Rarest of Rare Doctrine.docx

Rar estofRar eDoct r i ne:Deat h Penal t y December 7, 2014 by admin Leave a Comment

By Satya Vrat Yadav, UPES Editors Note Editors Note:: The paper attempts to evaluate the rarest of rare doctrine which has een evolved y the Supreme !ourt for awardin" death penalty# penalty# $t see%s to hi"hli"ht the curr current ent methods of e& e&ecution ecution in the li"ht of international perspective#

I nt r oduct i on $ndian 'udiciary has pointed out their view re"ardin" death penalty y rulin" out in Bacchan sin"h vs state of Pun'a(i) Pun'a(i) that  that the death penalty must e restricted to the *rarest of rare+ cases, this view of  Supr Su prem eme e !o !our urtt wa was s ve very ry mu much ch fa favo vori rin" n" to mi mini nimi mie e th the e us use e of  capi ca pita tall pu puni nish shme ment nt to pe pena nali lie e th the e cr crim imin inal als, s, u utt th this is vi view ew of  hi"hest court was contradicted y the le"islation y increasin" the numer of crimes for which capital punishment is awarded# $n Bachan sin"h case Supreme !ourt e&pressed some outstandin" reasons relatin" wron"doin" and criminal in which -sections ./. at pa"e 012 of the 'ud"ment3# $n section ./1, Bacchan Sin"h further note no ted: d: *4 *4#i #in n se sett ttli lin" n" th the e le leve vell of di disc scip ipli line ne or se sett ttli lin" n" on th the e decisi dec ision on of sen senten tence ce for di5 di5er erent ent o5 o5ens enses, es, inc includ ludin" in" on one e und under er Section 167 of (the) Penal !ode, the court ou"ht not ind its thou"ht *chie8y+ or 'ust to the circumstances associated with the speci9c wron"doin", additionally "ive due attention to the circumstances of  the criminal+(ii) criminal+(ii) #  # $n Santosh umar Bariyar vs State of ;aharashtra(iii) ;aharashtra(iii),, the Supreme !ourt "ot an opportunity to e&plain this further: *The rarest of rare dict di ctum um se serv rves es as a "u "uid idel elin ine e in en enfo forrci cin" n" Se Sect ctio ion n 1< 1<==-13 13 an and d entrenches the policy that life imprisonment is the rule and death punishment is an e&ception# $t is a settled law of interpretation that e&ceptions are to e construed narrowly# That ein" the case, the rarest of rare dictum places an e&traor e&traordinary dinary urden on the court, in case it selects death penalty as the favoured penalty, to carry out an o'ective assessment of facts to satisfy the e&ceptions in"rained in the rarest of rare dictum#+ !onsti !ons titu tutio tion n cl clea earl rly y st stat ates es in >r >rtic ticle le 7. th that at no pe pers rson on sh shal alll e deprived of ?i"ht to life unless done followin" due process of law

ut !apital punishment denies due process of law# $ts imposition is always irrevocale @ forever deprivin" an individual of the opportunity to ene9t from new evidence or new laws that mi"ht warrant the reversal of a conviction, or the settin" aside of a death sentence# Ahen the conseuences are life and death, we need to demand the same standard for our system of 'ustice as we would for our airlines# $t is central pillars of our criminal 'ustice system that it is etter that many "uilty people "o free than that one innocent should su5er# Cet us re8ect to ensure that we are ein" 'ust# Cet us pause to e certain we do not %ill a sin"le innocent person# This is really not too much to as% for a civilied society#+ Since the reinstatement of the modern death penalty, many people have een freed from death row ecause they were  Therefore throu"h liti"ation, le"islation and commutation y helpin" to foster a renewed pulic outcry a"ainst this ararous and rutaliin" institution, we strive to prevent e&ecutions and see% the aolishment of !apital punishment# $n addition to the si& cases which Bariyar faulted for havin" followed ?av'iDs wron" precedent, it identi9ed another case where the commutation of the death sentence is 'usti9ed# The case is Saianna vs State of arnata%a(iv) -766<3# Saianna was a life convict# Ahile on parole, he %illed his wife and dau"hter# The Supreme !ourt sentenced him to death on a reasonin" which e5ectively made death punishment mandatory for the cate"ory of  o5enders servin" life sentence# owever, the Supreme !ourt had in ;ithu vs State of Pun'a(v) -.F213 already struc% down Section 161 of the $ndian Penal !ode, which provided for mandatory death punishment for o5enders servin" life sentence# The reason is that if the death sentence is mandatory, then it is meanin"less to hear the convict on the uestion of sentence, and it ecomes super8uous to state the reasons for imposin" the sentence of death# The ratio Gecidendi -the le"al principle which forms the asis of the 'ud"ment3 of  Bacchan Sin"h is that the death sentence is constitutional if it is prescried as an alternative for the o5ence of murder and if the normal sentence prescried y law for murder is imprisonment for life# $n Bacchan Sin"h, the court also insisted that a court could impose the death penalty only in the rarest of rare cases when the alternative option is unuestionaly foreclosed# -The ratio Gecidendi of a 9veH'ud"e Bench would e indin" on other Benches of the Supreme !ourt, unless overruled y a Bench comprisin" more than 9ve 'ud"es# Bachan Sin"h was delivered y a 9veH'ud"e !onstitution Bench#3

