This article has been written by Ria Verma, a student at Symbiosis Law School, NOIDA. This article aims to analyze the landmark judgment of Bachan Singh v. Union of India and its aftermath.
This article has been published by Abanti Bose.
Recently, a 38-year old man was convicted for killing his mother and attempting to kill his neighbour as well. The Court considered the case to be ‘rarest of the rare’ and awarded him the death penalty. Another man was awarded the death penalty for committing the gruesome act of raping a minor girl and then killing her.
Capital punishment has been a topic of discourse since its inception. Would hanging the culprit justify their actions? Would there be deterrence in society and would the number of crimes be reduced? The answers to these questions are ambiguous.
Bachan Singh v. State of Punjab (1980) is a well-known landmark judgment credited for developing the jurisprudence pertaining to the death penalty. It examined whether the death penalty was in consonance with the provisions of the Indian Constitution.
The main issue that was addressed in this case was whether the procedure prescribed under Section 354(3) of Code of Criminal Procedure,1973 pertaining to sentencing the culprit is unconstitutional. The courts are vested with unguided discretion and it is completely up to them to ascertain whether the death penalty should be imposed or not.
This case has been widely regarded as a landmark judgment given by a bench consisting of 5 judges and is known for establishing the “rarest of the rare” doctrine applicable while determining whether the death penalty is to be awarded to the accused.
We need to address the question that whether 40 years after the judgment, the court successfully created a coherent basis for imposing the death penalty in India.
Death penalty in India
In India, the death penalty is imposed in case of murder, gang robbery coupled with murder, abetting the suicide of an insane person a minor, abetting mutiny by a member of the armed forces, and waging war against the government. Capital punishment is also awarded under anti-terror laws for those having a significant involvement in committing terrorist acts.
The general approach of the courts is to award the death penalty to the convicts in a murder case. As per the facts and circumstances of the case, it is scrutinized whether the case would fall under the ambit of ‘rarest of the rare’ cases.
Section 354(3) of the Code of Criminal Procedure
Section 354 of the Code of Criminal Procedure(CrPC), which was added to the Code in 1973 lays down the content and language to be provided in a judgment by the judge.
Section 354(3) states that “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence”. In simple words, Section 354(3) requires a judge to provide ‘special reasons’ when the convict is punished with death, life imprisonment, or imprisonment for a long tenure.
The sentencing follows conviction and is proportional to the degree and intensity of the crime committed. However, no straitjacket formula is applicable while sentencing the convicts.
Background of the case
There are quite a few judicial pronouncements before the Court gave the judgment in Bachan Singh, regarding whether the death penalty is in lieu of the Constitutional provisions.
In Jagmohan v. State of U.P (1972), the Supreme Court held that Articles 14, 19, and 21 that guarantee the Right to equality, freedom of speech and expression, and the Right to life; did not violate the death penalty. The facts, circumstances, and the nature of the crime committed would be the factors scrutinized by the judge when making the choice between awarding the death penalty or life imprisonment. Therefore, the decision of awarding the death penalty was made in accordance with the procedure laid down by law as required by Article 21.
In Rajendra Prasad v. State of U.P (1979), the Court held that unless it was shown that the individual is a terrible and continuing threat to social security, capital punishment would not be justified. Justice Krishna Iyer opined that the death penalty should be inflicted in the case of three categories of criminals:
(1) for white-collar offences,
(2) for anti-social offences, and
(3) for eradicating a person who is a threat to society, that is, a seasoned killer.
The Court also held that the death penalty for the murder offence awarded pursuant to Section 302 of the Indian Penal Code,1860 would not be a violation of the Constitutional provisions. In grave cases of extreme culpability, capital punishment can be awarded and the convict’s condition must be taken into account.
Provisions involved in the case
- Section 354 (3) of the CrPC, 1973.
- Section 302 of the Indian Penal Code, 1860.
- Article 14 and 21 of the Constitution.
