GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

CONSULTATION PAPER ON CAPITAL PUNISHMENT
MAY, 2014
Those desirous of submitting suggestions/comments to the Law
Commission of India may send their written suggestions/comments
either in English or Hindi to the Member Secretary, Law Commission
of India, Hindustan Times House, 1
th
!loor, "asturba #andhi Marg,
$ew %elhi&11' ''1( E&mail) lci&dla*nic(in within +' days(
Consultation Paper
1
Theme: Ca!"a# P$%!&hme%"
Pa'" I( I%"')*$+"!)%
1( ,n -anuary .1, .'1, the Su/reme Court in the case of Shatrughan Chauhan v.
Union of India
1
, commuted death sentences of 10 death con1icts to life sentence(
These death row con1icts a//roached the a/e2 court as a final resort after their
mercy /etitions were dismissed by the 3resident of India( The Court in this batch
matter held that 1arious su/er1ening circumstances which had arisen since the
death sentences were confirmed by the Su/reme Court in the cases of these death
row con1icts had 1iolated their !undamental 4ights to the e2tent of ma5ing the
actual e2ecution of their sentences unfair and e2cessi1e( Soon after this decision,
the Su/reme Court in V. Sriharan v. Union of India
.
, once again in1o5ed this
strand of death 6uris/rudence to commute the death sentences of all the three
con1icts in the 4a6i1 #andhi 7ssassination case( Li5ewise, in the Devender Pal
Singh Bhullars case
+
, the Court commuted the death sentence of the con1ict on
the ground of inordinate delay in the e2ecution of sentence and mental health
/roblems faced by the /etitioner(
These Su/reme Court rulings ha1e a1erted at least 18 imminent e2ecutions in all
in the recent /ast( It is to be borne in mind that India before it e2ecuted 76mal
"asab and 7f9al #uru last year, had an e2ecution free run for a /eriod of : years(
This de facto moratorium led many to belie1e and argue that India must consider
the utility and desirability of retaining this most e2ce/tional and absolute /enalty(
These commutations affected by the Su/reme Court ha1e once again energi9ed the
debate on death /enalty( ,nce again, /eo/le ha1e begun to s/eculate about the end
1
(2014) 3 SCC 1
2
(2014) 4 SCC 242
3
Navneet Kaur v. State (NCT Of Delhi), Curative Petition (Criminal) No. 88 of 2013 (Decided on March 31, 2014).
2
goal of 5ee/ing a /enalty such as death sentence on the statute boo5( The issue has
also gathered considerable debate in the mainstream media( Editorials in ma6or
news/a/ers ha1e been /ublished as5ing for a re&loo5 at death /enalty

(
7t this 6uncture, an e2hausti1e study on the sub6ect would be a useful and salutary
contribution to the cause of /ublic debate on this issue( Such a study will also
/ro1ide a definiti1e research bac5ed orientation to the law ma5ers and 6udges on
this 1ery contentious issue(
.( In the last decade death /enalty has become a sub6ect&matter of intense focus in
the Su/reme Court( The 7/e2 Court on 1arious occasions has wrestled with the
dis/arate a//lication of law on death /enalty and constitutional fairness
im/lications of the same ;see 3art I< for a detailed treatment of this theme=( 7
systematic study which would address the >ueries and concerns of Courts and also
/resents an international /ers/ecti1e on the issue is much needed( The Court in
some of these cases has s/ecifically re>uested the Law Commission to underta5e
research in this behalf(
The Su/reme Court in Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra
0
has, in this regard, obser1ed)
?11.( @e are also aware that on 1:&1.&.''A, the Bnited $ations #eneral
7ssembly ado/ted 4esolution C./18 calling u/on countries that retain the death
/enalty to establish a worldwide moratorium on e2ecutions with a 1iew to
abolishing the death /enalty( India is, howe1er, one of the 08 nations that retain
the death /enalty( C'e*!,#e 'e&ea'+h, e'ha& ,- "he La. C)mm!&&!)% )/ I%*!a
4
ee !ndian "#$re%% "ditorial, &Justice more humane', (anuar) 22,2014 availa*le at
htt$+,,indiane#$re%%.com,article,o$inion,editorial%,-u%tice.more.humane,/ 0indu%tan 1ime% "ditorial, &C rulin2 on
death $enalt) a %te$ clo%er to it% a*olition', (anuar) 22,2014 availa*le at
htt$+,,333.hindu%tantime%.com,comment,%c.rulin2.on.death.$enalt).a.%te$.clo%er.to.it%.a*olition,article1.
1145480.a%$#/ 1he 0indu "ditorial, &1he !n-u%tice of Dela)', (anuar) 23,2014 availa*le at
htt$+,,333.thehindu.com,o$inion,editorial,the.in-u%tice.of.dela),article5606434.ece (7a%t vi%ited on 14.05.2014)
5
(2009) 6 SCC 498
3
)' "he Na"!)%a# H$ma% R!0h"& C)mm!&&!)% ma- a##). /)' a% $1")1*a"e a%*
!%/)'me* *!&+$&&!)% a%* *e,a"e )% "he &$,2e+"(3 ;Em/hasis su//lied=
Similarly, the Court in Shanar Kisanrao Khade v. State of Maharashtra
!
was also
concerned with another dimension of the issue of death /enalty and rued lac5 of research
on the issue( The Court held)
?1:( It seems to me that though the courts ha1e been a//lying the rarest of rare
/rinci/le, the e2ecuti1e has ta5en into consideration some factors not 5nown to the
courts for con1erting a death sentence to im/risonment for life( It is im/erati1e, in
this regard, since we are dealing with the li1es of /eo/le ;both the accused and the
ra/e&murder 1ictim= that the courts lay down a 6uris/rudential basis for awarding
the death /enalty and when the alternati1e is un>uestionably foreclosed so that the
/re1ailing uncertainty is a1oided( %eath /enalty and its e2ecution should not
become a matter of uncertainty nor should con1erting a death sentence into
im/risonment for life become a matter of chance( Pe'ha& "he La. C)mm!&&!)%
)/ I%*!a +a% 'e&)#4e "he !&&$e ,- e5am!%!%0 .he"he' *ea"h e%a#"- !& a
*e"e''e%" $%!&hme%" )' !& 'e"'!,$"!4e 2$&"!+e )' &e'4e& a% !%+aa+!"a"!4e 0)a#(
18( It does /rima facie a//ear that two im/ortant organs of the State, that is, the
6udiciary and the e2ecuti1e are treating the life of con1icts con1icted of an offence
/unishable with death with different standards( @hile the standard a//lied by the
6udiciary is that of the rarest of rare /rinci/le ;howe1er sub6ecti1e or -udge&centric
it may be in its a//lication=, the standard a//lied by the e2ecuti1e in granting
commutation is not 5nown( Therefore, it could ha//en ;and might well ha1e
ha//ened= that in a gi1en case the Sessions -udge, the High Court and the
Su/reme Court are unanimous in their 1iew in awarding the death /enalty to a
con1ict, any other o/tion being un>uestionably foreclosed, but the e2ecuti1e has
ta5en a diametrically o//osite o/inion and has commuted the death /enalty( Th!&
6
(2013) 5 SCC 546
4
ma- a#&) %ee* ") ,e +)%&!*e'e* ,- "he La. C)mm!&&!)% )/ I%*!a(3 ;Em/hasis
su//lied=
Pa'" II( P'!)' P)&!"!)% )/ "he La. C)mm!&&!)% )% Dea"h Pe%a#"-
1( 67
"h
Re)'" 819:;<
In 18C., the Law Commission undertoo5 an e2tensi1e e2ercise to consider the issue of
abolition of ca/ital /unishment from the statute boo5s( 7 reference to this effect was
made to the Law Commission when the third Lo5 Sabha debated on the resolution mo1ed
by Shri 4aghunath Singh, Member, Lo5 Sabha for the abolition of ca/ital /unishment(
The Law Commission released its +0th re/ort in 18CA recommending retention of death
/enalty
A
(
Many of the conclusions arri1ed at by the Law Commission were based on deductions on
general elements of cultural and social life as it e2isted then( 7lso, some of the indicators
considered by the commission such as those on education, crime rates et al ha1e
drastically changed in the last half a century( The following much >uoted 1iew of the
Law Commission, for instance, is distinctly rooted in the social&/olitical en1ironment of
the day and to that e2tent is 1ery limited in how it can be /ut to use in the current day
conte2t)
?Ha1ing regard, howe1er, to the conditions in India, to the 1ariety of social
u/bringing of its inhabitants, to the dis/arity in the le1el of morality and education
in the country, to the 1astness of its area, to the di1ersity of its /o/ulation and to
the /aramount need for maintaining law and order in the country at the /resent
6uncture, India cannot ris5 the e2/eriment of abolition of ca/ital /unishment(D
4
1hi% 7a3 Commi%%ion re$ort i% availa*le on 7a3 Commi%%ion 3e*%ite . htt$+,,la3commi%%ionofindia.nic.in,1.
