INTRODUCTION MEANING OF CAPITAL CAPITAL PUNISHMENT
According to the Oxford Dictionary, Capital Punishment is the legally authorized killing of someone as punishment for a crime. Capital Punishment is the death sentence awarded for capital offences like crimes involving multiple murders, repeated crimes, planned murder rape and murder, etc wherein the criminal provisions consider such persons as gross danger to the existence of the society and provide death punishment. Death penalty is a legal process where a person is put to death !y the state as a punishment for a crime. "he de!ate over the death penalty has in the recent past ac#uired renewed vigor. "he government of the day has !een insisting on the increased use of death penalty for crimes other than murder, particularly rape. Certain women$s groups have welcomed this. "he %udiciary too has !een awarding the death de ath penalty for violent crimes with increased regularity. &hen the designated court that tried the 'a%iv (andhi assassination case recommended death penalty to all the )* accused arraigned !efore it, it was time for the a!olitionists to once again ho ld a !anner of protest. Despite !eing party to the +nternational Covenant on Civil and Political 'ights +CCP'+CCP'that re#uires a progression towards a!olition of death penalty, +ndia appears to !e heading the other way. After tracing the %udicial decisions that upheld the co nstitutionality of the death penalty, and the evolution of the rarest of rare$ test in the landmark /achan 0ingh case, + propose to examine how the court in su!se#uent cases has applied that test. "he non1adherence to the mandatory procedural re#uirement of a presentencing h earing, the real possi!ility of the wrong person !eing convicted, the uncertainty of executive clemency, the domination of the de!ate !y retentionists since /achan 0ingh are some of the co ntexts in which it is proposed to examine exa mine the %usti2cation for retention of death penalty as a form of punishment. "he need to revisit the contention that death penalty is a cruel punishment is inspired !y two recent developments in the international sphere. "he first "he first is is the %udgment in 3445 of the 0outh African African Constitutional Court, declaring death penalty to !e a cruel and inhuman punishment and therefore unconstitutional. 3
"he second "he second is is the signing !y 3)6 countries of the statute creating the +nternational Criminal Court, which was re%ected the death pena lty as a punishment for genocide, crimes c rimes against humanity and war crimes. Finally, it Finally, it is perhaps apposite to recapture the spirit of non1violence that fosters reconciliation while not compromising on truth. "here is also a need to recognise the limitations of a %udicial system that may !e concerned conc erned only with what Al!ie 0achs calls the 7microscopic truth8. +t is never too late to realise the importance that a reformative theory of punishment has for lasting peace.
HISTORY OF CAPITAL PUNISHMENT OR DEAT DEATH H PENALT P ENALTY Y Capital punishment or death sentence has !een an accepted form of %ustice through the ages. (eography, culture and passing of time have varied its form, and the offences for which it has !een imposed, and its recipients. "he imposition of death penalty in +ndia appears to go !ack to ancient times. +n eras of epics and medieval history, the monarch of land was the head of the criminal %ustice system, who, sitting in his royal court, heard !oth sides of a case, !e it civil or criminal, dispensed %ustice, and awarded punishment or other dispensations !y royal decree. +nvaria!ly, +nvaria!ly, crimes against the crown drew a death sentence which was #uickly implemented !y !eheading. "he first death sentence historically recorded occurred in 3*th Century /C 9gypt, where the wrongdoer, a mem!er of the no!ility, was accused of magic, and ordered to take his own life. During this period, commoners were usually executed with the axe. +n the 3:th Century /C, the ;ittite Code also prescri!ed the death penalty. "he
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sentence that took place !efore the Christian era was a!out =44 /C when the (reek philosopher 0ocrates was re#uired to drink poison for the crime of heresy and corruption of youth. DEBATE OVER RETENTION AND ABOLITION OF DEATH PENALTY ARGUMENTS FOR RETENTION OF DEATH PENALTY
1. Capital Punishment acts as a deterrent- If the death sentence is removed, the fear that comes in the minds of the people committing murder will be removed. “Do we want more of murders in our country or do we want less of them?” 1 All sentences are awarded for the protection of the society, so that every individual lives in peace. apital punishment is necessary for this security. ! "he fear of being hanged prevents a person from committing heinous crimes which is a step forward in #eeping the nation safe. 2. Elimination of t! "#iminal$% Death Penalty is the only means of eliminating the
offender who puts pu!lic peace into danger !y committing certain dangerous forms of crime. = &. Po$$i'ilit( of #!)!at!* "#im!$% 0ociety must !e protected from the risk of a second offence !y a criminal who is not executed and may !e released. After release he may commit the same crime again.: +. Con*ition in In*ia% +n countries where capital punishment has !een a!olished, the figure of homicide is very low four in a million or even less than that. 5 +n +ndia the figure of homicide is huge and a!olishment of death penalty will further aggravate it.
