A Chance to Overcome Incoherence in Indian Jurisprudence?

Indian jurisprudence is at a place today where we are neither sure of the deterrent effect of the death penalty nor as to when it ought to be awarded. Whichever way one wants to look at it, the death penalty serves no reasonable penological purpose. The only objective that it seems to fulfil is the aberrant sense of catharsis that it offers to a public baying for blood. Perhaps, the Law Commission’s new report will serve to provide the research for a fresh constitutional challenge. And perhaps the Supreme Court will, on this occasion, play its true role as a counter-majoritarian institution.

Suhrith Parthasarathy ([email protected]) practises at the Madras High Court, Chennai.

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

– Justice Potter Stewart of the US Supreme Court in Furman vs Georgia.1

Of all the arguments to be made against the death penalty it is the punishment’s inglorious irrevocability that is most resonant. On 4 May 1996, Ravji Rao was hanged to death by the state of Rajasthan just over three years after he had committed the murder of his pregnant wife and three children. Rao’s sentence had been confirmed by the Supreme Court of India, only months earlier. The Court in Ravji alias Ram Chandra vs State of Rajasthan2 had found Rao’s crime so brutal that his economic and social status was, to it, irrelevant in determining his sentence. “It is the nature and gravity of the crime but not the criminal”, wrote the Court, “which are germane for consideration of appropriate punishment in a criminal trial.” Only, the Court was wrong.

In 2009, in Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra,3 the Supreme Court declared its judgment in Ravji per incuriam. According to justice S B Sinha, Ravji was rendered in ignorance of law and binding precedent. The conclusion in Ravji’s case that it is only the characteristic of a crime, to the complete exclusion of the social and economic status of a criminal, which ought to be relevant in sentencing a convict, was, according to Sinha, palpably erroneous. It ran counter, Sinha noted, to the diktats of Bachan Singh vs State of Punjab,4 which remains the central law governing capital punishment in India. Here, the Supreme Court had ruled that

in fixing the degree of punishment or making the choice of sentence for various offences… 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 consequences of Ravji were disastrous. At least 15 criminals had been sentenced to death as a result of the decision, and for two of them – Rao and Ram – the Supreme Court’s admission of its own error had come too late.

Since Bariyar, which brought out the inherent flaw in Ravji, the court has observed in several decisions that the effects of following Ravji had deeply blemished the court’s sentencing policy.5 In Sangeet vs State of Haryana,6 for example, the court pointed out that even after its declaration that Ravji had been erroneously decided, it had continued to render irrelevant a criminal’s socio-economic background in determining the sentences of numerous convicts. For instance, inMohd Mannan vs State of Bihar,7the court, in referring merely to the nature of the crime – which in this case was a brutal rape and murder of a seven-year-old girl – confirmed the award of the death sentence. “When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified”, wrote the court, “one has to lean towards the death sentence”.

The penological disaster brewed by Ravji even promoted a group of 14 former judges of the Supreme Court and various high courts to make an extraordinary appeal to the President of India.8 In a letter dated 1 July 2012, the group implored the government to commute the sentences of 13 persons in seven different cases to life imprisonment. Capital punishment in each of their cases, the retired judges pointed out, had been awarded based on a now-admittedly flawed application of the law. “This matter goes to the very heart of our Constitution and the system of democratic government”, they wrote, “because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.”

The moral confusion wrought in the minds of India’s judges by decisions such as Ravji has since extended to other areas of bureaucratic concern. Recently, the Supreme Court had to intervene to commute to life imprisonment the sentences of 15 convicts on the death row. In Shatrughan Chauhan vs Union of India9 the Court ruled that an unreasonable delay in disposing a mercy petition filed by a person on the death row was tantamount to torture, and was valid ground for commuting his or her death sentence.10 For instance, in the case of Gurmeet Singh, one of the petitioners before the Supreme Court, there had been a delay of more than seven years in the disposal of his mercy petition by the governor and the president. As a result, Singh had spent 26 years in custody – more than double what most convicts sentenced to life imprisonment undergo.