50,8e$ort359ol1and3.$df and htt$+,,la3commi%%ionofindia.nic.in,1.50,8e$ort359ol2.$df (7a%t vi%ited on
14.05.2014)
5
The re/ort also obser1ed that the suggestion that ca/ital /unishment may be abolished for
a fi2ed /eriod of time as an e2/eriment was fraught with the ris5 as between its abolition
and reintroduction there could be an inter1ening era of 1iolence and reintroduction of
ca/ital /unishment may not ha1e the desired effect of restoring law and order( It is to be
noted that India underwent an e2ecution free /eriod of : years between .'' and .'1+(
These years when India did not see any e2ecution could be considered as a natural
e2/eriment which comes close to a de fa"to moratorium( %uring this /eriod, crime data
from $ational Crime 4ecords Eureau does not con1ey any /articular s/urts in crime rate(
Eut at the same time, we must bear in mind that during this /eriod, death sentences
continued to be awarded or u/held by the Courts at the normal rate( To that e2tent, this
/eriod, if at all, can only be considered as a moratorium of sorts only on the actual
e2ecutions and not on the a//lication of death /enalty by Courts and effect thereof on
crime rates may ha1e to be considered as such(
The +0
th
re/ort of the Law Commission obser1ed that the discretion of the Court in the
matter of sentence to be awarded in a ca/ital case must be retained and such discretion
was by and large being e2ercised satisfactorily and in accordance with 6udicial /rinci/les(
The re/ort obser1ed that ?#t$he "onsiderations %hi"h %eigh or should %eigh %ith the
"ourt in a%arding the lesser &unishment of im&risonment of life #in res&e"t of offen"es
for %hi"h the &res"ribed &unishment is death or im&risonment for life$' "annot be
"odified. (he "ir"umstan"es %hi"h should or should not be taen into a""ount' and the
"ir"umstan"es %hi"h should be taen into a""ount along %ith other "ir"umstan"es' as
%ell as the "ir"umstan"es %hi"h may' by themselves' be suffi"ient' in the e)er"ise of the
dis"retion regarding senten"e "annot be e)haustively enumerated(D The re/ort obser1ed
that the e2ercise of discretion may de/end on local conditions, future de1elo/ments, and
e1olution of moral sense of the community, state of crime at a /articular time or /lace
and many other unforeseeable features( It is /ertinent to note that the re/ort of the Law
Commission /redated the landmar5 6udgment in Ba"han Singh v. State of Pun*ab
+
which
8
1980 (2) SCC 684
6
laid down the Frarest of rareF doctrine and held that ca/ital /unishment should only be
awarded in the ?rarest of rare casesD when the alternati1e o/tion is un>uestionably
foreclosed( The Court held that aggra1ating and mitigating circumstances relating to the
crime and criminal must weigh in the mind of the Court while sentencing in ca/ital
offences(
Therefore, there is a need to e2amine afresh the guidelines on ca/ital sentencing in light
of the Frarest of rareF doctrine( !urthermore, the re/ort of the law commission does not
discuss in detail the a//rehensions regarding the arbitrary use of the CourtGs discretion in
ca/ital sentencing( In recent years, the Su/reme Court has admitted that the >uestion of
death /enalty is not free from the sub6ecti1e element and is sometimes unduly influenced
by /ublic o/inion( In this conte2t it is im/erati1e that a dee/er study be conducted to
highlight whether the /rocess of awarding ca/ital sentence is fraught with sub6ecti1ity
and ca/rice(
The Law Commission in its +0
th
4e/ort also recommended retaining of section +'+ of the
Indian 3enal Code, which /ro1ides for mandatory death /enalty( The commission too5
the following 1iew in this regard)
?Section +'+, Indian 3enal Code, under which the sentence of death is mandatory
for an offence under the section, need not be amended by lea1ing the >uestion of
sentence to the discretion of the Court, or by confining the o/eration of the section
to cases where the /re1ious offence is an offence for which the offender could
ha1e been sentenced to death(D
It is to be noted that section +'+ of the I3C was held to be unconstitutional by the
Su/reme Court in Mithu v. State of Pun*ab
,
( The court held)
?.+( ,n a consideration of the 1arious circumstances which we ha1e mentioned in
this 6udgment, we are of the o/inion that Section +'+ of the 3enal Code 1iolates
:
(1:83) 2 CC 244
4
the guarantee of e>uality contained in 7rticle 1 as also the right conferred by
7rticle .1 of the Constitution that no /erson shall be de/ri1ed of his life or
/ersonal liberty e2ce/t according to /rocedure established by law( The section was
originally concei1ed to discourage assaults by life con1icts on the /rison staff, but
the legislature chose language which far e2ceeded its intention(D
4elying u/on Mithu, the Su/reme Court in State of Pun*ab v. Dalbir Singh, the Su/reme
Court struc5 down section .A;+= of 7rms 7ct, 1808 /ro1iding for mandatory death
/enalty(
The commission in its re/ort also e2amined the as/ect of irre1ocability of ca/ital
/unishment in the conte2t of erroneous con1ictions and obser1ed that the /resence of
constitutional and statutory safeguards such as the /rerogati1e /ower of mercy, the /ower
of a//eal and re1iew as well as legal assistance /ro1ided to ca/ital con1icts reflected the
an2ious concern of the law to ensure that chances of error are 5e/t to the minimum(
@hile analy9ing /ro/osed safeguards against erroneous con1ictions, the commission
obser1ed)
?@e ho/e, howe1er, that such cases ha1e not been many( 7fter /assing through
the sie1e of 6udicial scrutiny under the /ro1isions already set out, and the scrutiny
a//lied in /roceedings for the e2ercise of /rerogati1e of mercy, it should be
difficult & we do not say it would be im/ossible & for a case to retain elements of
material falsehood( If, in s/ite of such scrutiny, such elements sur1i1e, that only
shows the need for 5ee/ing the /rocedural and other /ro1isions constantly under
re1iew( Elsewhere, in this 4e/ort, we oursel1es ha1e raised and discussed the
>uestion of im/ro1ements in the /ro1isions rele1ant to safeguards against error(
Eut, 1iewing the matter in its /ro/er /ers/ecti1e, we are not in a /osition to say
that the /ossibility of error is an argument which can totally dis/lace the
/aramount need for a /ro1ision intended to /rotect society(D
8
This conclusion arri1ed at by commission /ertains to /re&Ba"han Singh era and e1en
/redates the amendments made to the Code of Criminal 3rocedure in the year 18A+( The
Constitution bench decision in Ba"han Singh along with the new statutory regime ma5es
the satisfaction recorded by the commission as regards the fitness of norms as e2isting in
the earlier regime irrele1ant( In contem/orary 6udicial de1elo/ments, with fairness norms
more stringent than e1er before, the Su/reme Court has in the last 0 years re/eatedly
e2/ressed an2iety about une1en a//lication of death /enalty as also miscarriages
occasioned in death /enalty cases(
In .''8, the Su/reme Court declared &er in"urium the law laid down in -av*i alias -am
Chandra v. State of -a*asthan
./
which held that only the characteristics relating to crime,
to the e2clusion of the characteristics relating to the criminal were rele1ant for sentencing
in a criminal trial( In Bariyar, the Su/reme Court held -av*i to be /er&incuriam Ba"han
Singh dicta on the aforementioned /ro/osition which laid down that circumstances
relating to both the crime and criminal must be identified( Ey the time the 6udgment in
Bariyar was rendered, -av*i had already been e2ecuted and the /ro/osition laid down in
the im/ugned 6udgment had been followed in se1eral other cases( The aforesaid cases
dis/ute the ade>uacy of the e2isting mechanism of a//eals and /ower of re1iew by
Courts to safeguard against erroneous con1ictions( Two of the con1icts sentenced to
death /lacing reliance on the im/ugned 6udgment in -av*i could not esca/e the noose
des/ite the /ro1ision of mercy /ower as noted in the earlier re/ort ;see Part IV. 0udi"ial
Comments on Present Day 1dministration of Death Penalty in India for more on the
miscarriage of 6ustice arising out of reliance on the flawed -av*i dicta=
Moreo1er, recently, the Su/reme Court commuted the death sentence of fifteen con1icts
to life im/risonment in a batch matter of thirteen /etitions on grounds of 1iolation of their
fundamental rights due to inordinate delay in e2ercise of mercy /ower in deciding their
mercy /etitions and laid down guidelines for e2ercise of mercy /ower
11
( Commutation of
10
AIR 1996 SC 787
11
In Shatrughan Chauhan v. Union of India, ;.'1= + SCC 1, /ronouncing its 6udgment in a batch matter,
the Su/reme Court commuted the death sentence of fifteen con1icts to life im/risonment in the following
:
their sentences as a conse>uence of 1iolation of their fundamental rights begs the
>uestion whether the e2isting /ower of mercy is an ade>uate safeguard against erroneous
con1ictions( 7gainst this bac5dro/, there is a need to re1iew and ascertain the ade>uacy
of e2isting safeguards against erroneous con1ictions(
!urther, the commission made a reference to the then /re1ailing 1ery conser1ati1e global
scenario on abolition of death /enalty( Since then, the abolitionist mo1ement in the world
has undergone real transformation( It is to be noted that worldwide, o1er 1' countries
ha1e abolished the death /enalty and o1er .' other countries though retentionists, ha1e
not e2ecuted ca/ital sentences in ten years( !urthermore, there is also a category of
countries that ha1e abolished death /enalty for ordinary crimes such as murder and
retained it for e2ce/tional crimes such as crimes under military law or under e2ce/tional
circumstances(
1.
