Supreme Court’s latest judgment on death penalty: A critique

Supreme Court’s recent judgment in Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (hereafter referred to as Ajitsingh) deserves a close study by all those concerned about the award of death penalty in India. There can be no doubt that one would be horrified by the brutality of the murders found to have been committed by the appellant in this case.  It is difficult to disagree with the Bench that circumstantial evidence is overwhelmingly against the appellant.

There are certain flaws in the judgment which are also the flaws of  many judgments which the Bench has cited. There are exactly 32 precedents which the Bench cited and all of them are in defence of the Bench’s argument that the most heinous and barbaric murders are also invariably the rarest of rare cases which call for imposition of death penalty.

Rightly and most expectedly, the Bench began with the Supreme Court’s judgment in the Bachan Singh case and cited the crucial sentence in Paragraph 58:

“For persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

It is curious that the Bench has emphasised the first part of the last sentence, whereas the second part of that sentence qualifies the first part. Because of this flawed emphasis, the jurisprudence on death penalty suffered for lack of clarity and consistency since 1980, and it continues to suffer so to date. Supreme Court  pointed this out in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009). Unfortunately, Bariyar does not find a mention in Ajitsingh

Other cases which have been conveniently left out in this selective survey are Mulla v State of U.P. and Swami Shraddhananda which apply the law and precedents correctly.

In Bariyar, the Court noted that the mitigating circumstances listed in and endorsed by Bachan Singh give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the Court awarded a death sentence.

In Paragraph 96 of Ajitsingh, the Court did not even refer to this State’s responsibility to prove that the appellant could not be reformed or rehabilitated. Instead, the Bench has substituted this requirement with the opinion that a person like the appellant who, instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner, could not be reformed or rehabilitated. Can a Judge’s personal opinion replace the need for evidence when the alternative option is unquestionably foreclosed?

In Ajitsingh, the Court has  relied on Machhi Singh (1983) and Mohd. Mannan v. State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court have drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction.

The paragraphs which the Bench has cited from Mohd.Mannan in Paragraph 99 clearly suggest that it ought to have further enquired and believed that the accused condemned could not be reformed or rehabilitated and would continue with the criminal acts. There is nothing to suggest in the judgment that the Bench did this exercise. It needs to be asked whether the question was put to the prosecution during the hearing, and what was the response.

In Paragraph 99, the Bench has admitted that the expression ‘rarest of the rare cases’ cannot, of course, be defined with complete exactitude. I disagree, with due respect. It ought to be defined exactly; otherwise, we will be unjustly taking away the life of a convict. The broad guidelines, explained by various decisions of the Court, are not exhaustive, and sometimes confusing, with conflicting judgments.

As a matter of routine exercise, the Bench has cited the Law Commission’s 35th Report in Paragraph 55. What does it say? It has concluded that deterrence object of capital punishment is achieved in a fair measure in India, on the basis of its opinion survey conducted several years ago. Instead of opinions, what we require is hard data. I wish the court has gone into such hard data, to find out, whether the capital punishment has achieved the deterrence objective over the years. The Law Commission, in that report, actually said we needed studies extending over a long period of years to know the conduct of prisoners released from jail. It was also doubtful whether any other punishment could possess all the advantages of capital punishment, and whether statistics of other countries, as to the deterrence aspect, were conclusive. A report which has expressed doubts about its own findings cannot be the basis for capital punishment.

Supreme Court has the power to commission data and studies as well, where no hard data is available. It is inexplicable why  successive Benches of the Supreme Court confirming death penalty have not thought it necessary to do so.

Lastly, the Bench claims in Paragraph 101 that it is only the legislature which can abolish the death penalty and not the courts. I wonder how the Supreme Court declared Section 303 IPC unconstitutional in Mithu v State of Punjab. The Court certainly has the power to abolish, but it has chosen not to do so for other reasons.

(I thank Bikram Jeet Batra for making helpful suggestions on an earlier draft of this post. I also thank Vikram, Arun, Tarunabh and Nick for their encouraging response to the previous draft which I had circulated)

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  • Two additional points:

    1. In Santosh Kumar Bariyar, Sinha CJ enunciated the principle of prudence (Paras 159 and 181) which, taking from Bachan Singh, requires that in those cases where, in the past, similar factual circumstances have led to differing sentences (death and life) the Court should, as a matter of prudence, refrain from awarding the death penalty. The idea is, of course, to mitigate the rigors of arbitrary sentencing. It is disappointing to note that since Bariyar the doctrine seems to have entirely disappeared from the Supreme Court's death penalty lexicon, and it not mentioned here either.

    2. The Court mentions the 35th Law Commission Report, but it seems very strange that it ignores – entirely – the 187th Law Commission Report which (if I remember correctly – so this is subject to correction) comes to the opposite conclusion about the death penalty. With respect, I would suggest that such selective quoting is not an entirely palatable component of judicial reasoning.

  • The court said that it is helpless because the death penalty rule still exists in the statute book and so long as it is there, it has to use it. I did not understand how the court felt bound by a provision which gives a wide scope for the exercise of discretion. In a country like ours which does not have a sentencing policy, merely clinging on to the 'rarest of rare' test and blaming the legislature for not taking away the section shows a lack of resoluteness. Judgments based on this approach are not judgments but what Paton calls an 'escape from the agony of decision-making'. It is a clear case of lack of human rights sensitivity that unfortunately runs through the system from the local hawaldar to the supreme court judge.