Law Commission Report

It is these decisions – in Chauhan, which shows that the process adopted by the executive in disposing mercy petitions filed by death row convicts is often arbitrary and capricious, and Bariyar and Sangeet, which show the vagaries and uncertainties of India’s penology – that have now prompted the Law Commission of India to review the country’s capital punishment laws. There is, the commission believes, a woeful lack of research on the issue of death penalty in India in spite of the glaring iniquities highlighted in the Supreme Court’s jurisprudence. In a consultation paper released on 24 May, the Commission notes,

The state of research on the application of death penalty law by the judiciary is so inadequate that chances of an informed and rigorous policy analysis on this issue are seriously impeded. A constitutional challenge if and when taken up by the Supreme Court or a legislative change in the law will be ill served in the present environment of lack of study on the issue.

With a view to furthering the analysis on the subject, the commission has invited views from the general public. Once it receives these views, it will proceed to study data relating to the death penalty collected from various trial courts, high courts and the Supreme Court to arrive at its final report.

The commission’s work is likely to be of particular importance because a previous constitutional challenge before the Supreme Court ended in failure. It is this decision in Bachan Singh vs State of Punjab,11 which serves as bedrock to the entire gamut of death penalty jurisprudence in India. Here, the validity of two provisions was in question: Section 302 of the Indian Penal Code (IPC) 1860 insofar as it imposed the sentence of death for crimes of murder, and Section 354(3) of the Code of Criminal Procedure (CrPC) 1973, which in prescribing the procedure for the award of a death sentence, according to the petitioners, invested the Court with unguided and untrammelled discretion.12

The challenges in Bachan Singh were made on three primary grounds. First, the death penalty infracted the six freedoms comprised in Article 19(1) of the Constitution. Since capital punishment served no clearly identifiable social purpose, and since its deterrent effects were unproven, at best, it was argued that it could not represent a reasonable restriction on the right to human dignity of an individual. Second, it was contended by the petitioners that capital punishment contravened the right to life and personal liberty guaranteed by Article 21. Post Maneka Gandhi vs Union of India,13 the procedure established by law through which the right to life and personal liberty could be curtailed had to be just, fair and reasonable. In other words, our Constitution, according to the Supreme Court, guaranteed not merely procedural but also substantive due process. And the death penalty, the petitioners in Bachan Singh argued, was opposed to the fundamental tenets of due process – which required the state to treat each person’s life with equal importance. Third, and finally, it was argued that the vice of arbitrariness permeated the law of capital punishment in India. In bestowing the court an unhindered discretion in determining when to grant the ultimate sentence, the law, according to the petitioners, violated Article 14 and its guarantee of equality.

The majority of judges in Bachan Singh, however, rejected each of these submissions.14 Curiously, the Court concluded that penal laws could almost never infract the rights mentioned in Article 19(1). As Justice Sarkaria wrote,

It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1).

Second, the Court held that neither Section 302 of the IPC, which allowed courts to sentence people to death for committing murder, nor Section 354(3) of the CrPC, violated Article 21. The Constitution’s framers, Sarkaria wrote, were conscious of the existence of death penalty for murder.15 Therefore, even if the death penalty violated a person’s right to life, it would be justified so long as the procedure fixing such punishment was just, fair and reasonable, in accordance with Article 21. Here, the procedure encompassed in Section 354(3), which required a judge granting a death sentence to record special reasons for doing so, was, according to the majority in Bachan Singh, in conformity with the Maneka-principles. The guidelines, wrote Sarkaria, were neither arbitrary nor unfair, and they required the court to exercise its discretion in a manner known to law. As a result, neither Section 302 of the IPC nor Section 354(3) of the CrPC violated the fundamental guarantees of Articles 21 and 14 of the Constitution.16

However, with a view to guiding the sentencing process, the majority in Bachan Singh further ruled that in cases of murder, the death penalty ought to be the exception as opposed to the rule. Capital punishment, according to the Court, could be inflicted only in the gravest cases of extreme culpability, and in making the choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also. “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality”, wrote Sarkaria. “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”17

