V. VENKATESAN, The Frontline

Interview with Justice A.P. Shah, former Chief Justice of the Delhi High Court.


“Rarest of rare principle has not been followed uniformly,” says Justice Ajit Prakash Shah. 

Justice Ajit Prakash Shah, former Chief Justice of the Delhi High Court, was one of the 14 former judges who sent an appeal to President Pranab Mukherjee to commute the sentences of nine death-row prisoners whom the Supreme Court admitted that it had erroneously sentenced to death. In this interview, he explains the significance of the Supreme Court’s judgment in the Sangeet case.

The Supreme Court has, for the second time (first time was in Swamy Shraddananda II), reiterated in ‘Sangeet’ that ‘Machhi Singh’ is inconsistent with the ‘Bachan Singh’ judgment and that many Supreme Court Benches had erroneously decided death penalty cases applying ‘Machchi Singh’ principles. How serious is this finding and how can the Supreme Court correct its error?

First, it is important to understand what was decided in the Bachan Singh judgment. The court identified the two issues to be decided as (i) whether the death penalty provided under Section 302 of the IPC [Indian Penal Code] is constitutional and (ii) whether the sentencing procedure provided for in Section 354(3) of the CrPC [Code of Criminal Procedure] gave the court unrestricted and unguided discretion, thereby allowing death sentences to be arbitrarily imposed.

With regard to the first issue, the majority ruling in Bachan Singh dismissed the challenge that the death penalty was unconstitutional, in violation of Articles 14, 19 and 21.

While answering the second issue, the court held that the normal rule is that the offence of murder shall be punished with a sentence of life imprisonment. However, the court can make a departure and impose the sentence of death only if there are special reasons for doing so and such reasons must be recorded in writing. The court laid down 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. The concluding paragraph in the majority opinion in Bachan Singh limited the death sentence to the “rarest of rare cases” which showed the exceptional nature of the death penalty that Parliament had envisaged under the Criminal Procedure Code.

Thereafter, the Supreme Court gave the judgment in Machhi Singh’s case, where the Bench (of three judges) upheld three death sentences. This decision was seen by many as one supporting the death penalty since it appeared to expand the “rarest of rare formulation” beyond the aggravating circumstances in Bachan Singh to cases where the “collective conscience of a community may be shocked”. It further held that a “balance sheet of aggravating and mitigating circumstances” had to be drawn up and a just balance had to be drawn between the aggravating and mitigating circumstances.

The recent decision in Sangeet’s case criticises the decision of Machhi Singh by stating that aggravating and mitigating circumstances are two distinct and different elements and cannot be compared with each other. A balance sheet cannot be drawn up of two different constituents of an incident. In fact, this particular formulation was not accepted in Bachan Singh. Sangeet’s decision clearly notes that the rarest of rare principle has not been followed uniformly or correctly. Nevertheless, the balance sheet theory is still being applied by several courts, post Machhi Singh.

Earlier, the decision in Swamy Shraddananda’s case also criticised the theory laid down in Machhi Singh by holding that the balance sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently and has therefore failed to remove the vice of arbitrariness from our capital sentencing system. The Bachan Singh threshold of the rarest of rare cases has been applied most variedly and inconsistently by various High Courts as well as the Supreme Court. It appears that even though Bachan Singh intended “principled sentencing”, sentencing has now really become “judge-centric”.

In this context, it is important to refer to Justice [P.N.] Bhagwati’s dissenting judgment in Bachan Singh where he said that when a judge is called upon to decide whether an accused should be killed or permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and preconceptions and his value system and social philosophy. This renders the imposition of the death penalty arbitrary and capricious.

Now the only way to correct these contradictions and inconsistencies amongst different Benches is to refer the matter to a larger Bench. We must also be mindful of the changing global trends where most countries have abolished the death penalty in law or practice. As of June 2012, a total of 141 nations (which constitute over two-thirds of the countries in the world) had abolished the death penalty in law or practice. Europe is most death penalty-free, while in the Americas only some Caribbean states and the United States use the death penalty. Of the 54 countries in Africa, 38 are abolitionist in law or practice. Central Asia and the Pacific region are also death penalty-free.

