Home case law Zakarius Lakra vs. Union of India (2005)

Zakarius Lakra vs. Union of India (2005)

September 26, 2024

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This article is written by Arkadyuti Sarkar. It discusses the landmark case of Zakarius Lakra vs. Union of India (2005) in detail. This case primarily dealt with awarding a death sentence to a minor. This article also discusses the concept of capital punishment and its history in India, along with the facts, issues, arguments, relevant laws, legal precedents, and decision of the court in the matter.

Table of Contents

Introduction

All punishments are awarded on the basis of the proposition that there must be a penalty for wrongdoing. There are two pivotal reasons behind awarding punishment: the belief that punishing the offenders will send a warning which could discourage others from committing the same wrong; and second, the notion that it is both right and just to punish a wrongdoer and make him suffer.

Awarding of capital punishment or death sentence has always been a controversial issue across the world, and hence, there have been arguments both in its favour and against it. Presently, the death penalty is not used in 112 countries. 4 nations, that is, Kazakhstan, Papua New Guinea, Sierra Leone, and the Central African Republic, have completely abolished it, while Equatorial Guinea and Zambia award it only under exceptional circumstances. Except in some nations, however, the death penalty is never awarded to minors, that is, an individual below 18 years of age.

Coming to India, capital punishment has always been an integral part of its judicial mechanism. With the surge in the human rights movement in the country, the morality of capital punishment is greatly questioned. On the other hand, according to many, keeping an offender alive at the cost of the lives of innumerable societal members or potential victims is unbelievable and morally wrong.

Issues concerning the death penalty become more sensitive when the offender is a minor. Zakarius Lakra vs. Union of India (2005) is a case that dealt with awarding capital punishment, particularly to a minor. Now, before discussing this case in detail, it is necessary to conceptualise capital punishment or the death penalty in brief.

What is capital punishment

Capital punishment (also known as the death penalty) means executing an offender as ordered by the appropriate court of law in relation to some criminal offence. Capital punishment should not be confused with extrajudicial executions carried out by the executive branch in absence of due legal process.

Capital punishment refers to the most severe type of punishment which is awarded to an offender for committing the most heinous, grievous, and detestable crime against humanity. While the definition and extent of such crimes may differ based on nations, state, age, etc., capital punishment has always been referred to as the death sentence.

History of capital punishment in India

Carefully scrutinising the debates in the British-India’s assembly reveals that no issue about the death penalty was raised until 1931, when one of the members, Sri Gaya Prasad Singh, sought to introduce a bill for abolishing the death punishment for the offences under the Indian Penal Code, 1860 (now changed to Bharatiya Nyay Sanhitha). However, the motion failed, since according to the then Home Minister, Sir John Thorne, the British Government did not think it wise to abolish capital punishment for any type of crime for which the same was provided.

After independence, India retained several laws of the British colonial government, which mainly included the Indian Penal Code of 1860 (hereinafter referred to as the IPC) and the Code of Criminal Procedure of 1898 (now Bharatiya Nagarik Suraksha Samhita) (hereinafter referred to as the CrPC).

The IPC provided for six punishments, including the death penalty, that were legally enforceable. For offences where the death penalty was an option, Section 367(5) of the CrPC, 1898 necessitated that courts record the reasons behind deciding not to impose a capital punishment if the concerned offence was punishable with death. In 1955, the Parliament repealed this Section, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.

The CrPC was re-enacted in 1973, and several amendments were made, especially to Section 354(3), by which the courts were now required to state the reasons for awarding life imprisonment or special reasons in case of the death penalty for an offence which is subject to such punishments.

These amendments further incorporated the possibility of a post-conviction hearing on the sentence, including that of death, under Section 235(2). Here, the judge was mandated to hear the accused on the question of sentence and pass necessary sentences according to law, unless such accused proceeds according to provisions of Section 360 (order to release on probation of good conduct or after admonition).

Concerning the awarding of a death sentence, the Union government has maintained to keep the death penalty as a deterrent in its statute books, and to societal threats, the Supreme Court has upheld the constitutional validity of capital punishment in its “rarest of rare” doctrine. The Supreme Court had laid down some broad and illustrative guidelines in the landmark case of Bacchan Singh vs. the State of Punjab (1980) and propounded the rarest of the rare doctrine. Although there exists no statutory definition of ‘rarest of rare’ it relies mainly on the facts and circumstances of a specific case, brutality of the concerned crime, behaviour of the offender, prior criminal history of the offender, etc.

There is no statutory definition of ‘rarest of rare’. It depends upon the facts and circumstances of a particular case, brutality of the crime, conduct of the offender, previous history of his/her involvement in crime, and the chances of improving and combining him/her into the death penalty. This has always been a disputable issue all over the world.