Facts of the case
Bachan Singh was convicted for the offence of committing the murders of Desa Singh, Durga Bai, and Veeran Bai by the Sessions Court. He was given the death penalty under Section 302 of the Indian Penal Code. He appealed in the High Court, however, the Court dismissed his appeal and upheld the death sentence.
He then appealed to the Supreme Court and raised the question of whether the facts of the case would fall under the ambit of the ‘special reasons’ under Section 354(3) of CrPC, 1973.
Prominent issues raised
- Whether death penalty that has been provided as the punishment for the offence of murder under Section 302, Indian Penal Code, 1860, is unconstitutional?
- Whether the sentencing procedure stipulated in Section 354(3) of the CrPC, 1973 is unconstitutional insofar as it vests the courts with unguided and untrampled power, and allows the death sentence to be imposed arbitrarily on an individual found guilty of any offence punishable with death or life imprisonment?
Contentions of the petitioners
The petitioner raised the contention that the death penalty awarded for the offence of murder mentioned under Section 302 of IPC violates Article 19 of the Indian Constitution. The death penalty puts an end to all the freedoms guaranteed under Article 19(a) to (g). No social purpose is served by the death penalty and it does not fall under the purview of unreasonable restriction.
Contentions of the respondents
The respondents contended that an individual must own property in a way that does not infringe the rights of another individual, that is, the principle of sic utere tuo ut alienum non laedas. They further contended that the rights guaranteed under Article 19 are not absolute in nature and are subject to certain reasonable restrictions.
The Supreme Court dismissed the appeal in accordance with the majority opinion. The Court dismissed the challenge to the constitutionality of Section 302 of the IPC in so far as it prescribes the death sentence, as well as, the constitutionality of Section 354(3) of the CrPC, 1973 was rejected.
Analysis of the judgment
In the landmark judgment of Maneka Gandhi v. Union of India (1978), the scope and the interrelationship between Articles 14, 19, and 21 were given a new dimension. It was held that every law of punitive detention must pass the test of all three articles, both in the procedural and the substantive angle.
In A.K. Gopalan v. The State of Madras (1950), all the six learned judges were of the opinion that if the accused was awarded punitive detention or imprisonment after being convicted of committing an offence under the Indian Penal Code, it would be beyond the scope of Article 19.
The Supreme Court dismissed the challenges regarding the constitutionality of Section 302 of IPC and 354(3) of CrPc. The Court further opined that the six fundamental rights guaranteed under Article 19(1) are not absolute in nature.
Firstly, they are subject to restrictions emanating from an obligation of an individual to not use their rights in a way that injures or infringes the rights of the other members of society. This is based on the maxim sic utere tuo ut alienum non laedas, that is, an individual using their property in a manner that does not infringe the legal rights of another individual.
Secondly, under Clauses (2) to (6) of Article 19, these rights are expressly mentioned to be subject to the power of the state, which can impose certain reasonable restrictions. These restrictions could extend to prohibiting the exercise of these rights in special circumstances.
Another issue is whether the courts have untrampled power in imposing the death penalty, and the nature and extent of the special reasons. The expression ‘special reasons’ as stated in Section 354(3) of the CrPC means exceptional reasons owing to the grave nature of the crime. The Apex Court laid down the doctrine of ‘rarest of the rare cases’ in awarding the death penalty. Life imprisonment is the rule, and the death sentence is awarded as an exception for those convicted for murder. Exercise of discretion under Section 354(3) of CrPC, 1973 would be exceptional. The death penalty would be awarded only in crimes that shake the collective conscience of society. The imposition of the death sentence should only be in the rarest of rare cases.
Justice Sarkaria stated the following points in the judgment:
(1) The extreme death penalty can be inflicted in the gravest cases of extreme culpability.
(2) Along with the facts and circumstances of the offense, the circumstances of the offender must be taken into account. The court must scrutinize both the crime as well as the criminal, and then decide whether life imprisonment is to be awarded or the death penalty. Accordingly, the presence or the absence of ‘special reasons’ must be established. Emphasis is to be laid on the aggravating and mitigating factors which are dependent upon the facts and circumstances of the case.