The international decline of death /enalty as form of /unishment began
18AC onwards much after the +0th re/ort of the Law Commission of India on Ca/ital
3unishment( The issues relating to ca/ital sentencing as well as the wides/read abolition
world o1er subse>uent to the /re1ious re/ort on ca/ital /unishment re>uire consideration
and detailed e2amination( It is worth mentioning here that the death /enalty was
abolished in South 7frica through a decision of the Constitutional Court in the case of S v
Ma%anyane and 1nother
.2
.
Moreo1er, many of the conclusions arri1ed at by the Law Commission in relation to
deterrence, retribution, /rofile of crime, systems of /unishments, alternati1es to death
sentence etc( are dated( These themes ha1e seen e2hausti1e and far more rigorous
1+ /etitions & @(3(;Crl(= $o( +/.'1+&Shami5 $arain H ,rs( 1( B,I H ,rs(, @(3(;Crl(= $o( 00/.'1+&
Shatrugan Chauhan 1( B,I H ,rs(, @(3(;Crl(= $o( 0C/.'1+& 3B%4 1( B,I H ,rs(, @(3(;Crl(= $o( 1+.&
Suresh H 4am6i 1( B,I H ,rs(, @(3(;Crl(= $o( 1+C/.'1+& 3B%4 1( B,I H ,rs(, @(3(;Crl(= $o(
1+8/.'1+& Shi1u 1( B,I H ,rs(, @(3(;Crl(= $o( 11/.'1+ & -adeswamy 1( B,I H ,rs(, @(3(;Crl(= $o(
1:A/.'1+&3ra1een "umar 1( B,I H ,rs(, $o( 1::/.'1+&Sonia Suresh "umar H Sanjeev Anup Kumar v.
UOI & Ors., W.P.(Crl.) No. 193/2013- Gurmeet Singh v. UOI & Ors. W.P.(Crl.) No. 190/2013- Jaffar Ali v. UOI &
Ors., W.P.(Crl.) No. 191/2013- Maganlal Barela v. UOI & Ors., W.P.(Crl.) No. 192/2013- PUDR v. UOI & Ors.
12
;% $er death $enalt) related %tati%tic% availa*le at htt$+,,333.amne%t).or2,en,death.$enalt),a*olitioni%t.and.
retentioni%t.countrie%. (7a%t vi%ited on 14.05.2014)
13
(CC1 3,:4)
10
academic wor5 since then and need fresh consideration ;see Part V. State of Present
-esear"h on Death Penalty for a /reliminary discussion on this theme=(
2( 1=;
"h
Re)'" 82006<
Though the Law Commission /resented its 1:Ath re/ort on the limited issue of
?Mode of E2ecution of %eath Sentence and Incidental MattersD in .''+
1
, the substantial
>uestion of desirability of death /enalty as a /unishment was not /art of the terms of this
re/ort and the Law Commission accordingly did not e2/ress any 1iew on this matter( In
the +0th re/ort on ca/ital /unishment, the commission did not recommend changing the
mode of e2ecution from hanging and obser1ed that ?#&$rogress in the s"ien"e of
anestheti"s and further study of the various methods' as %ell as the e)&erien"e gathered
in other "ountries and develo&ment and refinement of the e)isting methods' %ould
&erha&s' in future' furnish a firm basis for "on"lusion on this "ontroversial sub*e"t(D This
1:Ath re/ort was ta5en u/ in .''+ suo motu by the commission 5ee/ing in mind the
technological ad1ances in the field of science, medicine and anesthetics( "ee/ing in mind
the number of the years that ha1e ela/sed since the commission last too5 u/ the sub6ect of
ca/ital /unishment, it is im/erati1e for the Law Commission to consider these
fundamental >uestions relating to death /enalty afresh and draw on the rich and still
emerging scientific, academic and 6udicial o/inion on many of these sub6ects
7gainst the abo1ementioned bac5dro/, it is e1ident that the issue of death /enalty, its
/lace in a modern criminal 6ustice system, alternati1es to the same and the socio&legal
costs im/licit in retaining the /enalty need urgent e2amination( @ith this aim at mind,
this consultation /a/er /resents an o1er1iew of the de1elo/ments in the field of death
/enalty(
14
1hi% 7a3 Commi%%ion re$ort i% availa*le on 7a3 Commi%%ion 3e*%ite .
la3commi%%ionofindia.nic.in,re$ort%,184th re$ort.$df. (7a%t vi%ited on 14.05.2014)
11
Pa'" III( Rea+h )/ Dea"h Pe%a#"- La.&
1( S"a"$")'- P')4!&!)%&
The Indian 3enal Code, 1:C' /rescribes death /enalty for a number of crimes( Some of
the offences /unishable by sentence of death under the Indian 3enal Code are treason
;section 1.1=, abetment of mutiny ;section 1+.=, /er6ury resulting in the con1iction and
death of an innocent /erson ;section 18=, threatening or inducing any /erson to gi1e
false e1idence resulting in the con1iction and death of an innocent /erson ;section 1807=,
murder ;section +'.=, 5idna//ing for ransom ;section +C7= and dacoity with murder
;section +8C=( 7mongst these offences, death /enalty continues to be used most
commonly for section +'.(
7dditionally, many other s/ecial legislations such as the 7ir !orce 7ct, 180', the 7rmy
7ct, 180', the $a1y 7ct, 180', Commission of Sati ;3re1ention= 7ct, 18:A Isection
;1=J, Scheduled Castes and Scheduled Tribes ;3re1ention of 7trocities= 7ct, 18:8
Isection +;.=;i=J, E2/losi1e Substances 7ct, 18': Isection +;b=J, Bnlawful 7cti1ities
3re1ention 7ct, 18CA Isection 1C;1=J also /ro1ide for the death /enalty(
2( E5"e%*!%0 Dea"h Pe%a#"- ") Rae
In %ecember .'1., brutal gang ra/e and fatal assault resulting in the death of a .+ year
old medical student in the ca/ital city brought the issue of ram/ant se2ual 1iolence faced
by women under intense media s/otlight and /ublic ga9e( The tragic gang ra/e case
which came to be called as the $irbhaya ra/e case, triggered s/ontaneous mass /rotests
in the city( The issue of womenKs safety recei1ed long o1erdue /rominence in media
re/orts and tele1ision debates( The #o1ernment of India res/onded to this high decibel
12
/rotest and relentless media cam/aign by constituting a three member committee headed
by former Chief -ustice of India, -ustice -(S( <erma( -ustice Leila Seth and Mr( #o/al
Subramanium, Senior 7d1ocate were the other members of the committee( The mandate
of the committee was to recommend amendments for >uic5er trial and enhanced
/unishment for criminals committing se2ual assault of e2treme nature against women(
The committee submitted its recommendations within a month of it being constituted(
10
The committee has since recei1ed uni1ersal accolades for the broad sco/e of its
recommendations, which were wor5ed on the basis of wide ranging consultations with
the ci1il society and other sta5e holders(
In res/ect of sentencing, the committee obser1ed that /unishments for se2ual offences
could be categori9ed into two categories & ;i= term sentences and ;ii= life im/risonment(
@hile recommending the insertion of a se/arate /ro1ision with enhanced /unishment for
aggra1ated se2ual assault, the committee noted that 3in the larger interests of so"iety'
and having regard to the "urrent thining in favour of abolition of the death &enalty' and
also to avoid the argument of any senten"ing arbitrariness' %e are not in"lined to
re"ommend the death &enalty.4 The committee further noted that though ra/e was a
heinous crime and an e2treme 1iolation of self, there were instances where the
1ictim/sur1i1or could lead a normal life with some su//ort from society and o1ercome
the trauma( The committee noted that ?#i$n other %ords' %e do not say that su"h a
situation is less morally de&raved' but the degree of in*ury to the &erson may be mu"h
less and does not %arrant &unishment %ith death.4
@hile ta5ing into consideration the /ro1isions of the International Co1enant on Ci1il and
3olitical 4ights, the Bni1ersal %eclaration of Human 4ights, the Con1ention on the rights
of child, Con1ention against torture and other cruel, inhuman and degrading treatment or
/unishment and other international Con1entions, the committee noted that the abolition
of death /enalty and the reduction of number of offences in statute boo5s which notify
15
1he committee re$ort i% availa*le at htt$+,,333.mha.nic.in,cc. (7a%t vi%ited on 14.05.2014)
13
ca/ital /unishment are stated to be a /art of international customary law( ,bser1ing that
worldwide, o1er 10' countries ha1e abolished death /enalty or do not /ractice death
/enalty, the committee too5 note of the 6udgment of the Bnited States Su/reme Court in
Coer v. 5eorgia
1C