$n Saianna, the court was doutful whether a person already under"oin" imprisonment for life could e visited with another term of imprisonment for life to run consecutively with the previous one# ?ather than resolve this dout throu"h constitutional means, the Supreme !ourt opted for the easy way out y imposin" the death penalty on Saianna# $n Bariyar, therefore, the Supreme !ourt declared its own rulin" in Saianna as ein" inconsistent with oth the ;ithu and Bachan Sin"h 'ud"ments and, as a result, per incuriam# If the .1 convicts who have een identi9ed in the 'ud"esD appeal, BantuDs death sentence was commuted y President Pratiha Patil in June this year# >nother convict, >n%ush ;aruti Shinde, has een declared a 'uvenile and has een removed from death row# Gayanidhi BisoiDs death sentence was commuted to life imprisonment y the Kovernor of Idisha in 7661# President Pratiha Patil commuted the death sentences of Sattan and Upendra in July 76..#  Thus, there are now only ei"ht convicts whose death sentences ou"ht to e commuted in line with the Supreme !ourtDs 'ud"ment in Bariyar# If these, only SaiannaDs mercy petition was pendin" in the PresidentDs Secretariat when Pratiha Patil completed her term# $t is ine&plicale why the ;inistry of ome >5airs did not recommend the commutation of SaiannaDs death sentence even thou"h his case was rou"ht to the notice of the President more than a year a"o# Koin" y Pratiha PatilDs illustrious record in commutin" the death sentence of 1< convicts in 'ust two and a half years of her 9veHyear tenure, she mi"ht have commuted SaiannaDs sentence, too, had the "overnment recommended it#  The mercy petitions of the remainin" seven convicts have not yet reached the President# ;ost of them have "ot their mercy petitions re'ected y the Kovernors of the States where they are lod"ed in  'ails awaitin" e&ecution# Ahen Pratiha Patil completed her term on  July 7=, she left a fascinatin" record and a le"acy that none of her successors can i"nore easily# She e"an with a ac%lo" of 71 undecided mercy petitions from her immediate predecessors and received nine fresh petitions, involvin" =6 convicts# If these, she accepted .2 petitions -involvin" 1< convicts3, re'ected three -involvin" 9ve convicts3, and passed on .. undecided petitions -involvin" ./ convicts3 to her successor, Prana ;u%her'ee# Ine of  the 1< convicts whose sentences she commuted on June 7 this year, Bandu Baurao Tida%e had died on Ictoer .2, 7660, while waitin" for her decision, ut the report aout his death apparently did not reach the ome ;inistry when it recommended his commutation# $t is a moot uestion whether Tida%e would have lived lon"er had the President commuted his sentence efore his death# But Pratiha PatilDs le"acy should not e 'ust seen in uantitative terms# $t also has a ualitative dimension# The ome ;inistry had

often chan"ed its recommendations with re"ard to the re'ection of  mercy petitions whenever there was a chan"e of ;inister with a new "overnment or with a !ainet reshuLe, and a"reed to a review of  the pendin" recommendations with the President# $f one ome ;inister recommends the re'ection of the mercy petition of a convict, it does not follow that his successor would recommend re'ection, if reconsidered# Ce"ally, the President is ound y the advice of the current "overnment and not the one precedin" it# Therefore, it can e inferred that she thou"ht it 9t to delay decisions on those mercy petitions which the "overnment wanted her to re'ect# She perhaps thou"ht that if successive ome ;inisters had recommended re'ection of the same mercy petition, then proaly her options were closed#  That >spect of ?arest of rare doctrine, which needs serious consideration, is interpretation of latter part of the dictum @ Mthat ou"ht not to e done save in the rarest of rare cases when the alternative option is unuestionaly foreclosed#D Bachan Sin"h -supra3 su""ested selection of death punishment as the penalty of  last resort when, alternative punishment of life imprisonment will e futile and serves no purpose# Geath punishment, as will e discussed in detail a little later, ualitatively stands on a very di5erent footin" from other types of punishments# $t is uniue in its total irrevocaility(vi)# $n >lo% Nath Gutt and Irs# V# State of Aest Ben"al(vii) this !ourt after e&aminin" various 'ud"ments over the past two decades in which the issues of rarest of rare fell for consideration,