A few parameters were suggested by Dr. Chatale in the judgment for ascertaining ‘aggravating circumstances’. He drew inferences from the American penal statutes framed after Furman v. Georgia (1972), in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill that was passed in 1978 by the Rajya Sabha (but was not ultimately enacted). The parameters are as follows:
(a) The murder was pre-mediated and involved extreme brutality; or
(b) The murder involves exceptional depravity; or
(c) A member of any of the armed forces of the Union, or a member of any police force, or any public servant was murdered, while the member/public servant was discharging their duties;
(i) The public servant was discharging their duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of the murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had assisted a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
He further suggested a few mitigating circumstances that the Court should take into account as per their discretion:
(1) The offence was committed by an individual who was extremely mentally or emotionally disturbed.
(2) The age of the accused is to be taken into account. If the accused is a minor, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence that would act as a threat to the well-being of the members of the society.
(4) The probability that the accused can be reformed and rehabilitated. The State would need to prove that the accused does not fulfil conditions 3 and 4 by giving sufficient evidence.
(5) If the accused felt that he was morally justified in committing the act as per the facts and circumstances of the case.
(6) The accused acted under duress or was dominated by another individual’s will.
(7) The condition of the accused showed that he was mentally ill and because of the illness, he was not capable of understanding the criminality of his conduct.
Rule of law penetrates the entire fabric of the Indian Constitution. It does not include arbitrariness. Article 14 acts as a guarantee against arbitrariness and prohibits state action, whether legislative or executive, that suffers from a high level of arbitrariness.
Justice PN Bhagwati was of the view that Section 302 of the IPC in so far as it provides for the imposition of the death penalty as an alternative to a life sentence is ultra vires. It is unconstitutional and void since it is an infringement of Articles 14 and 21 of the Constitution and no legislative guidelines are laid down as to when life should be permitted to be extinguished by the imposition of the death sentence.
Another dissenting opinion was that it is difficult to answer the question of whether the death penalty serves any penological purpose. It is a difficult, complex, and intractable issue. There has been significant discourse on the purposes of the death penalty and whether it serves the purpose of deterrence. A large proportion of people, including sociologists, legislators, jurists, judges, and administrators, from the length and breadth of the country as well as the world, still have averse opinions towards the necessity of imposing capital punishment.
Further, in 1979, India acceded to the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations. India is committed to a policy for the abolition of the death penalty.
The Supreme Court dismissed the appeal in accordance with the majority opinion. It was held that the provision of the death penalty as an alternative punishment for the offence of murder under Section 302 of the IPC, in so far as it prescribes the death sentence; as well as the constitutionality of Section 354(3) of the CrPC, 1973, is neither unreasonable nor is it against the public interest. It is constitutionally valid and does not violate the letter nor the ethos of Article 19 of the Constitution.
Judiciary’s stance after Bachan Singh
In the case of Mithu v. State of Punjab (1983), the mandatory death sentence under Section 303 of IPC was declared unconstitutional and removed from the Code. This Section stated that any criminal who has been sentenced to life imprisonment, committed a murder while in custody would be sentenced to death. An interpretation of this Section can be that the culprit is beyond reformation and does not deserve to live.
In Machhi Singh v.State of Punjab (1983), the Court elucidated the doctrine of ‘rarest of rare.’ The Court laid down certain guidelines pertaining to the parameters to be considered when deciding whether a case falls under the purview of the ‘rarest of the rare’.
The guidelines are as follows:
- Modus operandi: The Court stated that if the crime committed is extremely brutal and heinous that it shocks the collective conscience of the society, it would fall under the purview of the ‘rarest of the rare’ cases. A well-known example of this would be the Nithari killings. The culprit was recently held guilty of murder, attempted rape, abduction, and destruction of evidence and awarded the death penalty.