where the BS Su/reme Court struc5 down the sentence of death for a
con1icted felon who had committed aggra1ated se2ual assault holding that the sentence
of death for ra/e was dis/ro/ortionate, 1iolati1e of the :th and 1th 7mendments to the
BS Constitution and was also ?barbaric and e2cessi1eD( In its conclusion on ca/ital
/unishment for se2ual offences, the committee held)
?+A(Thus, there is a strong case which is made out before us that in India in the
conte2t of international law as well as the law as e2/lained in the 7merican
Courts, it would be a regressi1e ste/ to introduce death /enalty for ra/e e1en
where such /unishment is restricted to the rarest of rare cases( It is also stated that
there is considerable e1idence that the deterrent effect of death /enalty on serious
crimes is actually a myth( 7ccording to the @or5ing #rou/ on Human 4ights, the
murder rate has declined consistently in India o1er the last .' years des/ite the
slowdown in the e2ecution of death sentences since 18:'( Hence we do ta5e note
of the argument that introduction of death /enalty for ra/e may not ha1e a
deterrent effect( Howe1er, we ha1e enhanced the /unishment to mean the
remainder of life(D
It is also /ertinent to note that the committee did not recommend death sentence for
se2ual offences( The committee /ro/osed ?life im/risonment for the remainder of the
con1ictGs natural lifeD as the /unishment for re/eat offenders(
!ollowing the recommendations of the <erma Committee, the #o1ernment of India
enacted the amending 7ct on '.('(.'1+( 7mongst other /ro1isions, the amendment has
led to the insertion of four new sections namely +07, +0b, +0C and +0% to the
already e2isting section +0 of I3C which deals with assault or criminal force on a
16
433 < 584
14
woman with intent to outrage her modesty( The amendment has also enlarged the
meaning of ra/e in section +A0( !urthermore, the amendment has introduced death
/enalty as a /unishment in section +ACE for cases of re/eat offences of ra/e( It is to be
borne in mind that the <erma Committee categorically recommended against the
/unishment of death for the offence of ra/e(
It is noteworthy that section +ACE has already been ta5en recourse to by the Trial Court to
sentence three men to death in the Sha5ti Mills gang ra/e case in Mumbai(
Pa'" IV( >$*!+!a# C)mme%"& )% P'e&e%" Da- A*m!%!&"'a"!)% )/ Dea"h Pe%a#"- !%
I%*!a
@hile considering the >uestion of constitutionality of death sentence, the Su/reme Court
in Ba"han Singh, treated the /enalty of death as belonging to a category of its own( Eut
the Court in Ba"han Singh also too5 notice of the fact that death /enalty as a /unishment
has found mention in the Constitution in the section on mercy /owers of the #o1ernor
and the 3resident of India( !urther, the Court obser1ed that section +0;+= of the Code of
Criminal 3rocedure, 18A+ is /art of due /rocess framewor5 on death /enalty( In this
regard, the Court held the following)
?.'8( There are numerous other circumstances 6ustifying the /assing of the lighter
sentenceL as there are counter1ailing circumstances of aggra1ation( ?@e cannot
ob1iously feed into a 6udicial com/uter all such situations since they are
astrological im/onderables in an im/erfect and undulating society(D $onetheless,
it cannot be o1er&em/hasised that the sco/e and conce/t of mitigating factors in
the area of death /enalty must recei1e a liberal and e2/ansi1e construction by the
courts in accord with the sentencing /olicy writ large in Section +0;+=( -udges
should ne1er be bloodthirsty( Hanging of murderers has ne1er been too good for
them( !acts and !igures, albeit incom/lete, furnished by the Bnion of India, show
15
that in the /ast, courts ha1e inflicted the e2treme /enalty with e2treme infre>uency
M a fact which attests to the caution and com/assion which they ha1e always
brought to bear on the e2ercise of their sentencing discretion in so gra1e a matter(
I" !&, "he'e/)'e, !me'a"!4e ") 4)!+e "he +)%+e'% "ha" +)$'"&, a!*e* ,- "he
,')a* !##$&"'a"!4e 0$!*e1#!%e& !%*!+a"e* ,- $&, .!## *!&+ha'0e "he )%e')$&
/$%+"!)% .!"h e4e'm)'e &+'$$#)$& +a'e a%* h$ma%e +)%+e'%, *!'e+"e* a#)%0
"he h!0h')a* )/ #e0!&#a"!4e )#!+- )$"#!%e* !% Se+"!)% 67486< 4!?( "ha" /)'
e'&)%& +)%4!+"e* )/ m$'*e', #!/e !m'!&)%me%" !& "he '$#e a%* *ea"h &e%"e%+e
a% e5+e"!)%( A 'ea# a%* a,!*!%0 +)%+e'% /)' "he *!0%!"- )/ h$ma% #!/e
)&"$#a"e& 'e&!&"a%+e ") "a@!%0 a #!/e "h')$0h #a.A& !%&"'$me%"a#!"-( Tha"
)$0h" %)" ") ,e *)%e &a4e !% "he 'a'e&" )/ 'a'e +a&e& .he% "he a#"e'%a"!4e
)"!)% !& $%B$e&"!)%a,#- /)'e+#)&e*(3 ;Em/hasis su//lied=
3ro/ounding of the ?rarest of rareD standard as a rigorous test to be fulfilled in all cases
where the Courts award death sentence has in its heart the conce/tion of death /enalty as
a sentence that is uni>ue in its absolute denouncement of life for a /enal /ur/ose( 7s /art
of this characteri9ation of death /enalty standing in its own league, the Court de1ised one
of the most demanding and com/elling doctrines in law of crimes as e2isting in this
country( Emergence of the ?rarest of rareD dictum was 1ery much the beginning of
constitutional regulation of death /enalty in India(
In the last decade, the Su/reme Court has re1isited the theme of constitutional regulation
of death /enalty multi/le times( The comments made by the Su/reme Court in this behalf
indicate a degree of an2iety felt by the Court in dealing with the issue of death /enalty(
1( I%+)%&!&"e%+- a%* a',!"'a'!%e&& !% Dea"h Pe%a#"- Se%"e%+!%0
,n multi/le occasions, the Court has /ointed that the rarest of rare dictum /ro/ounded in
Ba"han Singh has been inconsistently a//lied by courts( In Bariyar' the Court in this
behalf has held that Fthere is no uniformity of &re"edents' to say the least. In most "ases'
16
the death &enalty has been affirmed or refused to be affirmed by us' %ithout laying do%n
any legal &rin"i&le(F
The Court relied on the decision in S%amy Shraddananda #6$
.7
, wherein the Court
obser1ed)
?8.( The truth of the matter is that the >uestion of death /enalty is not free from
the sub6ecti1e element and the confirmation of death sentence or its commutation
by this Court de/ends a good deal on the /ersonal /redilection of the -udges
constituting the Eench(
86( The inability of the criminal 6ustice system to deal with all ma6or crimes
e>ually effecti1ely and the want of uniformity in the sentencing /rocess by the
Court lead to a mar5ed imbalance in the end results( ,n the one hand there a//ears
a small band of cases in which the murder con1ict is sent to the gallows on
confirmation of his death /enalty by this Court and on the other hand there is a
much wider area of cases in which the offender committing murder of a similar or
a far more re1olting 5ind is s/ared his life due to lac5 of consistency by the Court
in gi1ing /unishments or worse the offender is allowed to sli/ away un/unished
on account of the deficiencies in the criminal 6ustice system( Thus the o1erall
larger /icture gets asymmetric and lo/sided and /resents a /oor reflection of the
system of criminal administration of 6ustice( This situation is a matter of concern
for this Court and needs to be remedied(D
The Court further obser1ed that both academics and the Court ha1e /re1iously noticed
the issue of sub6ecti1ity in death /enalty( In this regard, the Court made a reference to a
6oint re/ort by 7mnesty International and 3eo/leGs Bnion for Ci1il Liberties titled
FLethal Lottery) The %eath 3enalty in India, 7 Study of Su/reme Court -udgments in
%eath 3enalty Cases, 180'&.''CF
1:
( The Court further obser1ed)
14
(2008) 13 CC 464
18
1he %tud) i% availa*le at htt$+,,333.amne%t).or2,en,li*rar),info,;;20,004,2008. (7a%t vi%ited on 14.05.2014)
14
?It can be safely said that the Eachan Singh I;18:'= . SCC C:J threshold of ?the
rarest of rare casesD has been most 1ariedly and inconsistently a//lied by the