Met hodsofexecut i onf orCapi t alpuni shment an"in" an"in" is the method of e&ecution in the civilian court system, accordin" to the $ndian !riminal Procedure !ode(viii)# Shootin" Under the .F<6 >rmy >ct, han"in" as well as shootin" are oth listed as ocial methods of e&ecution in the military courtHmartial system(i&)# !ons of capital punishment: Some of the important points due to which capital punishment is opposed y most of the human ri"hts or"anisation in the world are discussed in the te&t elow:

.# Unli%e many other punishments, loss su5ered y death penalty irreversile, ut can never i"nore hi"h ris% of  convictin" the wron" person and e&ecutin" the innocent# Aell such cases are almost very rare when innocents are convicted for a crime which they had not done# 7# Geath penalty is actually deprivation of person from the fundamental ri"ht provided y constitution to the accused,, which is ri"ht to life# 1# Geath punishment is asolutely more e&pensive in comparison to other punishments provided y le"al system# These e&tra e&penses are due to additional time ta%es y the ody to actually e&ecute the person for the crime committed y him# >nd yes this is the fact that if any criminal is "iven death penalty, they are also %ept in special cains which causes e&tra e&penses to e su5ered y the "overnment# =# > murder trial normally ta%e more time and money than any other trail, and when such trial has chances of death penalty then courts ta%es even more time to e sure for the real conditions and these e&penses are paid up actually y ta&es that are paid y the ta&payers of the country# <# Bha"wati has pointed on >u"ust ./ .F27, *!apital punishment has a class comple&ion and is imposed randomly and disproportionately on the poor and uneducated+# /# The !ases of death penalty causes e&tra appeals and consumes more time that normally reuired decidin" a case and this is caused due to endless appeals and additional procedures that are ein" followed up y the court#

Wor l dWi der esol ut i onsandVi ews -.3The mandate of the National uman ri"hts !ommission estalished under the uman ?i"hts Protection >ct of .FF1 provides a lens throu"h which the situation can e etter understoodH *;urder is ahorrent and demonstrates a lac% of respect for human life and so a policy of state %illin" is immoral# $t epitomies the rutality of violence rather than the reason as the solution to solve social dicult prolems#+ -73The $nternational !onvention on !ivil and Political ?i"hts, to which $ndia is a party and which has een rati9ed y .== states, encoura"es the aolition of Geath Penalty# -13The 7nd Protocol to the $nternational !onvention on civil and Political ?i"hts adopted y the United Nations Keneral >ssemly

with its ?esolution on ==O.72 of .ssemly of the United Nations resolved in .F0., *$n order to fully "uarantee the ri"ht to life provided in >rticle 1 of the UG?, the numer of o5ences for which !apital punishment may e imposed should e pro"ressively restricted, stressin" desiraility of  aolishin" of this punishment in all countries#+

Concl usi on: Ipposin" the death penalty does not indicate a lac% of sympathy for murder victims# In the contrary, murder demonstrates a lac% of  respect for human life# Because life is precious and death irrevocale, murder is ahorrent, and a policy of stateHauthoried %illin"s is immoral# State canDt %ill its pulic for estalishin" law# The main reason why this article tal%s aout aolishment of capital punishment is that MEven the vilest criminal remains a human ein" possessed of common human di"nityD Therefore one should respect each and every human ein"# $t epitomies the tra"ic inecacy and rutality of violence, rather than reason, as the solution to dicult social prolems# ;any murder victims do not support stateHsponsored violence to aven"e the death of their loved one# Sadly , these victims have often een ;ar"inalied y politicians and prosecutors, who would rather pulicie the opinions of proHdeath penalty family memers#  The est thin" is that countries donDt have any law in which death penalty is mandatory# Ae cannot lose si"ht of the enormity and "ravity of a criminalDs crime# > criminal has to pay for his crime# But as a society we want to %ill the crime and not the criminal# > policy of life imprisonment without the possiility of a parole would e a much humane punishment# $n order to not ma%e the accused, not a liaility to the e&cheuer, the accused must e made to ma%e inancial ?estitution# The punishment should not e de"radale so as to randish the sanctuary of life of a person# The uote well suits the concernH *Ahy %ill people who %ill people to show %illin" is wron"+# ?ecently, in the case of Shatru"han !hauhan v# Union of $ndia, a threeH'ud"e ench of the $ndian Supreme !ourt delivered a

