to the crime alone, as noted in Bariyar.

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. In this case, the Supreme Court confirmed the conviction and death sentence of six convicts, one of whom was declared a juvenile recently and, therefore, should not have been sentenced to death. The former judges appealed to the President to commute the death sentence of these convicts also.

Commutation justified

In addition to the six cases which Bariyar faulted for having followed Ravji’s wrong precedent, it identified another case where the commutation of the death sentence is justified. The case is Saibanna vs State of Karnataka (2005). Saibanna was a life convict. While on parole, he killed his wife and daughter. The Supreme Court sentenced him to death on a reasoning which effectively made death punishment mandatory for the category of offenders serving life sentence.

However, the Supreme Court had in Mithu vs State of Punjab (1983) already struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence. The reason is that if the death sentence is mandatory, then it is meaningless to hear the convict on the question of sentence, and it becomes superfluous to state the reasons for imposing the sentence of death. The ratio decidendi (the legal principle which forms the basis of the judgment) of Bachan Singh is that the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life. In Bachan Singh, the court also insisted that a court could impose the death penalty only in the rarest of rare cases when the alternative option is unquestionably foreclosed. (The ratio decidendi of a five-judge Bench would be binding on other Benches of the Supreme Court, unless overruled by a Bench comprising more than five judges. Bachan Singh was delivered by a five-judge Constitution Bench.)

In Saibanna, the court was doubtful whether a person already undergoing imprisonment for life could be visited with another term of imprisonment for life to run consecutively with the previous one. Rather than resolve this doubt through constitutional means, the Supreme Court opted for the easy way out by imposing the death penalty on Saibanna. In Bariyar, therefore, the Supreme Court declared its own ruling in Saibanna as being inconsistent with both the Mithu and Bachan Singh judgments and, as a result, per incuriam.

Going by President Pratibha Patil’s illustrious record in commuting the death sentence of 35 convicts in just two and a half years of her five-year tenure, she might have commuted Saibanna’s sentence, too, had the government recommended it.

When Pratibha Patil completed her term on July 24, she left a fascinating record and a legacy that none of her successors can ignore easily. She began with a backlog of 23 undecided mercy petitions from her immediate predecessors and received nine fresh petitions, involving 40 convicts. Of these, she accepted 18 petitions (involving 35 convicts), rejected three (involving five convicts), and passed on 11 undecided petitions (involving 16 convicts) to her successor, Pranab Mukherjee. One of the 35 convicts whose sentences she commuted on June 2 this year, Bandu Baburao Tidake had died on October 18, 2007, while waiting for her decision, but the report about his death apparently did not reach the Home Ministry when it recommended his commutation.

Pratibha Patil’s legacy also has a qualitative dimension. The Home Ministry had often changed its recommendations with regard to the rejection of mercy petitions whenever there was a change of Minister with a new government or with a Cabinet reshuffle, and agreed to a review of the pending recommendations with the President.

Her aide told Frontline: “She saw to it that the government has applied its mind, and due deliberations have taken place on every pending petition.”

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