  • Very well written piece. Appreciate and concur with almost all the arguments in it.

    However, with respect to your last point, I feel compelled to point out the that your comparison with Section 303 may not be apt as well as argue that the SC may not abolish the death penalty wholesale. The SC had, in Mithu v. State of Punjab, noted that Section 303 was unconstitutional primarily because "a standardised mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case".

    However, in the present scenario, judges have enough latitude to consider the facts and circumstances of each case to decide whether a case falls within the 'rarest of rare cases'.

    Further, in Mithu v. State of Punjab, the SC had held that to award a mandatory sentence of death because the offender was already serving a life sentence – irrespective of which offence had earlier earned him the life sentence – was "arbitrary beyond the bounds of all reason".

    Can we truly say that the application of the doctrine of 'rarest of rare cases' has been arbitrary beyond the bounds of all reason. I frankly do not think so. Arbitrary, maybe. Beyond bounds of all reason – definitely no.

    Agreed the SC has noted that the courts are not bound to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. It has also noted that it is for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just, and reasonable. But clearly, in this case itself, the SC feels it is perfectly alright to impose the death penalty. The SC is wrong to make it sound like it has no option but to exercise the death penalty in some cases. But it clear that the judges wish to impose death penalty is some cases.

    Further, in Mithu v. State of Punjab, the SC had held that the imposition of death penalty in a particular scenario was unconstitutional. To extend that argument to hold that the SC can abolish the death penalty per se is, perhaps, fanciful. The Supreme Court can – and should – lay down clearer rules about what constitutes 'rarest of rare cases'. It can narrow down the scope of 'rarest of rare cases' even further. It can even refuse to impose the death penalty in any case. However, it clearly appears it does not have the maturity yet to do so.

    Any attempt by the SC to completely abolish the death penalty is, in my opinion, far beyond its purview. That is the sole prerogative of the Legislature, as the Constitution permits the right to life to be subject to certain restrictions. As Justice SriKrishna recently argued in an interview with, the SC ought not to be over-activist and usurp legislative prerogatives. Therefore, the SC was right to state that it is only the legislature that can abolish the death penalty.

  • As a layman, I find the socalled Human rights activists argument about "reformation" and "rehabilitation" as rather a seminar circuit argument without any practical issue being considered.If a murderer is to be convicted for rarest of rare cases, how the Apex court will find out before sentencing that he is fit for reform and rehabilitation by placing him in a correctional institution. How much time this will take etc? The guys in Gitmo who are released have gone back to Jihad and even leading it as they believe in a type of Wahabi Islam which condones killing unbelievers or even Shias and Ahmediyas.They guy who killed Salman Taseer in Pakistan is a hero to these people as also people like Afzal Guru, Bullar or the LTTE killers.Same is the case with rapists who are habitual offenders.
    the only criteria which the court should look into is whether this guy will kill again.

  • Dear Kranti Vanga,
    Thanks for the insightful comments. My response to this is to ask whether in Bachan Singh, the Court refused the plea of the petitioner on the ground that it had no such power, and the only the Legislature could do it. It held that death penatly is not unconstitutional. That is different from saying they are helpless, and only the Legislature can abolish it.

    The other answer is the ROR doctrine, according to the Ajitsingh is incapable of precise definition. Why can't the court declare a moratorium on d.p. till it evolves a precise definition? Read Justice Sathasivam's latest judgments on the Judgments Page, which commutes a death sentence. Clearly it depends on the Judge who hears the case. Therefore, how can we make death penalty susceptible to the whims and fancies of a Judge?


    There is usually a time gap of two years or more between the trial court judgment and the Supreme Court judgment when the convict's propensity for reform and rehabilitation could be judged. Habitual offenders can be easily distinguished by ascertaining whether it is the first time offence or not, and whether the convict was under psychological pressure to commit the crime etc.

  • Dear V. Venkatesan,

    Don't get me wrong. As I stated at the beginning of my earlier comment, I completely agree with most of your points.

    I agree that the SC should not state that it is helpless because it is far from it. I agree that the SC should stop awarding the death penalty; just because the law permits the award of a death penalty, the court is not bound to award the same.

    But the question I was wondering about was whether the SC can truly abolish the death penalty. Not whether the SC says it can, but can it truly. I believe it cannot and should not attempt to so. To attempt to do so would amount to impinging on the legislative domain to an unacceptable extent. Article 21 itself permits the right to life to be taken away, and therefore, you need the legislature to step in and abolish the death penalty. Unlike in other instances, no amount of creative interpretation can, I believe, sufficiently prop up the argument that the death penalty is unconstitutional.

    What the SC judges can – and should – do is refrain from awarding the death penalty. But it appears that they wish to continue applying it in some cases, and are using faulty reasoning to support it, as you pointed out in your article. And that is truly regrettable.

  • Wonderful, This is again the avoidable helpless situation expressed by the Supreme Court. It certainly has the powers and rightly pointed in Mithun's case it has itself said so. I hope the judiciary would be more sensitive.