landmar% 'ud"ment on the death penalty: holdin", in particular, that an e&cessive delay in carryin" out the death sentence was an essential miti"atin" factor in a plea for commutation# $n doin" so, it  'oined 'urisdictions such as the United States and the Privy !ouncil, and overruled its own 76.1 'ud"ment in Bhullar v# N!T# $n Bhullar, the Supreme !ourt relied upon a concurrin" 'ud"ment in the previous case of Trivenien that appeared to hold that delay need not e a "round for commutation# The !ourt drew a distinction etween ordinary capital crimes and capital crimes under terrorism statutes -at issue in Bhullar3# $t held that ecause of the serious nature of the crimes involved, an e&cessive delay in processin" a death row convictDs mercy petition need not e a "round for commutin" the death sentence to life imprisonment# Thus, the !ourt had e5ectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to# $n Shatru"han !hauhan, the Supreme !ourt comprehensively re'ected this reasonin"# $t held that the Bhullar court had overloo%ed the Trivenien ma'ority 'ud"mentDs contrary stance that a delay in carryin" out the death sentence was, indeed, one "round for commutationQ and thus, the !ourt held Bhullar to e per incuriam -i#e# decided without reference to an earlier relevant 'ud"ment, and thus havin" no force as precedent3# The !ourt held, on the other hand, that: *There is no "ood reason to disualify all T>G> cases as a class from relief on account of delay in e&ecution of death sentence#+ -Para /13  The !ourt, however, refused to provide a speci9c time after which a delay would render commutation necessary, and held that each case would e ad'udicated on its own merits# $n essence, the !ourt thus made delay an essential miti"atin" factor# This would e considered on the !ourtDs *alance sheet+ enuiry, under which it draws up a list of a""ravatin" and miti"atin" factors, in order to decide whether or not to award the death penalty in a particular case# >t the heart of the ar"ument is the idea that %eepin" a death row convict under the shadow of death for years is a form of cruel, inhuman and de"radin" punishment that no civilied society -whether or not it allows capital punishment3 should in8ict upon human ein"s -this short story y JeanHPaule Sartre and this poem y Iscar Ailde perhaps drive home the point most forcefully3# The inevitale mental a"ony that accompanies waitin" for an inevitale death, demeans individual di"nity# $nsofar as the !ourt has interpreted >rticle 7.Rs "uarantee of the ri"ht to life to include treatin" all individuals with di"nity, the 'ud"ment rearms the humanism that is the foundation the !onstitution, and that

whatever the crime mi"ht have een, human ein"s continue to have a le"itimate claim to e treated with di"nity under the !onstitution#  The !ourt further held, referrin" to a copious ody of forei"n law and international law, that insanity was a "round for commutation -paras 0. @ 023Q this is 'usti9ed y our asic, intuitive notion that persons in a democracy ou"ht to su5er penalties and urdens only to the e&tent that they are responsile for the actions that they underta%e @ and that punishment must respond not 'ust to the nature of the crime, ut to the aility of the actor to understand or comprehend the nature of his actions# !omin" to the 9fteen individual cases efore it, the !ourt applied the delay principle to commute the sentences to life imprisonment# $t ended y framin" "uidelines for the purpose in future, layin" down various reuirements such as the written communication of  the outcome of a mercy petition to a convict and his family, the provision of free le"al aid, a postHmortem report to verify whether han"in", as a form of capital punishment, caused undue amounts of  pain, and so on#  The Shatru"han 'ud"ment is a pro"ressive step in $ndian death penalty 'urisprudence# Perhaps it is est to leave the last word to the !ourt, in its penultimate para"raph, su""estin" not 'ust that the death penalty should e administered humanely, ut that the very idea @ say it softly @ of StateHsanctioned %illin" of human ein"s has no place in a civilied democracy: *?ememer, retriution has no !onstitutional value in our lar"est democratic country#+ Edited y Sa%sham Gwivedi (i) -.F263 7 S!! /2= (ii) Bacchan sin"h -.F263 7 S!! /2= (iii) -766F3 / S!! =F2 (iv) 766< -13 S!? 0/6 (v) .F21 S!? -73 /F6 (vi) -766F3 / S!! =F2 (vii)  766/-.13S!>CE=/0 (viii) $ndia !riminal Procedure !ode, !h# V$$, art# 1<= -<3, .F01

(i&) >rmy >ct, art# .// >ct no# =/ of .F<6, ;ay 76, .F<6#