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.
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)