3/y >ate 0hri (ovind/alla!h Pant, ?inister of ;ome Affairs, 'a%ya 0a!ha De!ate, )5th April 345@ )>ate 0hri Datar, ?inister of 0tate in the ?inistry of ;ome Affairs, 'a%ya 0a!ha De!ate, )5th April 345@ =.B. Pu!lication, page 54, paragraph )3* :Ceylon 'eport, 0ummary of arguments, page =4, under 7long term effects8 50mt. iolet Alva, 'a%ya 0a!ha De!ate,@th 0eptem!er 34*3, col. =@3< =
,. Sa-in of f/n*$% ?oney of citizens should not !e spent on maintaining people who
cause harm to them. "he tax payers should not !e called upon to pay for the maintenance of anti1social criminals for an indefinite or a very long period. 0. P#o)o#tionat! to "#im!% "he punishment should !ear a %ust proportion to crime. "hus capital punishment is the only fit punishment for those who have deli!erately violated the sanctity of human life. 1. No mi$"a##ia! of /$ti"!% +f there is miscarriage of %ustice in one or two cases, the higher courts can !e approached. "he whole machinery of the (overnment will !e there to protect the life of an innocent person. 3. It ma#4$ t! #!)#o'ation of $o"i!t(% Capital punishment marks the society$s detestation and a!horrence. Capital Punishment marks the detestation and a!horrence of the taking of life and its revulsion against the crime of crimes. +t is supported not !ecause of a desire for vengeance, !ut rather as the societys repro!ation to the grave crime of murder. * ARGUMENTS FOR ABOLITION OF DEATH PENALTY
1. Religious, moral and ethical values $ "he abolitionists point to the %fth commandment in support of their argument. &"hou shall not #ill& and to hrist's appeal in the (ermon on the )ount. &Do good to those who hate you.& In )ahabharata also, (atya#etu, Dyumatsena*s son was against apital +unishment. e protested against the mass scale e-ecutions ordered by his father and argued that destruction of human life can never be usti%ed on any ground. / 0ife is a precious gift of od. od, who gives the life, alone, has the right to ta#e it bac#. Any agency including the udiciary should not e-ecute this right. 2ather of the Indian 3ation$ )ahatma andhi also reiterated the same thing long bac#. &od alone can ta#e life. 4ecause, e alone gives it. Destruction of human life can never be a virtuous act.” 5
* >aw Commission of +ndiaE "hirty Fifth 'eportE Para 55E 34*<< ?aha!harataE 0hanti ParvaE Chapter CC>G++, erses1 :13= @ Hrishna +yer.I. 7 Death 0entence on Death 0entence8 "he +ndian AdvocateE Iournal of the /ar Associate of +ndiaE G+++ =: Ian1Iune ,34<@- 0ee also (ollanzE Capital Punishment the ;ea rt of the ?atterE p. 4 3455:
). Ca)ital P/ni$m!nt i$ 'a#'a#o/$% Capital Punishment is a cruelly callous investment !y unsure and unkempt society in punitive dehumanization and cowardly strategy !ased on the horrendous superstition that cold1!looded human sacrifice !y professional hangman engaged !y the state will propitiate the (oddess of Iustice to !less ?other 9arth with crimeless society.4 9xecution !rutalizes those involved in the process. =. Rit to lif! an* t! Stat!% 9very individual is entitled to have his rights and each individual has a responsi!ility to protect those rights for all others. >ife is a universal human right. "o put off such a right !y the 0tate diminishes the !asic concept of the dignity of the individual, and this dignity is an inaliena!le right. Article )3 of "he +ndian Constitution provides every citizen of the country with the right to life and personal li!erty. "he a!olitionists say that capital punishment is violative of this fundamental right and hence should !e a!olished. :. Ca)ital P/ni$m!nt i$ not a *!t!##!nt% 0tudies and researches show that it has !een concluded that ,J violent crime follows a curve that is a function of social and economic conditions and the evolution of the moral values of society at a given moment. +t is unaffected !y the existence or a!sence of Capital Punishment. +n other words the death penalty does not reduce crime, nor does its a!olition increase it.J 5. Ca)ital P/ni$m!nt #/l!$ o/t t! )o$$i'ilit( of #!fo#mation% 9very saint has a past and every sinner a future. Bever write off the man wearing the criminal attire !ut remove the dangerous degeneracy in him, restore retarded human potential !y holistic healing of his fevered, fatigued or frustrated inside and !y repairing the repressive, though hidden, in%ustice of the social order which is vicariously guilty of the criminal !ehavior of many innocent convicts. >aw must rise with life and %urisprudence responds to humanism.36