‘Rarest of Rare’

This “rarest of rare” doctrine has since transfused death penalty literature in India like a brooding omnipresence. But the doctrine’s chief proposition – that the death penalty ought to be awarded sparingly – was diminished by the Supreme Court only a year after Bachan Singh. In Machhi Singh vs State of Punjab,18 a three-judge bench of the Court fell into a trap that the majority in Bachan Singh had been careful to avoid. It sought to define a “rarest of rare” case by providing concrete examples of different categories of cases where the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty”. Each of these categories, however, quite opposed to the diktats of Bachan Singh, focused only on the crime, as opposed to the criminal. These were, respectively, the “manner of commission of murder”, the “motive for commission of murder”, the “anti-social or socially abhorrent nature of the crime”, the “magnitude of crime”, and the “personality of victim of murder”. In the decades that followed, therefore, although the courts often paid their homage to Bachan Singh’s central thesis, they nonetheless relied on Machhi Singh to determine what a rarest of rare case was. Consequently, as opposed to the death sentence being awarded only in cases where the alternative option was foreclosed by a supposed inability to reform the offender, capital punishment was considered the appropriate penalty for murder purely on the basis of the nature and characteristic of the crime.

The Machhi Singh doctrine, as we have seen through cases such as Ravji, quite apart from being contrary to Bachan Singh’s edicts, has also ingrained in India’s death penalty jurisprudence a confused arbitrariness. In Swami Shraddananda (2) vs State of Karnataka,19 the Supreme Court, for the first time, recognised the flaws in Macchi Singh’s decision. Justice Aftab Alam, writing on behalf of a three-judge bench, ruled that the categories framed in Machhi Singh,while useful, could not be taken as “inflexible, absolute or immutable.” A year later in Bariyar, Justice Sinha highlighted the particular incoherence bred by Machhi Singh, which had given rise to a state of uncertainty in capital sentencing law that was clearly in foul of constitutional due process. Yet, even after Swami Shraddananda (2) and Bariyar, the courts continue to apply Machhi Singh’s conditions as a litmus test, while giving the “rarest of rare” doctrine a complete go-by.

In 2011, for instance, in Ajitsingh Harnamsingh Gujral vs State of Maharashtra,20 a two-judge bench of the Supreme Court confirmed the award of the death sentence by altogether ignoring the social and economic status of the criminal. Justice Markandey Katju, who wrote the court’s opinion, said, in conclusion, that

burning living persons to death is a horrible act which causes excruciating pain to the victim, and this could not have been unknown to the Appellant…In our opinion, a person like the Appellant who instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated. The balance sheet is heavily against him and accordingly we uphold the death sentence awarded to him.

Curiously, the court in Ajitsingh’s case neither cited Bariyar nor thought it fit to justify how the offender in the case was incapable of being reformed. Going by Katju’s logic, it is difficult to envisage any rationale for implementing a reformatory system of criminal justice.

Incoherence Persists

The fundamental incoherence in India’s death penalty jurisprudence has now been further exacerbated by a new series of Supreme Court verdicts. In February 2013, in Gurvail Singh vs State of Punjab,21 a two-judge bench of the court supplied a completely new interpretation to Bachan Singh to hold that “to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused.” In other words, unless the crime has been proved to be particularly reprehensible and dastardly, and unless there is nothing in the criminal’s background to suggest that he is incapable of being reformed, the death penalty ought not to be awarded. This conclusion in Gurvail Singh has been seemingly augmented by the Supreme Court through its decision in Shankar Kisanrao Khade vs State of Maharashtra.22 However, the opinion of the Court, written by Justice K S Panicker Radhakrishnan, has only confused matters further. Radhakrishnan writes:

To award death sentence, the ‘crime test’ has to be fully satisfied, that is 100% and ‘criminal test’ 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record, etc, the ‘criminal test’ may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R lest). R-R Test depends upon the perception of the society that is ‘society centric’ and not ‘Judge centric’ that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.