1arious High Courts as also this Court(D
In Sangeet and 1nr. v. State of 9aryana
18
, the Court obser1ed that Fit does a&&ear that in
vie% of the inherent multitude of &ossibilities' the aggravating and mitigating
"ir"umstan"es a&&roa"h has not been effe"tively im&lemented(F The Court obser1ed)
?++( Therefore, in our res/ectful o/inion, not only does the aggra1ating and
mitigating circumstances a//roach need a fresh loo5 but the necessity of
ado/ting this a//roach also needs a fresh loo5 in light of the conclusions in
Ba"han Singh I;18:'= . SCC C:J( It a//ears to us that e1en though Ba"han
Singh I;18:'= . SCC C:J intended ?/rinci/led sentencingD, sentencing has
now really become -udge&centric as highlighted in S%amy Shraddananda
I;.'':= 1+ SCC ACA and Bariyar I;.''8= C SCC 8:J( This as/ect of the
sentencing /olicy in 3hase II as introduced by the Constitution Eench in
Ba"han Singh I;18:'= . SCC C:J seems to ha1e been lost in transition(F
2( C)%&"!"$"!)%a# Im#!+a"!)%& a'!&!%0 )$" )/ A',!"'a'!%e&& !% Dea"h Pe%a#"-
Se%"e%+!%0
The Court has also e2tensi1ely commented on the fundamental rights im/lications arising
out of dis/arate a//lication of the death /enalty law( In Bariyar, the Court obser1ed)
?0( In S%amy Shraddananda #6$ 1( State of Karnataa I;.'':= 1+ SCC ACAJ, the
Court notes that the awarding of sentence of death ?de/ends a good deal on the
/ersonal /redilection of the -udges constituting the EenchD( This is a serious
admission on the /art of this Court( Insofar as this as/ect is considered, there is
inconsistency in how Ba"han Singh I;18:'= . SCC C:J has been im/lemented, as
Ba"han Singh I;18:'= . SCC C:J mandated /rinci/led sentencing and not 6udge&
1:
(2013) 2 SCC 452
18
centric sentencing( There are two sides of the debate( It is acce/ted that the rarest
of the rare case is to be determined in the facts and circumstance of a gi1en case
and there is no hard&and&fast rule for that /ur/ose( There are no strict guidelines(
Eut a sentencing /rocedure is suggested( This /rocedure is in the nature of
safeguards and has an o1erarching embrace of the rarest of rare dictum(
Therefore, it is to be read with 7rticles .1 and 1(
N1.A( !re>uent findings as to arbitrariness in sentencing under Section +'. may
1iolate the idea of e>ual /rotection clause im/licit under 7rticle 1 and may also
fall foul of the due /rocess re>uirement under 7rticle .1(
1.:( It is to be noted that we are not focusing on whether wide discretion to
choose between life im/risonment and death /unishment under Section +'. is
constitutionally /ermissible or not( The sub6ect&matter of in>uiry is how discretion
under Section +'. may result in arbitrariness in actual sentencing( Section +'. as
held by Ba"han Singh I;18:'= . SCC C:J is not an e2am/le of law which is
arbitrary on its face but is an instance where law may ha1e been arbitrarily
administered(
N1+'( E>ual /rotection clause ingrained under 7rticle 1 a//lies to the 6udicial
/rocess at the sentencing stage( @e share the CourtGs unease and sense of dis>uiet
in S%amy Shraddananda #6$ "ase and agree that a ca/ital sentencing system which
results in differential treatment of similarly situated ca/ital con1icts effecti1ely
classifies similar con1icts differently with res/ect to their right to life under
7rticle .1( Therefore, an e>ual /rotection analysis of this /roblem is a//ro/riate(
In the ultimate analysis, it ser1es as an alarm bell because if ca/ital sentences
cannot be rationally distinguished from a significant number of cases where the
result was a life sentence, it is more than an ac5nowledgement of an im/erfect
sentencing system( In a ca/ital sentencing system if this ha//ens with some
fre>uency there is a lur5ing conclusion as regards the ca/ital sentencing system
1:
becoming constitutionally arbitrary( @e ha1e to be, thus, mindful that the true
im/ort of rarest of rare doctrine s/ea5s of an e2traordinary and e2ce/tional case(D

6( M!&+a''!a0e )/ >$&"!+e O++a&!)%e* !% Dea"h Pe%a#"- Ca&e&
The Su/reme Court, on more than one occasion, has also brought to light the miscarriage
of 6ustice in death /enalty cases( The Court in Bariyar has /ointed out gross mis&
a//lication of death /enalty law in a host of cases, which ha1e yielded in the award of
death sentences without following the sti/ulated test mandated in Ba"han Singh(
The Su/reme Court in Bariyar held the case in -av*i to be /er&incuriam the constitution
bench decision in Ba"han Singh( The Court in this behalf held)
?C1( The bac5ground analysis leading to the conclusion that the case belongs to
the rarest of rare category must conform to highest standards of 6udicial rigor and
thoroughness as the norm under analysis is an e2ce/tionally narrow e2ce/tion( 7
conclusion as to the rarest of rare as/ect with res/ect to a matter shall entail
identification of aggra1ating and mitigating circumstances relating both to the
crime and the criminal( It was in this conte2t noted) ;Ba"han Singh "ase, SCC /(
A+:, /ara 1C1=
?.!.. N The e2/ression Os/ecial reasonsK in the conte2t of this
/ro1ision, ob1iously means Oe2ce/tional reasonsK founded on the
e2ce/tionally gra1e circumstances of the /articular case relating to the
"rime as %ell as the "riminal(D ;em/hasis su//lied=
C.( Curiously, in -av*i 1( State of -a*asthan this Court held that it is only
characteristics relating to crime, to the e2clusion of the ones relating to criminal,
which are rele1ant to sentencing in criminal trial, stating) ;SCC /( 1:A, /ara .=
20
?6:. ((( The crimes had been committed with utmost cruelty and
brutality without any /ro1ocation, in a calculated manner( It is the
nature and gra1ity of the crime but not the criminal, which are germane
for consideration of a//ro/riate /unishment in a criminal trial( The
Court will be failing in its duty if a//ro/riate /unishment is not
awarded for a crime which has been committed not only against the
indi1idual 1ictim but also against the society to which the criminal and
1ictim belong( The /unishment to be awarded for a crime must not be
irrele1ant but it should conform to and be consistent with the atrocity
and brutality with which the crime has been /er/etrated, the enormity
of the crime warranting /ublic abhorrence and it should Ores/ond to the
societyGs cry for 6ustice against the criminalK(D
C+( @e are not obli1ious that -av*i "ase has been followed in at least si2 decisions
of this Court in which death /unishment has been awarded in last nine years, but,
in our o/inion, it was rendered /er incuriam( Ba"han Singh s/ecifically noted the
following on this /oint) ;SCC /( A+8, /ara 1C+=
?.!2. ((( The /resent legislati1e /olicy discernible from Section .+0;.=
read with Section +0;+= is that in fi2ing the degree of /unishment or
ma5ing the choice of sentence for 1arious offences, including one under
Section +'. of the 3enal Code, the court should not confine its
consideration O/rinci/allyK or merely to the "ir"umstan"es "onne"ted
%ith the &arti"ular "rime' but also give due "onsideration to the
"ir"umstan"es of the "riminal(D
!urther, the Court in Bariyar also /ointed out C decisions of Su/reme Court where the
/er&incuriam reasoning /ro/ounded in -av*i(
21
Since Bariyar' the Su/reme Court has admitted on multi/le occasions that -av*i has been
rendered /er&incurium Ba"han Singh( The Court in Dili& (i%ari v. State of Mahrashtra
6/
'
;/ara CA&C:=, -a*esh Kumar v. State
6.
, ;/aras CC&A'=, Sangeet v. State of 9aryana
66
' #&ara
27$' Mohinder v. State of Pun*ab
62
' #&ara 27.2$ obser1ed that binding reliance on -av*i
has led to dee/ly flawed sentencing by Courts( In these cases not e1en a single mitigating
circumstance has been considered by the Court and only aggra1ating as/ects of the ha1e
been gi1en any em/hasis which is in clear 1iolation to the Constitution bench decision in
Ba"han Singh.