Con$tit/tional Vali*it( of Ca)ital P/ni$m!nt 0.=*< 5- of the Criminal Procedure Code, 3@4@, prior to its amendment in 3455, re#uired a court sentencing a person convicted of an offence punisha!le with death to a punishment other than death to state the reasons why it was not awarding death sentence. "he amendment deleted 4+!id 36 Hrishna +yer.I. 7 Death 0entence on Death 0entence8 "he +ndian AdvocateE Iournal of the /ar Associate of +ndiaE G+++ =: Ian1Iune ,34<@5
this provision !ut there was no indication in either the Cr.PC or the +ndian Penal Code, 3@*6 +PC- as to which cases called for life imprisonment and which the alternative K death penalty. "he >aw Commission of +ndia in 34*< undertook a study of death penalty and su!mitted its =5th 'eport to the government. +t %usti2ed its conclusion for retention of death penalty thusE33 ;aving regard to the conditions in +ndia, to the variety of social up!ringing of its inha!itants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present %uncture, +ndia cannot risk the experiment of a!olition of capital punishment.
5amoan Sin -. Stat! of U.P. +f the extinguishments of life through a %udicial sentence could !e !rought a!out !y the com!ination of a su!stantive and a procedural penal law, the first attack of the a!olitionist had to !e upon the validity of such a law. A Constitution /ench of the 0upreme Court repelled the initial challenge to the constitutionality of death penalt y as a form of punishment in Iagmohan 0ingh v. 0tate of .P3). On !ehalf those facing the death penalty it was contended that death sentence extinguishes all the freedoms guaranteed under article 34 3- a- to g- and was accordingly unreasona!le and not in pu!lic interest. Secondly, the discretion vested in %udges to award either of the two punishments was not !ased on any legislative policy or standard or constituted an a!dication !y the legislature of its essential function attracting the vice o f excessive delegation. Thirdly, the unguided sentencing discretion in %udges rendered it violative of article 3: since two persons found guilty of murder could !e treated differently K one sentenced to life the other to death. Fourthly, there was no procedure provided in the Cr.PC for determining which of the two punishments were to !e awarded. "he a!sence of a procedure esta!lished !y law under which life could !e extinguished resulted in a violation of article )3.
33 =5th 'eport of the >aw Commission of +ndia, p.=5:. 3) 34<=- 3 0CC )6 *
"he 2ve %udges refused to !e persuaded !y the decision of the .0. 0upreme Court in Furman v. Georgia13 declaring death penalty to !e in violation of the 9ighth Amendment, which for!ade cruel and unusual punishments. 9xpressing dou! ts a!out transplanting western experience the court felt that 7social conditions are different and so also the general intellectual level.83: +n coming to the conclusion that capital punishment was neither unreasona!le nor opposed to pu!lic interest, the court drew support from the =5th 'eport of the >aw Commission and the fact that on four occasions !etween 345* and 34*) !ills or resolutions ta!led in Parliament for a!olition of death penalty had !een re%ected. Begativing the argument of excessive delegation the court opinedE 7"he impossi!ility of laying down standards is at the very core of the criminal law as administered in +ndia wh ich invests the %udges with a very wide discretion in the matter of 2xing the degree of punishment. "he discretion... is lia!le to !e corrected !y superior courts.8 As regards the procedure, the accused could a lways ask to lead additional evidence and counsel could address the court on the #uestion of sentence. +t was held that deprivation of life was constitutionally permissi!le as it was imposed after a trial in accordance with procedure esta!lished !y law.
Ba"an Sin -. Stat! of P/na' "hree developments su!se#uent to the %udgment in Iagmohan prompted a renewed challenge in Bachan Singh v. State of Punja1! to the constitutional validity of the death penalty. "he Cr.PC was reenacted in 34<= and section =5: =- re#uired that the %udgment recording conviction for an offence punisha!le with death shall state special reasons for such sentence.3* "hus death sentence !ecame the exception and not the rule as far as punishment for murder was concerned. 3= == > 9d )d =:* 3: "id 35 34@6 )- 0CC *@:. 3* "he Ioint Committee of Parliament in its 'eport stated the o!%ect and reason of making the change, as followsE A sentence of death is the extreme penalty of law and it is !ut fair that when a court awards that sentence in a case where the alternative sentence of life imprisonment is also availa!le, it should give special reasons in support of the sentence.
