Update: I have been asked why the case is a landmark. I realise now that in my excitement, I failed to highlight the implications of the case properly. There is hardly any DP case where seperate evidence is led on sentencing, and never any evidence on rehabilitation. If the ruling in this case is followed sincerely, DP is all but dead. Prosecution will have the insurmountable task of proving not just guilt, but additionally (on additional evidence at separate sentence hearing) that the accused is beyond rehabilitation–something that will be possible only in extremely rare cases where the accused accepts the crime, shows no remorse and threatens to do it again. At present, in most DP cases, no additional evidence is led at the sentencing stage, and the evidence hardly relates to the possibility of rehabilitation. On this ruling, most if not all the post-Bachan Singh cases where DP was imposed were wrongly decided (by Bachan Singh standards as understood in Bariyar).

The Supreme Court delivered the judgment in Santosh Bariyar v State of Maharashtra on the 13th of May 2009. This is sure to become a landmark case on the issue of death penalty, and a natural follow up on Justice Ganguly’s recent dissent in Rameshbhai Rathod v State of Gujarat (see this previous post for a discussion on that case). For all our previous posts on death penalty, readers may want to see this.

In Bariyar, the judgment of the Court is delivered by Justice Sinha. In a learned opinion, Justice Sinha revisits Bachan Singh as the defining law on the subject. True to his style, the judgment is a progressive one, and justified by a rigorous reading of precedents and constitutional norms. It is rare to see a sound legal judgment, which does not rely upon anecdotal evidence and platitudes. Given the workload of Supreme Cour judges, the rarity is understandable, yet these rare judgments are commendable.

Justice Sinha holds that the first important value underpinning Bachan Singh is that of individualised sentencing. Therefore, mandatory death penalty is unconstitutional (citing Mithu v State of Punjab). He recalls the Court’s words in Bachan Singh: ‘Judges should never be bloodthirsty.’ The comment is important, in light of Justice Pasayat’s approach to death penalty (although Justice Sinha’s judgment does not explicitly mention the latter). Yet Sinha’s insistence that public opinion is irrelevant to the judicial role in sentencing is a timely reminder that as counter-majoritarian institutions, courts should stop playing to the gallery: ‘Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we can not take note of it….The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence.’

The second fundamental ratio in Bachan Singh that the Court emphasises upon is perhaps most crucial, and will have far-reaching consequences. The Court says that Bachan Singh requires a mandatory pre-sentence hearing stage where evidence on setencing must specifically be adduced. Further, it says that the evidence must not only relate to the crime, but also the criminal, including her socio-economic background. Finally, the prosecution must show on evidence that the alternative option is unquestionably foreclosed. In other words, the prosecution must show that rehabilitation is an impossibility. This will be possible in rarest of rare cases, indeed. The relevant portions of the opinion are worth quoting at length:

It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and “Special Reasons”

Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons” if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956 SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341], Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State of Tamil Nadu, [( 1981 ) 3 SCC 11], Jumman Khan v. State of U.P, [(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381] on this.

Nature of Information to be Collated at Pre-sentence Hearing

At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis.

But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th report of the Law Commission. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:

4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.

…

Alternative Option is foreclosed

Another aspect of rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum – “that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability.

Incarceration, life or otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution – all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end anything to do with the life. This is the big difference between two punishments. Before imposing death penalty, therefore, it is imperative to consider the same.

Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigor when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh (supra) sets the bar very high by introduction of Rarest of rare doctrine.

To translate the principle in sentencing terms, firstly, it may be necessary to establish general pool of rare capital cases. Once this general pool is established, a smaller pool of rare cases may have to established to compare and arrive at a finding of Rarest of rare case.

And finally, the Court acknowledges that even if death penalty itself is constitutional, the manner in which it is being administered currently may not be. After a survey of post-Bachan Singh judgments, this is what it says:

…it is now clear that even the balance-sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.

Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from the death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice (no executions for 10 years). Our own neighbours, Nepal and Bhutan are part of these abolitionist nations while others including Philippines and South Korea have also recently joined the abolitionist group, in law and in practice respectively. We are also aware that on 18 December 2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty.

India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up to date and informed discussion and debate on the subject.

How often do judges in the Supreme Court call for evidence-led policy making, rather than rely on their own instincting and anecdotal understanding of evidence? One only hopes that the Law Commission and the NHRC live up to this demand.