‘Sangeet’ has also found that the ‘Ravji’ precedent was wrongly followed in more cases after ‘Bariyar’ first discovered it in 2009. You wrote an appeal along with 13 other judges pleading commutation for 13 convicts, the sentences of four of whom have been commuted already. Would you suggest that the five new convicts identified in ‘Sangeet’ also must get commutation?

In giving the solution of the rarest of rare cases for imposing the death penalty, the five-judge Bench of the Supreme Court gave sufficient weight to the mitigating circumstances of the crime and the criminal. However, the decision in Ravji, which was decided by two judges, held that it is the gravity of the crime and not the criminal which is relevant to decide the appropriate punishment. Thus, the decision in Ravji was in direct conflict with Bachan Singh. The court in Bariyar’s case noticed the conflict in these two decisions and held that seven of the decisions of the Supreme Court awarding death sentence were rendered per incuriam.

However, even after the decision in Bariyar, the courts still followed the precedent in Ravji’s case. Clearly, the two prisoners inRavji’s case who were wrongly sentenced to death were executed as a result of these flawed judgments, constituting the gravest known miscarriages of justice in the history of independent India. Therefore, it is extremely important and necessary that in order to prevent such miscarriages of justice, the five new convicts identified in Sangeet’s decision must also get commutation.

It appears that even the Kasab case was wrongly decided by the Supreme Court, applying the ‘Machhi Singh’ principle. Justice Aftab Alam, who wrote the judgment in the Kasab case, also wrote the three-judge Bench verdict in ‘Swamy Shraddananda II’ in 2008, which had held that ‘Machhi Singh’ conflicted with ‘Bachan Singh’. Your comments.

It was admitted by the judges in Swamy Shraddananda’s decision that the death penalty was not free from the subjective element and the confirmation of death sentence and its commutation by the Supreme Court depended a lot on the personal predilection of the judges constituting the Bench. The 2007 decision in Aloke Dutta’s case also expresses helplessness after noticing that different criteria have been adopted by different Benches of the Supreme Court where offences were similar in nature. No sentencing policy in clear-cut terms has been adopted by the Supreme Court. Amongst these varying decisions, one can witness several disturbing trends. There have been instances where similarly placed accused in identical circumstances in the same case have been given different punishments of life imprisonment and the death sentence because they had gone before different Benches. This was seen in the 1982 decision in Harbans Singh.

Also, there is a time-honoured principle of not confirming the death penalty if one of the judges on the Bench or any of the lower courts had either acquitted the accused or sentenced him to life imprisonment. However, in Krishna Mochi (2002) and again in Bhullar (2002), the Supreme confirmed the death sentences despite one of the judges on the Bench having acquitted the accused. In Kheraj Ram (2003) and Satish (2005), the Supreme Court imposed the death sentence on persons who had been acquitted by the High Courts. Justice Bhagwati pointed out that “judicial ad hocism or judicial impressionism dominates the sentencing exercise and infliction of death penalty suffers from the vice of arbitrariness”.

There are some death penalty cases decided by the Supreme Court which do not directly cite ‘Machhi’ or ‘Ravji’, but nevertheless adopt the approach followed in those cases. How do we correct these flaws?

These decisions may not cite Machhi or Ravji, but they do follow them in principle, making them equally flawed as Machhi andRavji. In these cases also, the death sentences are liable to be commuted to life imprisonment.

What is the significance of the term per incuriam? ‘Sangeet’ does not use this term, but will its findings, if applied, make those cases that adopted the ‘Ravji’ and ‘Machhi Singh’ principles per incuriam?

The expression ‘per incuriam’ means decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some binding judicial precedent. Although the decision in Sangeet does not use the term per incuriam, Sangeet clearly mentions that the principles laid down in Machhi and Ravji are inconsistent with the decision in Bachan Singh, which was given by a larger Bench. Therefore, due to this observation in Sangeet, the decisions in Machhi and Ravji are rendered per incuriam.

Do you support a moratorium on death sentences in view of these flaws in death sentencing?