It also bears mention that 1 former 6udges addressed an a//eal to the 3resident of India
to see5 his urgent inter1ention to commute the death sentences of these 1+ con1icts who
ha1e been sentenced to death on account of reliance on the /er&incurium /recedent of
-av*i(
.
In this letter, it was also /ointed out that two /risoners who had been wrongly
sentenced to death, 4a16i 4ao and Sur6a 4am ;both from 4a6asthan=, had already been
e2ecuted on May , 188C, and 7/ril A, 188A, res/ecti1ely, /ursuant to the flawed
6udgments( The a//eal letter called these as constituting the gra1est 5nown miscarriages
of 6ustice in the history of crime and /unishment in inde/endent India(
4( Se%"e%+!%0 C!a& !% C'$"a# C'!me&
In ;m Praash v. State of 9aryana
68
, Thomas, -( deliberated on the a//arent tension
between res/onding to ?cry of the societyD and meeting the Ba"han Singh dictum of
balancing the ?mitigating and aggra1ating circumstances( The Court was of the 1iew that
the sentencing Court is bound by Ba"han Singh and not in s/ecific terms to the
incoherent and fluid res/onses of society(
20
(2010) 1 CC 445
21
(2011) 13 CC 406
22
(2013) 2 CC 452
23
(2013) 3 CC 2:4
24
< <en5atesan, ?7 Case against the %eath 3enaltyD .8;1A= <rontline ;.0 7ugustPA Se/tember .'1.= a1ailable at
htt/)//www(frontline(in/na1igation/Qty/eRstaticH/ageRflonnetHrdurlRfl.81A/stories/.'1.'8'A.81A''''(htm( ;Last 1isited on
1('0(.'1=
25
(1:::) 3 CC 1:
22
In -a*esh Kumar v. State through 5ovt. of =C( of Delhi
6!
' the Court obser1ed)
?A0( ,n the other hand, while considering the aggra1ating circumstances, the High
Court a//ears to ha1e been substantially influenced with the brutality in the
manner of committing the crime( It is no doubt true that the murder was
committed in this case in a 1ery brutal and inhuman fashion, but that alone cannot
6ustify infliction of death /enalty( This is held in se1eral decisions of this Court(D
In Eariyar, the Court obser1ed, ?that there is no "onsensus in the Court on the use of
3so"ial ne"essity4 as a sole *ustifi"ation in death &unishment matters.4 The Court also
obser1ed)
36#>$ Senten"ing *ustifi"ations in heinous "rimes
A1( It has been obser1ed, generally and more s/ecifically in the conte2t of death
/unishment, that sentencing is the biggest casualty in crimes of brutal and heinous
nature( ,ur ca/ital sentencing 6uris/rudence is thin in the sense that there is 1ery
little ob6ecti1e discussion on aggra1ating and mitigating circumstances( In most
such cases, courts ha1e only been considering the brutality of crime inde2( There
may be other factors which may not ha1e been recorded(
A.( @e must also /oint out, in this conte2t, that there is no consensus in the Court
on the use of ?social necessityD as a sole 6ustification in death /unishment matters(
The test which emanates from Ba"han Singh I;18:'= . SCC C: ) 18:' SCC ;Cri=
0:'J in clear terms is that the courts must engage in an analysis of aggra1ating and
mitigating circumstances with an o/en mind, relating both to crime and the
criminal, irres/ecti1e of the gra1ity or nature of crime under consideration( 7
dis/assionate analysis, on the aforementioned counts, is a must( The courts while
ad6udging on life and death must ensure that rigour and fairness are gi1en /rimacy
o1er sentiments and emotions(
26
(2011) 13 CC 406
23
AC( In ;m Praash 1( State of 9aryana I;1888= + SCC 18 ) 1888 SCC ;Cri= ++J
"(T( Thomas, -( deliberated on the a//arent tension between res/onding to ?cry of
the societyD and meeting the Ba"han Singh I;18:'= . SCC C: ) 18:' SCC ;Cri=
0:'J dictum of balancing the ?mitigating and aggra1ating circumstances(D
7( Eme'0e%+e )/ A#"e'%a"e P$%!&hme%" ") Ca!"a# Se%"e%+!%0
It is also to be noted that in the last few years, Su/reme Court has entrenched the
/unishment of ?full lifeD or life sentence of determinate number of years as a res/onse to
challenges /resented in death cases( The Su/reme Court s/ea5ing through a three&6udge
bench decision in S%amy Shraddhanand #6$ laid the foundation of this emerging /enal
o/tion in following terms)
?8.( The matter may be loo5ed at from a slightly different angle( The issue of
sentencing has two as/ects( 7 sentence may be e2cessi1e and unduly harsh or it
may be highly dis&ro&ortionately inade?uate( @hen an a//ellant comes to this
Court carrying a death sentence awarded by the trial court and confirmed by the
High Court, this Court may find, as in the /resent a//eal, that the case 6ust falls
short of the rarest of the rare category and may feel somewhat reluctant in
endorsing the death sentence( Eut at the same time, ha1ing regard to the nature of
the crime, the Court may strongly feel that a sentence of life im/risonment sub6ect
to remission normally wor5s out to a term of 1 years would be grossly
dis/ro/ortionate and inade>uate( @hat then should the Court doQ If the CourtGs
o/tion is limited only to two /unishments, one a sentence of im/risonment, for all
intents and /ur/oses, of not more than 1 years and the other death, the Court may
feel tem/ted and find itself nudged into endorsing the death /enalty( Such a course
would indeed be disastrous( 7 far more 6ust, reasonable and /ro/er course would
be to e2/and the o/tions and to ta5e o1er what, as a matter of fact, lawfully
24
belongs to the Court i(e( the 1ast hiatus between 1 yearsG im/risonment and death(
It needs to be em/hasised that the Court would ta5e recourse to the e2/anded
o/tion /rimarily because in the facts of the case, the sentence of 1 yearsG
im/risonment would amount to no /unishment at all(
8+( !urther, the formalisation of a s/ecial category of sentence, though for an
e2tremely few number of cases, shall ha1e the great ad1antage of ha1ing the death
/enalty on the statute boo5 but to actually use it as little as /ossible, really in the
rarest of rare cases( This would only be a reassertion of the Constitution Eench
decision in Ba"han Singh I;18:'= . SCC C: ) 18:' SCC ;Cri= 0:' ) 7I4 18:' SC
:8:J besides being in accord with the modern trends in /enology(D
The obser1ations in S%amy Shraddhanand #6$ ha1e been followed by the Court in a
multitude of cases such as 9aru 5hosh v. State of @.B.
.A
, State of U.P. 1( San*ay
Kumar
.:
, Sebastian 1( State of Kerala
6,
, 5urvail Singh 1( State of Pun*ab
2/
where full life
or sentence of determinate number of years has been awarded as o//osed to death
/enalty(
:( U%e4e% A#!+a"!)% )/ Dea"h Se%"e%+e a0a!%&" "he Ma'0!%a#!?e*
In Ba"han Singh, while the constitutionality of death /enalty was u/held, -ustice
Ehagwati in his dissenting o/inion obser1ed)
?:1( There is also one other characteristic of death /enalty that is re1ealed by a
study of the decided cases and it is that death sentence has a certain class
com/le2ion or class bias inasmuch as it is largely the /oor and the downtrodden
who are the 1ictims of this e2treme /enalty( @e would hardly find a rich or
affluent /erson going to the gallows( Ca/ital /unishment, as /ointed out by
24
(200:) 15 CC 551
28
(2012) 8 CC 534
2:
(2010) 1 CC 58
30
(2013) 2 CC 413
25
@arden %uffy is ?a /ri1ilege of the /oorD( -ustice %ouglas also obser1ed in a
famous death /enalty case, ?!ormer 7ttorney 3amsey Clar5 has said) Oit is the
/oor, the sic5, the ignorant, the /owerless and the hated who are e2ecutedK(D So
also #o1ernor %isalle of ,hio State s/ea5ing from his /ersonal e2/erience with
the death /enalty said)
?%uring my e2/erience as #o1ernor of ,hio, I found the men in death row
had one thing in commonL they were /enniless( There were other common
denominators, low mental ca/acity, little or no education, few friends, bro5en
homes M but the fact that they had no money was a /rinci/al factor in their
being condemned to death( ( ( (D
The same /oint was stressed by "rishna Iyer, -( in -a*endra Prasad "ase I;18A8= +
SCC CC ) 18A8 SCC ;Cri= A8 ) 7I4 18A8 SC 81C ) 18A8 Cri L- A8.J with his
usual /unch and 1igour and in hard hitting language distincti1e of his inimitable
style)
?( ( ( @ho, by and large, are the men whom the gallows swallowQ The white&
collar criminals and the cor/orate criminals whose wilful economic and
en1ironmental crimes inflict mass deaths or who hire assassins and murder by
remote controlQ 4arely( @ith a few e2ce/tions, they hardly fear the halter(
The feuding 1illager, heady with country li>uor, the stri5ing wor5ers
des/erate with defeat, the /olitical dissenter and sacrificing liberator intent on
changing the social order from satani" misrule, the waifs and strays whom
society has hardened by neglect into street toughs, or the /oor householder M
husband or wife M dri1en by dire necessity or burst of tantrums M it is this
/erson who is the morning meal of the macabre e2ecutioner( ;SCC //( CA&
A0, /ara A.=
26
Historically s/ea5ing, ca/ital sentence /erha/s has a class bias and colour bar,
e1en as criminal law bar5s at both but bites the /roletariat to defend the
/ro/rietariat a reason which, incidentally, e2/lains why cor/orate criminals
including to/ e2ecuti1es who, by subtle /rocesses, account for slow or sudden
5illing of large members by adulteration, smuggling, cornering, /ollution and
other in1isible o/erations, are not on the wanted list and their offending o/erations
which directly deri1e /rofit from mafia and white&collar crimes are not 1isited
with death /enalty, while relati1ely lesser delin>uencies ha1e, in statutory and
forensic rhetoric, deser1ed the e2treme /enalty(D ;SCC /( CA0, /ara A0=
There can be no doubt that death /enalty in its actual o/eration is discriminatory,
for it stri5es mostly against the /oor and de/ri1ed sections of the community and
the rich and the affluent usually esca/e from its clutches( This circumstance also
adds to the arbitrary and ca/ricious nature of the death /enalty and renders it
unconstitutional as being 1iolati1e of 7rticles 1 and .1(D
Subse>uently, this sentiment was echoed in Mohd. <aroo? 1bdul 5afur and 1nr. v. State
of Maharashtra
2.