From the case of Bachchan Singh, the following propositions emerged:

The extreme step of imposing a death penalty shall not be applied except in cases involving extreme conviction.
Before awarding a death penalty, the circumstances of the offender should be considered.
Life imprisonment is the rule, while the death penalty is an exception.
A balance sheet containing all the stimulating and mitigating conditions in full should be emphasised for balancing between them.

Now, after establishing a brief picture as to the position of the death penalty in the Indian legal scenario, let us delve into the details of the present case.

Facts of the case

The petitioners, that is, the parents of the convict (appellant), who was awarded a death sentence by the Additional Sessions Judge, Dehradun, sought a writ petition before the Hon’ble Supreme Court against the sentence which was previously upheld by the Uttaranchal High Court and also the Supreme Court.
They filed the writ petition under Article 32 (remedies for enforcement of rights conferred by this part) of the Indian Constitution and questioned the legality of the death sentence awarded by the Apex Court. According to them, the convict was a juvenile boy, born on 4th December, 1980, and hence was a minor on 15th November 1994, which was when the offence was committed. They further adduced two documents to endorse their claims.
The documents were issued by a school authority of the State of West Bengal and were dated 28.4.2001 and 2.8.2002, respectively. However, they were not produced before the Court during the hearing of appeal previously.

Laws involved in the case

Various laws and legal principles are considered and analysed by a court during a case, which may depend on the facts and circumstances of the case. In this case, the following legal principles were involved:

Section 313 of the Criminal Procedure Code, 1973

Section 313 of the CrPC (now, Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023) enshrines the provisions as to the power of a court to examine an accused in relation to any offence.

In every inquiry or trial, the court, for enabling the accused to personally explain any circumstances appearing against him in the evidence,

May put forth any necessary questions to the accused, at any stage of the trial, without any previous warning;
Shall question the accused generally on the case, after the prosecution’s witness has been examined and called on for his defence. Further, such questioning can be dispensed at the discretion of the court if the personal appearance of the accused has been excused.

The accused shall not be administered to any oath while being examined, as under Section 313(1).
The accused shall not be punished for refusing to answer any such questions or providing false answers.
The answers provided by the accused may be considered in such an inquiry or trial and adduced as evidence for or against him in any other inquiry or trial concerning any other offence, which such answers may implicate him in.
The court may seek the help of both the public prosecutor and the defence counsel for preparing such questions and may allow the accused to tender a written statement in compliance with this Section.

Section 22(1) of the Juvenile Justice Act, 1986

Section 22(1) of the Juvenile Justice Act, 1986 provided that a juvenile delinquent shall not be awarded the death sentence or imprisonment due to default of payment of a fine or security. However, a juvenile of at least 14 years of age can be sent to a special home upon commission of a serious offence if the Juvenile Court deems the same as necessary.

Article 21 of the Indian Constitution

According to Article 21 of the Indian Constitution, no person shall be deprived of his life and personal liberty except as per procedure established by law. In simpler words, this provision of the Indian Constitution guarantees to the Indian citizens that their right to life and liberty shall not be compromised except by the State without following legally established constitutional procedure. Coming to the awarding of a death sentence, especially with regards to a minor, is an apparent blow to the right to life guaranteed under Article 21 unless sanctioned by a proper judicial scrutiny. Hence, this provision was also raised by the petitioners in this case for judicial scrutiny.

Article 22 of the Indian Constitution

Article 22 provides protection against arrest in certain cases. In brief, such protection includes informing the arrestee or detainee about the grounds for such arrest or detention and the right of the arrestee or detainee to consult and be defended by any legal practitioner of his choice. This Article further provides the right of an arrestee to be produced before the nearest magistrate, within 24 hours. No person can be held in custody for a period longer than what is prescribed without the permission of the magistrate.

Contention of the petitioners

The petitioners contended that the accused was a juvenile on the date of the commission of the crime. To endorse this claim, they presented the school documents of the accused, which stated that his date of birth was 4th January, 1980.
The learned counsel for the petitioners stated that they did not seek to reopen the trial to set aside the conviction. They primarily wished to change the sentence of death to that of life imprisonment instead. The counsel also stated that the authenticity of the documents provided by them could be verified by the court or any other authority.
The convict (appellant) had also filed a review petition, bringing up the issue of age. One of the grounds mentioned in this review petition was that the documents provided to prove the convict’s age, which led to the dismissal of the petition.
The learned counsel of the petitioner referred to the cases of Raj Singh vs. State of Haryana (2015) and Gopinath Ghosh vs. State of West Bengal (1983), wherein the court allowed the plea of a juvenile of the convict and provided appropriate remedies. They also pointed to the case of Ram Deo Chauhan & Raj Nath Chauhan vs. State of Assam (2000), wherein the judiciary had adopted a liberal approach and had opted to provide benefit of age, even though the convict had not been proven to be a juvenile, can be provided on the ground due to uncertainty as the convict was in the borders of the age and therefore awarded him life imprisonment as an alternative.