Until the time there is a relook on this issue by a larger Bench, there should be a moratorium on death sentences. Justice Bhagwati rightly pointed out in Bachan Singh that the decisions of a judge regarding the imposition of the death penalty were based on several factors that were specific to the judge, including his personal predilections. The decision of the South African Constitutional Court in S. vs Makwanyane also holds that at every stage of process, there is an element of chance and the outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and attitude of the trial judge as well as the appellate judges, and lack of financial means to engage seasoned advocates. The decision admits that it is difficult to lay down a system which is perfect and avoids arbitrariness completely.

In this regard, it is also relevant to refer to the American experience with imposition of the death penalty. Three judges in the case of Gregg said that the death penalty experiment had failed and that the death penalty experiment was a discredit to the law because of its arbitrary and unprincipled use.

Should a commission be set up to identify flawed death sentences?

In the context of the interpretation of Section 27 of the Evidence Act, the Privy Council overruled the decision of the Madras High Court in Goundan’s case. Since a large number of prisoners were executed and many more were facing the gallows because of the interpretation of Section 27 in Goundan’s case, the Madras Presidency instituted a commission to examine all convictions based on the Goundan judgment, reprieved the sentences, and unconditionally released the prisoners.

However, a commission to identify death sentences given on wrong principles of law may not be necessary now since such cases have already been identified by the Supreme Court in Sangeet’s decision. In all such cases, the executive should consider commutation of the death sentence to life imprisonment.

In the U.S., the Supreme Court restored the death penalty in ‘Gregg vs Georgia’ (1976) after finding it unconstitutional in ‘Furman’ in 1972. The Indian Supreme Court last heard a challenge to the death penalty in 1992 in ‘Shashi Nayar vs Union of India’, but found that the time was inopportune to reconsider the law on the issue. The South African Constitutional Court found it unconstitutional in ‘S vs Makwanyane and Another’ in 1995. Has the time come for the Indian Supreme Court to reconsider the law on the subject?

The Supreme Court in Bachan Singh took a leaf out of the decision in Gregg and introduced the concept of aggravating and mitigating circumstances. Both the Benches in Bachan Singh and Gregg believed that the discretion to impose the death penalty following clear guidelines balancing aggravating and mitigating circumstances was sufficiently structured and excluded arbitrariness and inconsistency. Subsequent events have shown that this belief was completely misplaced. Even the decision in S vs Makwanyane, while holding the death penalty to be unconstitutional, admitted that it was very difficult to come up with clear criteria that would exclude arbitrariness completely. Therefore, the time is now right to have a complete review and reconsideration of the law on this subject.

What should be the principles that guide the exercise of mercy power under Article 72? Can the President consider erroneous death sentences as a ground to commute death sentences?

Once the judicial process has come to an end, there are two ways in which a convict can avoid execution by appealing to the executive. The first is commutation; the appropriate government can commute a death sentence under the provisions of the IPC and the CrPC. The second is a commutation or pardon granted by the President of India or the Governor of the relevant State under Article 72 and Article 161 of the Constitution of India. The second process is not constrained by the judicial verdict. Where the constitutional powers of clemency are involved, the extent of judicial review is extremely limited. The Supreme Court has observed in a number of cases that unless in extreme cases, the courts should not intervene in the exercise of powers of clemency by the Governor or the President.

The executive is vested with sufficient powers under Articles 72 and 161 to commute the death sentence of prisoners who have been wrongly sentenced to death by ignoring the position of law in Bachan Singh’s case.

Do you think the time has come for Parliament to substitute the death penalty with imprisonment for the entire life of the convict (without remission) in the rarest of rare cases?

India stands with Afghanistan, Pakistan and Bangladesh in holding on to the death penalty. We are one of the nations that retain the death penalty but rarely execute people. The criterion of the rarest of rare cases has not resulted in any satisfactory solution at all. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.

For this reason, the global trend is increasingly and overwhelmingly in favour of abolitionism. We would be deluding ourselves if we were to believe that the execution of a few persons sentenced to death will provide a solution to the unacceptably high rate of crime. In reality, capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure. Therefore, India should join the list of such abolitionists as the legal safeguards aimed at avoiding miscarriage of justice have failed to deliver. The decision to substitute the death penalty with imprisonment for the entire life (without remission) for the rarest of rare cases should be decided appropriately by the legislature.

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