, wherein the Court stated)
?1C8(((The situation is accentuated due to the inherent im/erfections of the system
in terms of delays, mounting cost of litigation in High Courts and a/e2 court, legal
aid and access to courts and inarticulate information on socio&economic and
criminological conte2t of crimes( In such a conte2t, some of the leading
commentators on death /enalty hold the 1iew that it is in1ariably the marginali9ed
and destitute who suffer the e2treme /enalty ultimately(D
Moreo1er, a 6oint re/ort /re/ared by 7mnesty International India and 3eo/leGs Bnion for
Ci1il Liberties ;Tamil $adu and 3uducherry= in .'': titled FLethal Lottery) The %eath
31
(2010) 14 CC 641
24
3enalty in IndiaF has also highlighted the dis/ro/ortionate use of death /enalty against
disad1antaged grou/s( The re/ort obser1ed)
?The arbitrariness is fatal, but it is also selecti1e and discriminatory( The
randomness of the lethal lottery that is the death /enalty in India is /erha/s not so
random( It goes without saying that the less wealth and influence a /erson has, the
more li5ely they are to be sentenced to death( This is im/licit in the concerns
e2/ressed in 3art II of this re/ort about access to effecti1e legal re/resentation
;Section A(1= as well as about /re&trial in1estigations and collection of e1idence
;Section C(1(1=( The Su/reme Court itself has ac5nowledged the class bias in death
sentences(D
;( A',!"'a'- E5e'+!&e )/ Me'+- P).e'& #ea*!%0 ") V!)#a"!)% )/ F$%*ame%"a#
R!0h"& )/ Dea"h R). P'!&)%e'&
In Shatrughan Chauhan, while commuting the death sentence of fifteen con1icts due to
inordinate delay in dis/osal of their mercy /etition, the Court obser1ed)
?.( It is well established that e2ercising of /ower under 7rticles A./1C1 by the
3resident or the #o1ernor is a constitutional obligation and not a mere /rerogati1e(
Considering the high status of office, the Constitution !ramers did not sti/ulate
any outer time&limit for dis/osing of the mercy /etitions under the said 7rticles,
which means it should be decided within reasonable time( Howe1er, when the
delay caused in dis/osing of the mercy /etitions is seen to be unreasonable,
une2/lained and e2orbitant, it is the duty of this Court to ste/ in and consider this
as/ect( 4ight to see5 for mercy under 7rticles A./1C1 of the Constitution is a
constitutional right and not at the discretion or whims of the e2ecuti1e( E1ery
constitutional duty must be fulfilled with due care and diligence, otherwise 6udicial
interference is the command of the Constitution for u/holding its 1alues(D
28
@hile awarding relief to the /etitioners, the Su/reme Court relied u/on a long line of
cases where the Su/reme Court has recogni9ed that inordinate delay in dis/osal of mercy
/etitions by the #o1ernor or the 3resident 1iolate 7rticle .1 rights of the death row
/risoners which in turn ma5es him entitled for the relief of commutation of death
sentence to life im/risonment( The Su/reme Court in Sher Singh and ;thers v State of
Pun*ab
26
held that 7rticle .1 rights inhere in a /erson so long as he li1es and that they are
rele1ant and a//licable at all stages of the 6udicial /rocess) trial, sentence and e2ecution
of the sentence( The Court has held that in such cases, if the delay is shown to be
e2cessi1e and un6ustified in the facts of the case, e2ecution of the death sentence would
amount to harsh and inhuman /unishment 1iolating 7rt( .1, and the Court should
commute the death sentence( !urther in Smt. (riveniben v State of 5u*arat
22
, a
Constitutional Eench of the Su/reme Court in a categorical ruling held as follows)
?Bndue long delay in e2ecution of the sentence of death will entitle the
condemned /erson to a//roach this Court under 7rticle +. but this Court will only
e2amine the nature of delay caused and circumstances that ensued after sentence
was finally confirmed by the 6udicial /rocess and will ha1e no 6urisdiction to
reo/en the conclusions reached by the court while finally maintaining the sentence
of death( This Court, howe1er, may consider the >uestion of inordinate delay in
the light of all circumstances of the case to decide whether the e2ecution of
sentence should be carried out or should be altered into im/risonment for life( $o
fi2ed /eriod of delay could be held to ma5e the sentence of death ine2ecutable and
to this e2tent the decision in <atheeswaran case cannot be said to lay down the
correct law and therefore to that e2tent stands o1erruled(D
In1o5ing, this uni>ue branch of death /enalty law, the Su/reme Court has in earlier cases
too ha1e sto//ed the e2ecutions on account of delayed re6ection of mercy /etitions by the
e2ecuti1e authorities( In Mahendra =ath Das v. Union of India
2:
, Madhu Mehta v. Union
32
(1:83) 2 CC 344
33
(1:8:) 1 CC 648
34
(2013) 6 CC 253
2:
of India
28
, K.P. Mohammed v. State of Kerala
2!
, Shiva*i 0aysingh Babar v. State of
Maharashtra
27
, Daya Singh v. Union of India
2+
' and 0aved 1hmed 1bdul 9amid Pa%ala
v. State of Maharashtra
2,
' the Su/reme Court /rohibited the e2ecuti1e authorities from
e2ecuting the death row /risoners(
Pa'" V( S"a"e )/ P'e&e%" Re&ea'+h )% Dea"h Pe%a#"-
There has been a woeful lac5 of research on the issue of death /enalty in India( The state
of research on the a//lication of death /enalty law by the 6udiciary is so inade>uate that
chances of an informed and rigorous /olicy analysis on this issue are seriously im/eded(
7 constitutional challenge if and when ta5en u/ by the Su/reme Court or a legislati1e
change in the law will be ill ser1ed in the /resent en1ironment of lac5 of study on the
issue( Some of the im/ortant studies, which ha1e 1entured to assess the death /enalty
en1ironment in India, are flagged below for information(
In a /re&Ba"han Singh em/irical /a/er authored by 7nthony Elac5shield, the issue of
arbitrariness in award of death sentences was e2/lored( The author showed through a
study of A' 6udgments of the Su/reme Court between 18A. and 18AC that the award of
death /enalty in a /articular case is more a function of the 1iews of the 6udge concerned
on the sub6ect rather than the state of law or the facts of the case(
'
7nother landmar5 study titled as ?Lethal Lottery) The %eath 3enalty in IndiaD brought
out 6ointly by 7mnesty International, India and the 3eo/leKs Bnion for Ci1il Liberties
charted the ga/s and wea5nesses in the administration of death /enalty in India since
180'( The re/ort in its analysis of Su/reme Court decisions on death /enalty recorded
35
1:8:) CC (Cri) 405
36
1:84 u$$ (1) CC 684
34
(1::1) 4 CC 345
38
(1::1) 3 CC 61
3:
(1:85) 1 CC 245
40
; 8 =lac>%hield, &Ca$ital Puni%hment in !ndia' (1:4:) 21(2) Journal of the Indian Law Institute 134.