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0econdly, the decision in #ane$a Gandhi v. %nion of "ndia1& , re#uired that every of law of punitive detention !oth in its procedural an d su!stantial aspects must past test of reasona!leness on a collective reading of articles )3, 34 and 3:. /ased on this interpretation, the 0upreme Court had in 'ajendra Prasad v. State of %.P .1( held that the special reasons necessary for imposing the death penalty must relate not to the crime !ut the criminal. +t could !e awarded only if the security of the state and society, pu!lic order and the interests of the general pu!lic compelled that course. &hen /achan 0ingh$s appeal came up for hearing in the 0upreme Court !efore a !ench of 0arkaria and Hailasam, II., the latter o!served that the %udgment of the ma%ority in 'a%endra Prasad ran counter to the %udgment in Iagmohan and hence re#uired reconsideration. "he third development was that +ndia had acceded to the +CCP' that came into force on Decem!er 3*, 34<*.34 /y ratifying the treaty, +ndia had committed itself to the progressive a!olition of death penalty. +n support of the 2rst lim! of the challenge, to the validity of s.=6) +PC, it was argued for the a!olitionists in /achan 0ingh thatE a- death penalty was irreversi!le and could ! e, given the falli!ility of the processes of law, in1 Licted upon innocent persons !- there was no convincing evidence that the death penalty served any penological purpose 1 its deterrence remained unproved, retri!ution was no longer an accepta!le end of punishment and reformation of the criminal and his reha!ilitation was the primary purpose of punishment 3< 34<@ )- 0C' *)3. 3@ 34<4- = 0CC *:*.
34 Article * )- +CCP'E +n countries which have not a!olished the death penalty, sentence of death may !e imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of (enocide. "his penalty can only !e carried out pursuant to a final %udgment rendered !y a competent court.
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c- execution !y whatever means for whatever the offence was a cruel, inhuman and degrading punishment. "he ma%ority of four %udges in /achan 0ingh negatived the challenge to the constitutionality of death penalty, af2rmed the decision in Iagmohan and overruled 'a%endra Prasad in so far as it sought to restrict the imposition of death penalty only to cases where the security of the state and society, pu!lic order and the interests of the general pu!lic we re threatened.)6 "he Court continued to draw support from the >aw Commission$s =5th 'eport. "he fact that there was, among rational persons, a deep division of opinion on this issue, was itself, according to the court, a ground for re%ecting the argument that retention of the penalty was totally devoid of reason and purpose. "he perceived ma%ority view supporting retention meant that death penalty as an alternative punishment was neither unreason1 a!le nor lacking in pu!lic interest. "he court re%ected the second lim! of the challenge to the validity of section =5: =- of Cr.PC on the ground that it permitted imposition of death penalty in an ar!itrary and whimsical manner. +t explained that the re#uirement under section )=5 )- for a pre1sentence hearing of the accused coupled with the re#uirement that the sentence of death had to !e con2rmed !y the ;igh Court under section =** )- of the Cr.PC, meant that errors in the exercise of the %udicial discretion could !e corrected !y the superior courts. Although the court was not inclined to lay down standards or norms for guiding the exercise of %udicial discretion, it accepted the suggestions of the amicus curiae)3 as to what could generally constitute aggravating and mitigating circumstances. "he court recorded the following possi!le aggravating circumstances suggested !y the amicus curiaeE a- murder committed after previous planning and involves extreme !rutality or )6 "he dissenting opinion of /hagwati. I, as he then was- is reported in /achan 0ingh v. 0tate ofPun%a! 34@)- = 0CC ):.