- The motive for committing the crime: When the crime is committed using a deliberate design to kill the victim brutally, or assassins are hired to torture and kill the victim, or the act is done to betray the nation, it would fall under the purview of ‘rarest of rare’ case.
- The severity of the crime: The gravity of the crime must be taken into account. For example, murdering every member living in a particular locality or all the members of a family.
- Victim of the crime: If the victim of the crime is vulnerable, that is, a minor, a senile person, an insane person; or the victim is an influential figure that has received much love from society, the crime would then also fall under the purview ‘rarest of the rare’ case.
- Balance sheet: A balance sheet must be prepared taking into account the aggravating and mitigating circumstances of the case. The mitigating circumstances have to be given full weightage and a balance must be struck between the aggravating and the mitigating circumstances, before making the final decision.
Aftermath of the case
It is often argued that the ambiguities present in Bachan Singh’s case have led to the absence of significant criteria for imposing the death penalty. A number of reiterations of the case have arisen that are not in consonance with the actual judgment.
The central argument against the framework given in Bachan Singh’s case is the lack of normative clarity. It does not clearly explain the interrelationship between the aggravating and mitigating factors. A number of factors and parameters are considered such as age, mental state, and the socio-economic background of the culprit. The judges have the discretion to fill this normative gap while giving sentences in the future, with their own considerations.
Further, the procedural fairness of sentencing proceedings has been significantly impacted due to the lack of a theoretical framework developed in Bachan Singh’s case
One major argument in the Bachan Singh case was that only 18 states have abolished the death penalty. The current situation is much different than it was then. In 2019, Amnesty declared that 106 countries discontinued the death penalty in law for all the crimes, and 142 countries (more than two-thirds of the total countries) had put an end to imposing the death penalty in law or practice. India is one of the very few countries that are yet to abolish the death penalty.
In Bachan Singh’s case, the majority was of the opinion that the death penalty would act as a deterrent to murder. A number of surveys and statistical reports have suggested that the death penalty does not act as a deterrent. In 1988, a survey conducted by the UN was unable to provide any evidence to support the claim that executions were more of a deterrent than life imprisonment.
In Canada, the homicide rate was 23% lower than the previous year, after they abolished the death penalty in 1976. In a state-by-state analysis in the USA, it was found that during the 1980-2000s, the homicide rate in states which imposed the death penalty has been 48 per cent to 101 per cent higher than in the states without the death penalty.
Another issue is imposing the death penalty on innocents. For example, in the USA more than 184 prisoners since 1973 given the death penalty were exonerated or released on the ground that they were innocent.
In India, it is common to see biases in criminal investigations against marginalized religious communities or the lower caste or class groups. They are disproportionately subject to the death penalty. In 2015, the 262nd Law Commission Report called for the abolition of the death penalty for ordinary crimes. Activists continue to argue for abolishing the death penalty for all crimes. The constitutionality of the death penalty will continue to be challenged in courts and the Supreme Court will soon have to answer whether the absence of a political will is a sufficient ground to supersede an individual’s right to life.
The category of ‘rarest of the rare’ is always evolving. The Nirbhaya case violated collective conscience and clearly was under the scope of this doctrine. However, this doctrine is quite arbitrary, subjective, and discriminatory.
It is quite difficult to draw a line of distinction between a rare and an ordinary murder, and subsequently the rarest case. The crime is mostly described as heinous, grotesque and so on but it does not lay a clear line of demarcation. It is ultimately up to the judges to award the death penalty as per their values, sensitivity, and special reasons regarding the gravity of the crime.
In the Kathua rape case as well as the Unnao rape case, the facts and circumstances were quite brutal. However, the Courts did not award the death penalty to the culprits. It raises a pertinent question of whether a rare form of crime becoming common causes the courts to punish the culprits with life imprisonment instead.
It is the dire need of the hour to lay down an effective framework for awarding the death penalty, and contemplate whether the death penalty is in the interests of society.
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