JURISPRUDENCE

SENTENCING POLICY ON CAPITAL PUNISHMENT: JURISPRUDENTIAL ANALYSIS

Submitted to: Submitted by:

Prof. Upamanyu Sengupta Gopal Gour (2016020)

Amidst the vehement hue and cry over the desirability of the capital punishment in global
scenario where two third of the total countries have already abolished the death penalty1, India
still somehow maintains the standard of ‘rarest of rare’ case given under Bachan Singh case.2
It is evident from the various Supreme Court’s decisions that the Indian Judiciary, even after
thirty five years of the Bachan Singh Judgement, is still of the same view.3 The said standard
of ‘rarest of rare’ case was further developed, though in vaguer manner, by the Apex Court in
the case of Devender Pal Singh.4 It was said that when the collective conscience of the society
is sufficiently shocked by the crime, death penalty should be awarded irrespective of the
personal opinions with regard to the desirability of the said punishment.

As far as the implementation of the death penalty cases are concerned, Supreme Court has held
that to emphasise on the reformatory part of the punishment under § 235(2) that there has to be
a separate proceeding taking the social and personal nature of the accused into consideration at
the time of deciding the sentence.5 This step has been skipped by the judiciary in many of the
cases in presupposition of the scarce possibility of reformation. In the absence of the guidelines
to the sentencing policy of capital punishment by the legislators, judges rule according to their
subjective understanding and desirability of the death penalty. Justice P N Bhagwati in the
minority judgement of Bachan Singh case has stated the same in favour of abolishment of
capital punishment because of its subjectivity and arbitrariness.

Justice V. R. Krishna Iyer discussed the judicial hunch in imposing or avoiding the death
penalty. Unfortunately, these judges have always been in minority in the judgements and India

1
Lethal Lottery: The Death Penalty in India- A study of Supreme Court judgments in death penalty cases 1950-
2006, Amnesty International India & PUCL, 2008, p. 15.
2
Bachan Singh v. State of Punjab (AIR 1982 SC 1325).
3
Union of India and Ors. v. Devendra Nath Rai [(2006) 2 SCC 243], Machhi Singh and Ors. v. State of Punjab
[(1983) 3 SCC 470].
4
Devender Pal Singh v. State, N.C.T. of Delhi and anr. [(2002) 5 SCC 234]
5
Ediga Anamma v. State of Andhra Pradesh (AIR 1974 SC 799)
is still having the same structure of justice system. As Ronald Dworkin, critiquing the positivist
school of law, argued that justice is not only governed by the rules but also by the principles
which are interpretative, contextualised and value laden. Further, the role assigned to the judges
is only to find a theory or rationale which is in consonance and justified in the existing law.
The focus of Dworkin was not really on the whole of the justice system but it was on the judges’
interpretative activities in the law.

In the case of Machi Singh6, the standard of ‘rarest of rare’ cases was further developed and
net effect test of mitigating and aggravating circumstances was introduced. Since then, it has
become a tool for the judges to fit their notion of punishment in the existing structure of law.
This test can be easily manipulated by the judges who are in favour of capital punishment and
the ‘rarest of rare’ standard is always there for the judges who are against it. It is where the
concepts given by Dworkin and Joseph Hutcheson come into picture where they explain the
intuitive power or hunch plays an important role in deciding the final decision of a case.

There has been instances in which the judiciary has rendered altogether different decisions in
the similar situations. The reason for these anomalies inter alia is the subjective sentencing
policies which is prompted by the judges’ values, experiences, predilections etc. This was one
of the leading arguments of abolitionists who condemn the implementation of capital
punishment on the precepts of fundamental rights under article 14, 19 and 21 of the
Constitution of India. Joseph C. Hutcheson in his writing has identified four kinds of judgement
out of which intuitive judgement is the one in which the judge goes with his intuition, backed
by experience, and presupposes a decision in the mind and ultimately tries to justify the
intuition,

“…..wrestling in civil cases with that legal Robot, ‘the reasonably prudent man’,
in criminal cases with that legal paradox, ‘beyond a reasonable doubt’, would
hunch out just verdict after verdict by the use of that sixth sense, that feeling,
which flooding the mind with light, gives the intuitional flash necessary for the
just decision.”7

6
Machhi Singh and Others v. State of Punjab [(1983) 3 SCC 470]
7
Joseph C. Hutcheson Jr., Judgment Intuitive The Function of the Hunch in Judicial Decision, Volume 14 Issue
3 April 1929, Cornell Law Review, p. 277,
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article
=1282&context=clr
 “………I, after canvassing all the available material at my command, and duly
cogitating upon it, give my imagination play, and brooding over the cause, wait
for the feeling, the hunch-that intuitive flash of understanding which makes the
jump-spark connection between question and decision, and at the point where the
path is darkest for the judicial feet, sheds its light along the way.”8

The writings of Hutcheson and Dworkin suggest that the judgements are not purely rules
driven, instead they depend on various abovementioned factors. Especially in Death Penalty
cases, where the values, upbringing, experiences and discretion play a vital role in deciding the
person’s life or death. But a coin has two sides, on one hand there are abolitionist who argue
that it is arbitrary and against the fundamental right of right to life; and on the other hand, there
are people with is a practical argument who successfully defend themselves by saying that no
two cases can ever be same, and in that case it would be unreasonable to form an exhaustive
list of the parameters to decide the sentence.

Hence, according to Researcher’s view, both the stands have their own valid arguments and
one has to assess the arguments keeping in mind the plausibility. Even if there were a strict
exhaustive list of parameters of judging, there would be a strong possibility of injustice because
no matter how much efforts have been put in, all the prospective situations can never be thought
of.

8
Id, p. 278.