Death Penalty in India: as applied by Supreme Court

INDIAN SUPREME COURT – A LONG-STANDING EXPERIENCE WITH “AFTER DUE DELIBERATION OF PROCESS”

The Constitutional validity of death penalty was tested in Bachan Singh v. State of Punjab.

The Bachan Singh principle of the ‘rarest of rare cases’ came up for consideration and elaboration in Machhi Singh v. State of Punjab.

1. NIRBHYA GANG RAPE CASE Death penalty awarded categorizing it “rarest of rare cases”.

The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment

2. DEATH PENALTY COMMUTED ( 25.04.2013) Shankar Kisanrao Khade VS State of Maharashtra, the court prepared a balance sheet pertaining to the capital punishment. Justice Madan B. Lokur (concurring) while elaborately analysing the question of imposing death penalty in specific facts and circumstances of that particular case, concerning rape and murder of a minor, discussed the sentencing policy of India, with special reference to execution of the sentences imposed by the Judiciary.

OBSERVED: does prima facie appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judge-centric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.

3. Travesty Of Justice @Yakub Abdul Razak Memon Versus State of Maharashtra and Anr. (30.07.2017) -principle stated in Shatrughan Chauhan (supra), the petitioner is entitled to claim commutation of death sentence to life imprisonment on the basis of supervening circumstances. The question that emerges for consideration is whether on the ground of not granting of 14 days’ time from the date of receipt of communication of rejection of the mercy petition, should the warrant which is going to be executed at 7.00 a.m. on 30.07.2015 be stayed. Mr. Mukul Rohatgi, learned Attorney General for India, appearing for the respondent, would submit that the mercy petition is considered by the President of India in exercise of his power under Article 72 of the Constitution of India and when he has rejected the mercy petition after due consideration of all the relevant facts on an earlier occasion if such kind of repetitive mercy petitions are allowed to be submitted and further challenge to the rejection of the same is permitted, the danger of the concept of ad infinitum would enter into the field.

HELD-In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.

CHRONOLOGY -The two-Judge Bench of this Court which had decided the appeal on 21.03.2013. The review petition was dismissed by circulation on 30.07.2013 by the two-Judge Bench of this Court which had decided the appeal. A mercy petition(first) was submitted by Suleman, brother of the petitioner, on 06.08.2013 which stood rejected on 11.04.2014 by the President of India and that was communicated to the petitioner on 26.05.2014.

The Constitution Bench in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors. dealing with the rule(reviewing) opined that in death cases, the matter should be heard by a three-Judge Bench and the review petition should be heard in the open court by giving maximum time limit of 30 minutes to the convict. Accordingly, his review petition was heard by a three-Judge Bench in the open Court.

After rejection of the said review petition on 09.04.2015, he filed a curative petition on 22.05.2015 which also got dismissed on 21.07.2015. After rejection of the curative petition on the 21.07.2015, the petitioner submitted a mercy petition to the Governor, Maharashtra which was received on 22.07.2015. He also submitted another mercy petition to the President of India which was received by the President of India at 2.00 p.m. on 29.07.2015.W.P. (Crl.) No. 129 of 2015 which has been dismissed on 29.07.2015 at 4.15 PM. Both these mercy petitions have been rejected( therefore the accused was asking for another 14 days counting from 29.07.2015). The death warrant was issued on 30.04.2015 which was admittedly received by the petitioner on 13.07.2015 and the date of its execution is 30.07.2015 at 7.00 AM. WRIT PETITION (CRL.) NO.135 OF 2015 was rejected on about 3.15 a.m. on 30.07.2015, Menon executed at 7.00 AM.

PRINCIPAL OF CURATIVE PETITION EXPLAINED– The creation of curative jurisdiction by this Court is based on the Constitution Bench judgment in Rupa Ashok Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said judgment, the decisions in certain matters used to be challenged under Article 32 of the Constitution, and the Bench laid down the ex debito justitiae principle.

We are required to understand what is meant by the words “judgment complained of”. According to Rupa Ashok Hurra (supra) principle, a second review is not permissible. However, a curative petition is evolved in exercise of power under Article 142 of the Constitution of India to avoid miscarriage of justice and to see that in the highest Court, there is no violation of principle of natural justice, and bias does not creep in which is also fundamentally a facet of natural justice in a different way.

We reiterate at the cost of repetition, whether other grounds can be taken or not, need not be adverted to by us. The principle of review as is known is to re-look or re-examine the principal judgment. It is not a virgin ground as has been held by Krishna Iyer, J. in Sow Chandra Kante and Another vs. Sheikh Habib (1975) 1 SCC 674. The said principle has been reiterated in many an authority. Thus, it is luculent that while this Court exercises the jurisdiction in respect of a curative petition, it is actually the principal judgment/main judgment, which is under assail.

4. Mohammad Ajmal Mohammad Amir Kasab v. State of Maharashtra (29.08.2012)[terrorist attack]

“If the case is of death sentence, this Court can exercise its power to examine material on record first hand and come to its own conclusion on facts and law, unbound by the findings of the Trial Court and the High Court” Adambhai Sulemanbhai Ajmeri & Ors.Versus State of Gujarat

Putting the matter once again quite simply, in this country death as a penalty has been held to be Constitutionally valid, though it is indeed to be awarded in the “rarest of rare cases when the alternative option (of life sentence) is unquestionably foreclosed”. Now, as long as the death penalty remains on the statute book as punishment for certain offences, including “waging war” and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. That being the position we fail to see what case would attract the death penalty, if not the case of the appellant (PARA 585)

Against all this, the only mitigating factor is the appellant’s young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation.(para-582)

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 the imposition of death sentence but also present several other features that could not have been conceived of by the Court in Machhi Singh. We can even say that every single reason that this Court might have assigned for confirming a death sentence in the past is to be found in this case in a more magnified way (para-569)

The kind of cases in which protection to life may be withdrawn and there may be the demand for death penalty were then enumerated in the following paragraphs: “32. … It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.

Imposing Death Penalty

The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder – When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime. When the crime is enormous in proportion. For instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons (para 567)

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