)3 Dr.M.0.Chitale, 0enior Advocate 4
!- murder involving exceptional depravity or c- murder of a mem!er of any of the armed forces or of any police force or of any pu!lic servant and committedE i- while such mem!er of pu!lic servant was on duty or ii- in conse#uence of anything done or attempted to !e done !y such mem!er or pu!lic servant in the lawful discharge of his duty Among the mitigating factors suggested !y the )micus *uriae wereE 3. An offence committed under the inLuence of extreme mental or emotional distur!ance. ). "he age of the accused. +f the accused was young or old, he was not to !e sentenced to death. =. "he pro!a!ility that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. :. "he pro!a!ility that the accused could !e reformed and reha!ilitated. "he state was to prove !y evidence that the accused did not satisfy the conditions =- and :- a!ove. 5. "he accused !elieved that he was morally %usti2ed in committing the offence. *. "he accused acted under the duress or domination of another person. <. "he accused was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. "he court termed these euphemistically as indicators$ and relevant circumstances$ attitude re#uired to !e accepted. +t, however, indicated that these were not exhaustive and that the court did not want to !e seen as fettering %udicial discretion in the matter of sentencing. "he concluding remarks in the ma%ority opinion marked the real shift in the %udicial attitude towards sentencing. +t also reLected the changing perceptions of the %udiciary inLuenced as it was !y ma%or strides in human rights %urisprudence. The majority said E 7A real and a!iding concern for the dignity of human life postulates resistance to taking a life through law$s
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instrumentality. "hat ought not to !e done save in the rarest of rare cases when the alternative option is un#uestiona!ly foreclosed.8
Ma""i Sin -. Stat! of P/na' +n ?achhi 0ingh v. 0tate of Pun%a!)) the Court summarised the propositions emanating from /achan 0ingh and spelt out the task for the sentencing %udge. +t saidE A !alance1sheet of aggravating and mitigating circumstances has to !e drawn up and in doing so the mitigating circumstances have to !e accorded full weightage and a %ust !alance has to !e struck !etween the aggravating and the mitigating circumstances !efore the option is exercised. "he Court then explained how it envisaged the guidelines would apply. "he #uestions that the sentencing Court had to ask wereE a- +s there something uncommon a!out the crime, which renders sentence of imprisonment for life inade#uate and calls for a death sentenceN !- Are the circumstances of the crime such that there is no alternative !ut to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offenderN "hus !oth in Iagmohan and /achan 0ingh, the Court !owed to legislative wisdom and shrank away from striking down the death penalty. /ut the similarity in the two decisions ended there. "he change !rought a!out !y /achan 0ingh, as explained !y ?achhi 0ingh, was signi2cant. "here was an af2rmation that death penalty was the exception and not the rule. "here was an af2rmation that death penalty was the exception and not the rule. "he formulation of the rarest of rare test, credited craftily !y the court, still shy of !eing accused of legislating, to the amicus curiae who assisted it, acknowledgment of reformation and reha!ilitation of the delin#uent as one goal of punishment. +t cannot !e gainsaid that the rate of imposition of death penalty would de2nitely have !een higher !ut for /achan 0ingh. +n retrospect, /achan 0ingh was neither a small nor insigni2cant achievement for the a !olitionists.
)) 34@=- = 0CC :<6 33
/achan 0ingh also showed a!olitionists that the challenge to the constitutionality of the death penalty was not a one1time exercise and had to !e revived at regular intervals. Perhaps taking a cue, the challenge was renewed, al!eit unsuccessfully, in Shashi +ayar v. %nion of "ndia.)= "he petitioner re#uested reconsideration of Iagmohan and /achan 0ingh on the ground that !oth those decisions were !ased on the 34*< report of the >aw Commission which did not reLect current reality. ;owever, the court was unmoved. +t took 7%udicial notice of the fact that the law and order situation in the country has not only not improved since 34*< !ut has deteriorated over the years and is fast worsening today8.): +t was 2rm that 7the present is, therefore, the most inopportune time to reconsider the law on the su!%ect8. +t perhaps this continuing perception of a real link !etween rising crime rate the severity of the punishment, the former %ustifying the latter, that is the real stum!ling !lock in the re1examination of the necessity for retention.
