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#India-For a moratorium on death sentence

V. VENKATESAN, Dec 10, The Hindu

There is a need to identify cases in which the courts might have erred in applying the principle that limits the imposition of the death penalty

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh (1980) is the source of contemporary death penalty jurisprudence in India. Its major contribution was to limit the imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.

However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.

Matter of concern

It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its helplessness. The frequency of such criticism from the judiciary may appear to be exercises in genuine introspection but to the litigants, the very credibility of the court’s death penalty decisions is at stake.

The execution of death row prisoners in might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by itself, the executive cannot pretend to be unconcerned.

The latest admission of such error is to be found in the judgment delivered by Justice Madan B. Lokur for himself and on behalf of Justice K.S. Radhakrishnan, in Sangeet & ANR vs. State of Haryana, on November 20.

The genesis of  can be traced to another Supreme Court judgment delivered in 2009. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, a two-judge Bench admitted to error in the sentencing to death of seven convicts by the previous benches of the court. Similar error was immediately noticed in the sentencing to death of six more convicts, after the delivery of judgment in Bariyar, taking their total to 13.

The error was the reliance by the court on a legal precedent, which Bariyar declared as per incuriam. The term, per incuriam, refers to a decision which a subsequent court finds to be a mistake, occurring through ignorance of a relevant authority, and therefore not a binding precedent.

Erroneous precedent

The erroneous legal precedent was Ravji v. State of Rajasthan, decided in 1996 by a two-judge Bench. In Ravji, the court had found only characteristics relating to the crime, to the exclusion of the criminal, as relevant to sentencing. Bariyar noted with disapproval that the court had relied on Ravji as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent, in six cases. This was inconsistent with the Bachan Singh ruling by the five-Judge Constitution Bench in 1980, which had shifted the focus of sentencing from the “crime” to the “crime and the criminal”.

In Sangeet, the Radhakrishnan-Lokur Bench has continued the judicial scrutiny started by Bariyar of post-Bachan Singh death penalty cases, to see if they have complied with the requirements of the law. Thanks to this scrutiny, five other cases which resulted in the wrongful sentencing to death of six more convicts have come to light. They are Shivu, Jadeswamy, B.A. Umesh, Rajendra Pralhadrao Wasnik, Mohd. Mannan, and Sushil Murmu. The former President, Pratibha Patil, has already commuted Murmu’s death sentence to life imprisonment.

Back to 13

Five of the 13 convicts identified in and after Bariyar have already got their sentences commuted to life imprisonment by competent authorities. With Sangeet pointing to five more such convicts, the total number of prisoners to be taken off the death row is back to 13 again.

Unlike Bariyar, however, Sangeet has not declared the five erroneous judgments per incuriam. But the result of the scrutiny in both the cases is the same: no future Bench can cite these cases on a point of law, without inviting the Ravji taint. The recent appeal by 14 former judges to the President to spare the lives of the eight convicts, who have been wrongly sentenced to death by the Supreme Court must, therefore, apply equally to these five convicts identified in Sangeet.

It is not unusual to come across observations by the courts while justifying the death sentence, that there is extreme indignation of the community over the nature of the crime, and that collective conscience of the community is petrified by the extremely brutal, grotesque, diabolical, revolting or dastardly manner of the commission of the crime. After making these observations, it is easy for the courts to jump to the conclusion that the criminal is a menace to society and shall continue to be so and he cannot be reformed.

These are empty clichés repeated ad nauseam without any basis. Sangeet, therefore, gently reminds the courts about the need to back such observations with some material. The nature of the crime alone cannot form such material, it has held.

Sangeet has pointed out a grave infirmity with regard to the sentencing of Umesh and Sushil Murmu, to death. The Supreme Court found both Umesh and Sushil Murmu incapable of rehabilitation and, therefore, deserving of the death sentence because of their alleged involvement in crimes other than those for which they were convicted — turning upside down the doctrine of presumption of innocence, the cornerstone of our criminal jurisprudence.

Bachan Singh, delivered by a five-judge Constitution Bench, clearly discarded the proposition that the court must balance aggravating and mitigating circumstances through a balance sheet theory. The theory requires weighing aggravating factors of the crime against the mitigating factors of the criminal. In Machhi Singh (1983), however, a three-judge Supreme Court Bench, brought the balance sheet theory back, and gave it legitimacy. The theory has held the field post-Machhi Singh.

Sangeet has sought to revive the Bachan Singh dictum that the aggravating circumstances of the crime and the mitigating circumstances of the criminal are completely distinct and different elements, and cannot be compared with one another. Therefore, it has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh.

Sangeet holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case falls under the rarest of rare category, a test enunciated in Bachan Singh. 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 Radhakrishnan-Lokur Bench, being a two-judge Bench, could not have overruled Machhi Singh, despite its obvious flaws, and the source of much of the inconsistency in our death penalty jurisprudence. A three-judge bench in Swami Shraddhanand II in 2008 had raised similar doubts about Machhi Singh; but the courts continue to invoke it.

In its judgment delivered on August 29, among other things, the Supreme Court relied on the flawedMachhi Singh for its reasoning, and used the balance sheet theory, arraigned by Sangeet, to sentence Ajmal Kasab.

The serious issues raised in Sangeet are incapable of being resolved by the judiciary itself. Any delay in their resolution will inexorably create more death row convicts, than what is justified legally. There is indeed a case for the government to immediately announce a moratorium on executing death sentences and set up a Commission to identify the cases in which any of the courts — trial courts, high courts and the Supreme Court — might have erred in correctly applying the Bachan Singh principles, while sentencing. The findings of the Commission will be useful for deciding the future of death sentence in the country.

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