30
that ?the death /enalty in India has been an arbitrary, im/recise and abusi1e means of
dealing with crime and criminals(D This re/ort has been referred to by the Su/reme Court
in Bariyar, Mohd. <aroo? 1bdul 5afur' and S%amy Shraddananda #6$(
7 recent study which was commissioned by the 7merican Law Institute ;7LI= has
concluded that the defects and unfairness inherent in the 7merican death /enalty system
are so intractable and intrinsic to its structural design that its reform is unachie1able(
1
The Stei5er Committee re/ort as it came to be called has made the 7LI withdraw the
sti/ulation on ca/ital /unishment from its Model 3enal Code(
The Model 3enal Code sti/ulation on death /enalty which was incor/orated in 18C. was
a significant /eg of the BS Su/reme Court decision in 5regg v. 5eorgia
.
, wherein the
Court reaffirmed the constitutionality of the death /enalty in the Bnited States( The BS
Su/reme Court cited the Model 3enal Code /ro1ision to illustrate that there are ways to
achie1e constitutionally secure death sentences( The Stei5er Committee notes the failure
of the reform initiati1es in relation to administration of the death /enalty in following
terms)
?The foregoing re1iew of the unsuccessful efforts to constitutionally regulate the
death /enalty, the difficulties that continue to undermine its administration, and
the structural and institutional obstacles to curing those ills forms the basis of our
recommendation to the Institute( The longstanding recognition of these underlying
defects in the ca/ital 6ustice /rocess, the inability of e2tensi1e constitutional
regulation to redress those defects, and the immense structural barriers to
meaningful im/ro1ement all counsel strongly against the InstituteKs underta5ing a
law reform /ro6ect on ca/ital /unishment, either in the form of a new draft of S
.1'(C or a more e2tensi1e set of /ro/osals( 4ather, these conditions strongly
suggest that the Institute recogni9e that the /reconditions for an ade>uately
41
8e$ort of the Council to the Mem*er%hi$ of the ;merican 7a3 !n%titute on the matter of the Death Penalt), 4
(200:), availa*le at htt$+,,333.ali.or2,doc,Ca$itar,o20Puni%hment?3e*.$df. (7a%t vi%ited on 14.05.2014)
42
428 <.. 153 (1:46)
31
administered regime of ca/ital /unishment do not currently e2ist and cannot
reasonably be e2/ected to be achie1ed(D
It is to be noted that as/ects of ?the rarest of rareD doctrine as /ro/ounded in Ba"han
Singh were also ins/ired by the 7LI Model 3enal Code /ro1ision on death /enalty( $ow
that the Model 3enal Code /ro1ision itself stands withdrawn, it is im/erati1e that a
similar study to assess the fitness of Indian system of death /enalty against the
constitutional standards is also underta5en( 3resent attem/t by the Law Commission to
study the constitutional regulation of death /enalty amongst other related issues, to that
e2tent, will fill an im/ortant academic 1oid on this issue(
Pa'" VI( I%4!"!%0 I%$"& /)' "he P'e&e%" S"$*-
In the light of the aforementioned, the issue of ca/ital /unishment /ro1ides the Law
Commission a 1ery rich research terrain to engage with( The commission /ro/oses to
collect death /enalty related data from 1arious Trial Courts, High Courts and the
Su/reme Court( 3rison authorities will also be re>uested for data on death row
conditions( The commission may also in1ol1e 1arious law schools to conduct >ualitati1e
and >uantitati1e research on 1arious death /enalty themes(
This research /ro6ect, therefore, is timely and much needed to ma5e the /ublic debate on
this much contested theme more informed, robust and reasonable( Towards achie1ing this
ob6ecti1e, the commission through this consultation /a/er reaches out to a wider
community of concerned citi9ens to elicit their 1iews on this issue( 7 >uestionnaire is
also being attached as an aid which will /ro1e to be hel/ful to those who may want to
e2/ress their 1iews on 1arious as/ects of death /enalty(
D$e&"!)%%a!'e )% Ca!"a# P$%!&hme%"
32
1( 7re you in fa1our of retaining ca/ital /unishment on the statute boo5Q ;If in
fa1our of retention, /lease see T(. H +( If not in fa1our of retention, /lease see
T(=
.( If you are in fa1our of retention of ca/ital /unishment, /lease indicate your
reasons for the same &
a= Ca/ital 3unishment acts as a deterrent for future crimes
b= 4etribution through death /enalty is the most effecti1e means of achie1ing
6ustice for the 1ictim and /ro1ide closure to the 1ictim/1ictimGs family and
society
c= Ca/ital 3unishment ensures that the con1icts are ne1er released bac5 into
society as they may /ose a threat in future
d= Ca/ital /unishment reduces the chances of con1icts esca/ing from /rison
e= Those accused of ca/ital crimes do not deser1e an o//ortunity for reformation
f= The se1erity of a crime should mandate an e>ually se1ere /unishment
g= Ca/ital 3unishment ensures 6ails are not o1er/o/ulated/o1ercrowded as the
current /rison infrastructure is inade>uate to accommodate too many /risoners
for life
h= Ca/ital 3unishment may im/ose less financial burden on the State as the cost
of im/risoning someone for life may be higher
i= 7ny other reason(
+( @hich of the abo1e arguments in su//ort of death /enalty is the strongestQ
a= %eterrence
b= -ustice
c= Satisfaction of effecti1e /unishment being deli1ered for 1ictim/1ictimGs
families
d= Cost
33
( If you are in fa1our of abolition of ca/ital /unishment, /lease indicate your
reasons for the same &
a= There is no conclusi1e /roof that ca/ital /unishment acts as a deterrent for
future crimes
b= Ca/ital /unishment im/oses hardshi/ and trauma for the con1ictGs family who
may ha1e had no role in the crime
c= Ca/ital /unishment confuses the idea of retribution with 6ustice and society
must mo1e away from the conce/tion of Fan eye for an eyeF
d= Ca/ital 3unishment de/ri1es /eo/le of the o//ortunity to reform
e= Most countries ha1e abolished ca/ital /unishment
f= The im/osition of ca/ital /unishment is not free from ris5 as there is a chance
of innocent /eo/le being sentenced to death
g= The a//lication of ca/ital /unishment is too 6udge centric and de/ends on a
6udgeGs /ersonal belief against or in fa1our of death sentence
h= Economically and socially bac5ward grou/s will always ha1e greater chance of
being sub6ected to ca/ital /unishment than the rich
i= Ca/ital 3unishment is a form of state s/onsored 1iolence
6= The mode of e2ecution i(e( hanging by the nec5 until death is cruel
5= 7ny other reason (
0( In your o/inion, can the sentence of life im/risonment as an alternate to ca/ital
/unishment achie1e the arguments mentioned in T. ;if there is a stringent and
/eriodic system of re1iew of all /risoners before granting
remission/re/rie1e/commutation=Q 3lease indicate why(
C( The recent Criminal Law ;7mendment= 7ct, .'1+ introduces ca/ital /unishment
for the re/eat offence of ra/e ;Section +ACE=( Should ca/ital /unishment e2tend to
non&homicide offencesQ 3lease indicate your reasons for the same(
34
A( In your o/inion, is the crime of murder as se1ere and abhorring as an act of
terrorismQ
:( Is it /ossible to di1ide murders into different categories for the /ur/ose of
sentencing, such that &
a= Murders /unishable with death
b= Murders /unishable with life im/risonment
If so, what murders would you include in category a=Q
8( %o you subscribe to the 1iew that under normal circumstances the /unishment of
life im/risonment is ade>uate for murder but under aggra1ating circumstances, the
Court may award death /enaltyQ
1'( Is it /ossible to di1ide offences into different categories for the /ur/ose of
sentencing, such that &
a= Terror ,ffences
b= $on terror ,ffences
If so, do you thin5 ca/ital /unishment should be retained for category a= and
abolished for category b=Q
11( %o you thin5 the e2isting framewor5 of /olice in1estigation and collection of
e1idence is full /roof and guarantees 9ero room for erroneous con1ictionsQ
1.( In your o/inion, should crimes mandating ca/ital /unishment re>uire a higher
burden of /roof o1er and abo1e /roof beyond reasonable doubtQ
1+( %o you belie1e that ca/ital sentencing carries the ris5 of being 6udge centricQ
35
1( In your o/inion, should there be a /ro1ision for rehabilitation of families of
criminals sentenced to deathQ
10( %o you agree with the current mode of e2ecution i(e hanging by the nec5 until
deathQ 3lease indicate why( 3lease suggest any other /referable mode of
e2ecution(
1C( In your o/inion, should mandatory guidelines be laid down for the #o1ernor and
3resident of India to e2ercise their /owers of granting mercy under the
Constitution of India in death /enalty cases(
36