A))l(in t! T!$t of 6Ra#!$t of Ra#!7 ?achhi 0ingh re#uires the trying court to draw up a !alance sheet of the aggravating and mitigating circumstances and opt for the maximum penalty onl y if even after giving the maximum weightage the mitigating circumstances, there is no alternative !ut to impose death sentence. ;owever on an analysis of the decisions handed down !y the 0upreme Court since /achan 0ingh, it appears that the exercise of !alancing the aggravating and mitigating circumstances is rarely performed.)5 "he reasons afforded !y the court for either con2rming death sentence or commuting it appear to invaria!ly turn on the nature of the crime or on the role )= 344)- 3 0CC 4*. "he petitioner$s hus!and was convicted for the murder of his father and step!rother. "he petition was filed after his mercy petitions had !een re%ected first !y the President of +ndia and then !y the (overnor of Iammu and Hashmir. ): "id )5 A nota!le exception is the decision in )nshad v. State of arnata$a 344:- : 0CC =@3 where the 0upreme Court commuted the death sentence awarded to three persons !y the ;igh Court on a reversal of ac#uittal. "he 0upreme Court held that the reasons given !y the ;igh Court without !alancing the aggravating and mitigating circumstances were not special reasons$ contemplated !y law. 3)
of the offender in the crime. "he !ackground of the offender and the possi!ility of his reformation or reha!ilitation is seldom accounted for .)*
Di$)!n$a'ilit( a$ a S)!"ial R!a$on uljeet Singh v. %nion of "ndia-& was a decision rendered in a writ petition !y the accused 'anga and /illa after the 0upreme Court dismissed their special leave petitions. "hey were sentenced to death for killing a teenaged girl and her younger !rother after giving them a lift in their stolen car while moving in the roads of Delhi. "he court found that the death of the children was as a result of 7savage planning8 which !ore a professional stamp. +t saidE 7"he survival of an orderly society demands the extinction of the life of persons like 'anga and /illa who are a menace to social order and security8.)@ +n another instance, the 0upreme Court was dismayed that the sentencing court had adopted a not too serious approach in deciding whether the accused deserved to die. "he 0essions Iudge had o!served in his order that 7the accused has committed a terri2c dou!le murder and so no sympathy can !e shown to him8.)4 "he 0upreme Court disapproved of this and saidE=6 "he reasons given !y the learned 0essions Iudge for imposing the death sentence are not special reasons within the meaning of s. =5:=-.... and we are not sure whether, if he was cognizant of his high responsi!ility under that provision, he would have necessarily imposed the death sentence.
)* "he cases that follow are only illustrative )< 34@3- = 0CC =): )@ A su!se#uent petition #uestioning the re%ection of their mercy petition ! y the President was also dismissedE Hul%it 0ingh v. >t.(overnor of Delhi 34@)- 3 0CC :3<. )4 #uniaan v. State of Tamil +adu 34@3- = 0CC 33 at 35. =6 3=
Pa#*on T!m8 Not Han T!m "he decisions where death sentences have !een commuted do not appear to !e !ased on any set pattern of sentencing. "his deprives the dec isions of real precedential value and necessitates formulating arguments for mitigation of sentence not on the !asis of past practice !ut restricted to the facts of a case. +n Panchhi v. State of %.P .,=3 four mem!ers of the family of the accused !ecame killers of four mem!ers of another family conse#uent upon a long history of #uarrels. "he accused made )< attacks with axes and daranti on the deceased. "he three surviving accused included a septuagenarian, a youth in his prime age and a mother who had given !irth to a child even while undergoing the sentence. "he death sentence awarded !y the trial court was con2rmed !y the ;igh Court. "he 0upreme Court commuted the sentence for all the three statingE 7Bo dou!t !rutality looms large in the murders in this case particularly of the old and also the tender age child. +t may !e that the manner in which the killings were perpetrated may not !y itself show any lighter side !ut that is not very peculiar or very special in these killings. /rutality of the manner in which a murder was perpetrated may !e a ground !ut not the sole criterion for %udging whether the case is one of the rarest of rare cases$.8 Apart from mentioning that a thirst for retaliation was a possi!le motive for the crime, the Court was totally silent on what mitigating factors had weighed with it.=) +n 'aja 'am /adav v. State of Bihar 33 where six murders had !een committed in a cold dia!olical manner, the court commuted the sentence on the accused to life imprisonment on account of the special fact that the sole eye1 witness to the crime was a child aged 4 years. "his was an instance where the court did not travel outside the record to seek factors that would weigh =3 344@- < 0CC 3<< =) "he case attracted wide attention since one of those on death row was a woman with a suckling child. 0ignificantly, the 0upreme Court re%ected the plea of the Bational Commission for &omen for intervening in the case 7for the o!vious reason that under the Code of Criminal Procedure, the Bational Commission for &omen or any other organisation cannot have locus standi in this murder case8. 0upra note =@ at 3@6. == 344*- 4 0CC )@< 3:
with it for a decision on the appropriate sentence. An internal weakness$ in the evidence has suf2cient for mitigation of sentence, although not for the purposes of returning a 2nding of innocence. +n ?a%or '.S.Budh0ar v. %nion of "ndia3 the carrying out of two murders !y su!ordinate army personnel under orders of the superior of2cers was seen as not falling under the rarest of rare$ category. "he court pointed out that the accused had acted under dictation, surrendered within two days of the commission of the offence and had spoken the truth in the form of confessions that helped !ring the superiors to !ook. ;owever in 0hankar v. 0tate of "amil Badu=5 the confessions !y the accused which led to the solving of the crime, did not help mitigate the death sentence awarded to them. +n ishori v. State of 2elhi,=* the appellant was the mem!er of a riotous mo! that went on a rampage in Delhi following the assassination of prime1 minister +ndira (andhi on Octo!er =3, 34@:. "housands of 0ikhs were done to death. "he appellant was charged with having committed the murder three named and several other unnamed 0ikhs. "he 0upreme Court commuted the death sentence. "he factors that weighed with the court were that the appellant had !een initially convicted in seven cases !ut on appeal had !een ac#uitted in four of them. "herefore it could not !e said that he was a hard1!oiled criminal. Bone of the witnesses had stated that the appellant was a leader of the mo! or that he exhorted its mem!ers to do any particular act. +t further ela!orated that 7the acts of the mo! of which the appellant was a mem!er cannot !e stated to !e the result of any organisation or any group indulging in violent activities formed with any purpose or scheme so as to call an organised activity. +n that sense, we may say that the acts of the mo! of which the appellant was a mem!er was only the result of a temporary frenzy8.