Justice Radhakrishnan in his topsy-turvy verdict appears to have misread Bachan Singh’s dictum. He seems to hold that the test to determine what constitutes a rarest of rare case is distinct from one which takes into account the socio-economic characteristics of the criminal. He first rules that there ought to be no mitigating circumstance favouring the criminal to award the death penalty, and then, intriguingly, finds that a so-called “R-R test” ought to nonetheless be conducted to see whether society’s abhorrence demands the award of the penalty. Justice Radhakrishnan’s conclusion, therefore, contradicts the fundamental thesis that he seeks to originally endorse.

In any event, in a move that seeks to revert the theory of death penalty in India to the Machhi Singh doctrine, the Supreme Court has now held, in Mahesh Dhanaji Shinde vs State of Maharashtra, that the decision in Shankar Kisanrao Khade treads beyond the mandates of Bachan Singh.23 Where this leaves us is not only questionable but also perplexing. We are at a place today where we are neither sure of the deterrent effect of the death penalty nor are we sure of when it ought to be awarded. Whichever way one wants to look at it, the death penalty serves no reasonable penological purpose. The only objective that it seems to fulfil is the aberrant sense of catharsis that it offers to a public baying for blood. The death penalty, howsoever implemented, can never fulfil the demands of constitutional due process. Perhaps, the Law Commission’s report will serve to provide the research for a fresh constitutional challenge. And perhaps the Supreme Court will, on this occasion, play its true role as a counter-majoritarian institution.


Furman vs Georgia, 408 US 238 (1972).

Ravji alias Ram Chandra vs State of Rajasthan (1996) 2 SCC 275.

Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) 6 SCC 498.

Bachan Singh vs State of Punjab (1980) 2 SCC 684.

5 See for example: Dilip Tiwari vs State of Maharashtra (2010) 1 SCC 775, Rajesh Kumar vs State (2011) 13 SCC 706,Sangeet vs State of Haryana (2013) 2 SCC 452; Mohinder vs State of Punjab (2013) 3 SCC 294.

Sangeet vs State of Haryana (2013) 2 SCC 452.

Mohammad Mannan vs State of Bihar (2011) 5 SCC 317.

8 V Venkatesan, “A Case against the Death Penalty”, fl2917/&prd=fline& (last visited: 18 June 2014).

Shatrughan Chauhan vs Union of India (2014) 3 SCC 1.

10 The dictum in Chauhan was followed by the Supreme Court in V Sriharan vs Union of India (2014) 4 SCC 242. Here, a three-judge bench commuted to life imprisonment the death sentences awarded to three individuals who had conspired and murdered the former Indian Prime Minister Rajiv Gandhi.

11 See: supra note.

12 See: A G Noorani (1982), “Death Penalty and the Constitution”, EPW, Vol XVII, No 36, 4 September.

13 Maneka Gandhi vs Union of India (1978) 1 SCC 248.

14 Justice R S Sarkaria wrote on behalf of himself, Chief Justice Y V Chandrachud, and Justices N L Untwalia, and A C Gupta. Justice P N Bhagwati wrote a dissenting opinion.

15 Articles 72 and 161, which respectively empower the President and the Governor to commute sentences including death sentences, shows that the framers were quite cognizant of the existence of the death penalty for certain offences when drafting the Constitution.

16 Justice P N Bhagwati famously dissented from the majority’s decision in Bachan Singh. However, his opinion was rendered nearly two years after the majority’s verdict was announced. In his dissent, Bhagwati holds that the death penalty violates both Articles 14 and 21 of the Constitution.

17 The emphasis here is mine.

18 Machhi Singh vs State of Punjab (1983) 3 SCC 470.

19 Swami Shraddananda (2) vs State of Karnataka (2008) 13 SCC 767,

20 Ajitsingh Harnamsingh Gujral vs State of Maharashtra, AIR 2011 SC 3690.

21 Gurvail Singh vs State of Punjab (2013) 2 SCC 713.

22 Shankar Kisanrao Khade vs State of Maharashtra (2013) 5 SCC 546.

23 See: Mahesh Dhanaji Shinde vs State of Maharashtra 2014 (3) SCALE 96.