Uncertain principles

At a Jammu and Kashmir Mass Movement rally in support of clemency for Mohammad Afzal Guru, sentenced to death in the Paliament House attack case, in Srinagar on December 13, 2012.

JUST when an offence qualifies to be among the rarest of rare so as to invite the death sentence is a question that cannot be answered easily by the judiciary. Much of contemporary legal discourse on the death sentence is traced to the Supreme Court’s landmark judgment in Bachan Singh vs State of Punjab (1980), which laid down the “rarest of rare” doctrine. However, only a few judges have understood its essence and applied it correctly to the cases before them.

In Sangeet vs State of Haryana , the Supreme Court’s two-judge Bench, comprising Justices K.S. Radhakrishnan and Madan B. Lokur, delivered one such judgment on November 20, which is likely to influence the discourse on the death penalty significantly.

The facts of this case and the findings of the courts clearly show the distinction between a judge-centric approach and a principles-centric approach. In 2009, the Additional Sessions Judge, Rohtak (Haryana), sentenced Sangeet and Narender to death after finding them guilty of killing four members of a family in 2004. Four others were convicted along with Sangeet and Narender for the same offence, but they were awarded life imprisonment. The accused apparently killed their victims in revenge for causing the death of a member of their family by black magic. Both the trial judge and the Punjab and Haryana High Court, which confirmed the death sentence, considered the offence committed by Sangeet and Narender brutal, premeditated, cold-blooded, cruel and diabolic.

The Supreme Court, however, considered two mitigating factors which favoured the accused. It found no evidence—contrary to the conclusion of the High Court—that Sangeet had burnt the body of his female victim from below the waist with a view to destroying the evidence of her having been subjected to sexual harassment and rape. It also found no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer. Therefore, it converted the death penalty awarded to the accused into a sentence of life imprisonment.

In addition to these factual infirmities, the Supreme Court also found itself unable to resolve the uncertainty it faced on the punishment to be awarded in capital offences—whether it should be life imprisonment or the death sentence. Owing to this uncertainty, it found that it could not fulfil the Bachan Singh requirement that the alternative sentence of life imprisonment must be unquestionably foreclosed in order to justify the award of the death sentence to the accused.

Sangeet is significant for articulating this legal uncertainty with a degree of success, unmatched by the court’s previous decisions. The uncertainty was with regard to the implementation of Bachan Singh’s principle that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal. Bachan Singh listed both the aggravating circumstances of the crime and the mitigating circumstances of the criminal, but added that these were only broad illustrative guidelines and not an attempt to make an exhaustive enumeration. It held that the courts should perform the sentencing function with evermore scrupulous care and humane concern, directed along the high road of legislative policy, outlined in Section 354(3) of the Code of Criminal Procedure (CrPC), that for persons convicted of murder, life imprisonment is the rule and the death sentence an exception.

In Bachan Singh , the four majority judges (Justice P.N. Bhagwati, the fifth judge on the Bench, dissented and held that the death sentence was unconstitutional) were concerned about ensuring that the death sentence remained an exception. According to them, it would not remain so if the courts tried to balance the aggravating factors of the crime with the mitigating factors of the criminal by giving weightage to different factors. The implication is that as a judge uses his discretion to do so, the aggravating factors are more likely to outweigh the mitigating factors and, as a result, the death sentence cannot remain an exception.

Balance sheet theory Put in this context, the Supreme Court’s judgment in Machhi Singh vs State of Punjab in 1983, delivered by a three-judge Bench, revived the theory of balancing of aggravating and mitigating circumstances through a balance sheet, thus negating Bachan Singh’s principled opposition to it. Ironically, most courts—from trial courts to the Supreme Court—had no compunction in relying on Machhi Singh after paying lip service to Bachan Singh as though they were complementary. The balance sheet theory held the field post- Machhi Singh . The flaw was discovered first in a judgment delivered by the Supreme Court in 2008, but then it was too late as some death-row convicts, sentenced via Machhi Singh , had already been hanged. Another Bench reiterated this critique of Machhi Singh in 2009, but like the previous one in 2008 it did not find it necessary to refer the question of overruling Machhi Singh to a larger Bench comprising five judges. Sangeet continued this scrutiny of Machhi Singh and reiterated the need for a fresh look at it but stopped short of referring it to a larger Bench, even though it was competent to do so.

Sangeet’s contribution, however, lies in bringing out the dichotomy between Machhi Singh and Bachan Singh very clearly. “A balance sheet cannot be drawn up of two distinct and different constituents of an incident”, is how it put it. Machhi Singh explains how a principled sentencing envisaged in Bachan Singh soon turned out to be judge-centric.

Although Sangeet does not refer to the judgment in the case of Ajmal Kasab delivered on August 29, the fact that the Supreme Court relied on Machhi Singh approvingly to sentence Kasab to death raises serious doubts whether the court adopted the correct legal approach to send him to the gallows.

Machhi Singh sought to standardise crimes into five absolute categories in order to identify the rarest of rare crime deserving the death sentence. These five categories are the manner of commission of the murder, the motive for commission of the murder, the anti-social or socially abhorrent nature of the crime, the magnitude of the crime, and the personality of the victim of murder.

Bachan Singh resolutely refrained from standardising and categorising crimes because it felt it would encourage arbitrariness by judges while deciding cases. Sangeet , therefore, found Machhi Singh to be in direct conflict with Bachan Singh , which ought to have prevailed over Machhi Singh .

In Kasab’s case, however, Justice Aftab Alam, as part of the two-judge Bench, approvingly relied on Machhi Singh in four paragraphs (566-569). Justice Alam had earlier articulated, as part of the three-judge Bench in Swamy Shraddananda II (2008), his own critical view on Machhi Singh , which he had then clearly found to be inconsistent with Bachan Singh . His turnaround in Kasab’s case, therefore, surprised observers.

He wrote in Paragraph 568 of the Kasab judgment: “The above principles [elaborated in Machhi Singh ] are generally regarded by this court as the broad guidelines for imposition of death sentence and have been followed by the court in many subsequent decisions.” He further observed in Paragraph 569: “If we examine the present case in light of the Machhi Singh decision, it would not only satisfy all the conditions laid down in that decision for imposition of death sentence but also present several other features that could not have been conceived of by the court in Machhi Singh .”

The Supreme Court and the courts below have used the Machhi Singh approach in order to sentence hundreds of convicts to death. As a result of Sangeet , all these judgments must become per incuriam (incorrect precedents to be followed by the subsequent courts). According to Yug Mohit Chaudhry, a well-known human rights lawyer, a thorough inquiry is necessary to identify these cases and address the miscarriage of justice.

Machhi Singh is just one aspect of the erroneous death sentences emanating from the courts. The Bachan Singh mandate is clear that the death penalty can be imposed only in the absence of any mitigating circumstances in favour of the accused. Yet the courts continue to confirm death sentences without making the effort to identify and consider the presence of mitigating circumstances.

Union Home Minister Sushilkumar Shinde is considering the mercy petitions of 14 death-row convicts, including that of Afzal Guru, convicted in the Parliament attack case, so as to send fresh advice to President Pranab Mukherjee. Mukherjee has one pending mercy petition to be disposed of, after receiving advice from Shinde. A scrutiny of the Supreme Court’s confirmations of death sentences in the cases of these 15 convicts has revealed that all of them either suffer from the Machhi Singh taint or suggest violation of the Bachan Singh mandate. These are valid grounds for presidential commutation of their death sentences to life imprisonment.