=: 344*- 4 0CC 56) =5 344:- : 0CC :<@. Despite the principal accused giving copious details of the police officers who aided him in his !usiness of illicit li#uor and prostitution, the court was not inclined to direct the government to take action against the named officers even while it relied on that very confession to find him and his !rother guilty and sentence them to death. =* 3444- 3 0CC 3:@ 35
+n 'onny v. State of #aharashtra3& the three appellants were sentenced to death for the rape and murder of married woman of :5 years who was a mother of two children as well as that of her hus!and and son aged 3< years. +n commuting the death sentences awarded to them the court took into account that one of the perpetrators crime, which also involved ro!!ery, was a #uali2ed civil engineer, married, having a son aged : years and parents living at the 0piritual >ife Centre, Barsapur for three decades. ;e was also the nephew of the woman who was raped and murdered. Another had !een awarded titles, 7"haneshri8 and 7asaishri8, for !ody!uilding. ;is was a love marriage against the wishes of ! oth their parents and there was no!ody to look after their two daughters and two sons. "he third accused had a sick father and no adverse antecedents. "he court held that offences could not !e said to have !een committed under the inLuence of extreme mental or emotional distur!ance. "he possi!ility of reform and reha!ilitation could not !e ruled out. From the facts and circumstances it was not possi!le to predict as to which among the three played which part. +t was not possi!le to say whose case fell within the rarest of rare cases. "he designated court that tried the 'a%iv (andhi assassination case, found all the twenty1 six arraigned !efore it to !e guilty of, inter alia, committing terrorist acts as de2ned !y Terrorist and 2isrutive )ctivities Prevention4 )ct, 15(& T)2)4.3( "he court then recommended that each of the twenty1six persons !e sentenced to death. A perusal of the %udgment reveals that the %udge did not give individual reasons for each of the accused !ut gave seven special reasons$ for all of them. "here was a!solutely no mention of any !alancing of aggravating and mitigating circumstances for each of the accused.=4 0ome of those Secial 'easons wereE:6 =< 344@- = 0CC *)5
=@ 0.= 3- "ADA defines a terrorist act as an act done with an intent to i- overawe the government or ii- to strike terror in people or iii- to alienate any section of the people or iv- to adversely affect the harmony amongst different sections of the people. =4 Among the accused were five women. Four !elonged to one family and there were three couples.One other accused was a seventy1six year old man whose granddaughter was also an accused in the same case.
:6 nreported %udgment dated Ianuary )@, 344@ of Iudge Bavaneetham, at 3*)51)*.
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3. 'a%iv (andhi, the former Prime ?inister of +ndia was !rutally assassinated in pursuance of dia!olical plot carefully conceived and executed !y a highly organised foreign terrorist organisation, the >""9, operating from a closed preserve cut off from the rest of the world. ). 0ixteen innocent lives were lost and many sustained grievoussimple in%uries in the gruesome, inhuman, uncivilized and merciless !om! !last !y an >""9 woman human !om! which was successfully executed with the active help, assistance and participation of accused who are >""9 militants or its staunch supporters. =. Bine police of2cers involving a 0uperintendent of Police, who were pu!lic servants and were on security duty at 0riperum!udur lost their lives while on duty, in this most heinous and gruesome crime perpetrated as a result of a pre1planned and premeditated conspiracy. :. "he !rutal killings of 'a%iv (andhi !rought the +ndian democratic process to a grinding halt in as much as the general election to the >ok 0a!ha and assem!lies in some 0tates had to !e postponed. 0uch was the impact and after effect of the killing of 'a%iv (andhi. 5. "he victims were not in a position to protect themselves from the human !om! as the terrorists intelligently and ingeniously used Dhanu as a human !om!. *. For killing 'a%iv (andhi and others, some of the accused in2ltrated into +ndia, clandestinely and with the full support and participation of other accused who are local "amils, this heinous crime was committed !y the >""9 militants. <. (iving deterrent punishment alone can deter other potential offenders and in future dissuade our people from associating with any terrorist organisation to do such dia!olical and heinous crimes. +n the 0upreme Court, nineteen of the twenty1six were found to !e innocent of the offence of murder and all of them of any "ADA offence. Of the seven that were found guilty of the murder charge, four including a woman Balini, were sentenced to death. Of the three %udges, who wrote separate opinions, "homas, I., felt that Balini did not d eserve the maximum penalty. "he reasons that weighed with him were tha t she was an elderly and educated woman she was
3<
led into the conspiracy !y playing on her feminine sentiments she played no dominating role she was persistently !rainwashed !y A1= ?urugan- who !ecame her hus!and and then the father of her child she was made to !elieve in the virtue of offering her help to the task undertaken !y the conspirators. Another consideration was that she was the mother of a little female child who had to !e saved from orphan1hood.:3 ;owever, the other two %udges, 6adh0a, 7. and 8uadri, 7. were of the view that Balini did not deserve any leniency and the 2nal order was that she too !e sentenced to death.:) &hile "homas I. dwelt on the mitigating circumstances for Balini neither he nor the other %udges considered those that would !e relevant for the other accused !eing awarded the death sentence. Adopting the pattern followed !y the trial court, they only recounted the aggravating circumstances emanating from the crime itself. "he upshot of the discussion on the application of the rarest of rare test is that there is no consistent or relia!le pattern under which %udges will exercise their discretion. "he gnawing uneasiness that the same case if heard !y a different set of %udges may have resulted in a different punishment will always rankle in the minds of those successful death row convicts facing the noose. One sure safeguard is the strict adherence to the pre1sentence hearing re#uirement. An examination of the track record of the %udiciary in this area is not very encouraging.
:3 0tate v. Balini 3444 =- 0CA>9 ):3 at =6<. :) +n 9..Sa:ena v. State of %.P . 34@=- : 0CC *:5 it was held that when one out of two %udges of the ;igh Court in appeal differ on the point of guilt, the death sentence cannot !e restored. &hile it will !e interesting to see if this helps Balini in her review petition now pending consideration !efore the 0upreme Court, this is perhaps the first known instance of a death sentence on a woman !eing confirmed and there !eing a dissenting opinion over it. "he earlier instances of ;ichhama 2evi infra n.4=- and 'am Shri sura n.=4 - resulted in commuted sentences. 3@
CONCLUSION +t is rima facie evident from the a!ove legal arguments that capital punishment is a resort of the last resort. +t should !e imposed only in exceptional circumstances strictly adhering the guidelines of the 0upreme Court of +ndia through su!se#uent %udgments discussed a!ove. "he guilt of the accused should !e proved !eyond reasona!le dou!t and even in such cases, the prosecutor must strongly esta!lish, !ased on pristine evidence that the offender is a potential threat to the society. "he Iudiciary in its wisdom and discretion must incline towards a reformative and sympathetic approach towards criminals, !ut at the same time not allow any hindrance or impediment in the administration of %ustice.
"Each extreme is a vice virt!e ies i# the mi$$e" % Arist&te
"o sum it up in the words of Fai'S'Narima#, a senior 0upreme Court Advocate, 7+t is time for +ndia to take consideration of the +nternational hue and
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cry which has !een going on and take a humane step towards mankind and his existence with dignity.8
BIBLIOGRAPHY Boo4$ #!f!##!*9
3. 'atanlal Dhira%lals the +ndian Penal Code Act G> of 3@*6- ,=3st ed., reprint, enl. ed. on a wider format !y M.. Chandrachud ). Administration of Criminal Iustice E "he Correctional 0ervices E
9dited !y B.H.
Chakra!arti, Deep, 344<, 33)= p, 5 ols, +0/B E @31<3661@<=14 Di"tiona#( #!f!##!*9
3. (arner, /ryan A. 9d., /lack$s >aw Dictionary, 0eventh 9dition 3444-, &est (roup, 0t. Paul ). 'utherford, >eslie /one, 0., 9ds., Os!orn$s Concise >aw Dictionary, 9ighth 9dition 'ep. )66=-, niversal >aw Pu!lishing Co. Pvt. >td., Bew Delhi :EBLIOGRAPHY
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3. www.indiankanoon.com ). www.lawcommissionofindia.nic.in =. www.indialawyers.wordpress.com
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