Issues raised in the case

The issue for the Apex Court to decide in this case was whether the death sentence imposed on the convict could be quashed on the ground that he was a juvenile on the date of commission of the offence?

Judgement in Zakarius Lakra vs. Union of India (2005)

The Supreme Court considered all the legal provisions and precedents that were used in this matter and adjudged that, in line with the decision of the court in Rupa Ashok Hurra vs. Ashok Hurra (2002), the concerned petition was non-maintainable under Article 32 of the Indian Constitution. The court considered that the appropriate remedy would be filing a curative petition, as per the procedure indicated in the cited case. Accordingly, the court allowed the petitioners to convert the writ petition into a curative petition by incorporating required amendments and following the due legal process.

Relevant judgements referred in the case

Raj Singh vs. State of Haryana (2015)

In this case, the accused/appellant, along with two other co-accused, had murdered the complainant’s brother and also injured others. The Sessions Court convicted these three accused, following which they appealed before the Punjab and Haryana High Court, wherein the decision of the Trial Court concerning the appellant was upheld, while the other two co-accused were acquitted. Therefore, the appellant approached the Supreme Court, which held that the High Court had rightly decided that the complainants had acted within the scope of their self defence and that it was the appellants who had exceeded their right. Further, although the place of occurrence was initially the complainant’s, the same was changed to that of the appellant’s after a gap of 3 to 4 days, which made it clear that the appellants were the actual aggressors. The appeal was dismissed and the conviction of the appellant was upheld.

Gopinath Ghosh vs. State of West Bengal (1983)

In this case, the appellant, along with the other two accused, was convicted by the learned Additional Sessions Judge under Section 302 of the Indian Penal Code (punishment for murder read with Section 34 (acts done by several persons in furtherance of common intention.. Now, Section 103 of Bharatiya Nyay Sanhita, 2023), read with Section 3(5) Bharatiya Nyay Sanhita, 2023) for murdering the victim on 19th August, 1974. The appellant and the two other co-accused appealed before the Calcutta High Court, wherein a division bench held that the offence against the appellant was established and the Sessions Court had rightfully convicted him for the same, while acquitting the other two co-accused. The appellant thus preferred a special leave petition before the Supreme Court of India and claimed minority of the accused on the date of commission of the offence.

After the Apex Court determined that the accused was indeed a minor at the date of commission of the offence, it also observed that the fact of minority of the appellant was never raised anywhere, neither before the Sessions nor before the Calcutta High Court. However, considering the fact that the minor was indeed a juvenile delinquent at the date of commission of the offence, they set aside the conviction of the appellant and returned the same to the sessions court for disposal according to law.

Ramdeo Chauhan vs. State of Assam (2000)

In this case, the appellant was charged under Sections 302 (now, Section 103 of Bharatiya Nyay Sanhita, 2023) and 326 of the Indian Penal Code (voluntarily causing grievous hurt by dangerous weapons or means). Now, Section 116 of the (Bharatiya Nyay Sanhita, 2023) for murdering four family members and was also charged with inflicting serious injuries to two of them with a sharp weapon. The accused was convicted by the Trial Court. He appealed before the Gauhati High Court, which upheld the conviction. Hence, the accused appealed before the Supreme Court.

The Apex Court went through the contentions, memos, records, and other various circumstantial evidences of the case. The court also referred the appellant for psychological assessment and observation to determine his mental state, which was then found normal. They upheld the conviction and sentence passed by the Trial Court and the High Court of Guwahati.

In this case, Justice R.P. Sethi and Justice Phukan concurred that though this matter was beyond review, since the issue was concerned with the death sentence, they decided to determine whether the benefit of age can be given even if the offender was found to be close to the threshold of juvenility.

Justice Thomas emphasised that the death penalty should not be imposed if there was any reasonable doubt regarding whether the offender was a juvenile or not. He reasoned with a legal principle, which states that only if the alternative of life imprisonment is undoubtedly ruled out, death penalty should be given. Justice Thomas contended that the death penalty could not be justified in this case, as the age of the offender was not above the juvenile limit, and further argued that the sentence should be reduced to life imprisonment.

Rupa Ashok Hurra vs. Ashok Hurra (2002)

This is a landmark judgement which introduced the provision of curative petitions in India. The case was concerned with matrimonial discord between a husband and wife, who had been separated for years, and ultimately reached the Supreme Court as the woman withdrew her consent that she had initially given for the divorce.

The substantial question of law was whether an aggrieved person would be entitled to any relief against a final order or judgement delivered by the Supreme Court after it has dismissed a review petition under Article 32 or otherwise.

A 5 judge constitutional bench delivered this judgement, which opened a new dimension in the nation’s justice delivery mechanism. The court listed several conditions that are to be followed while moving a curative petition before it:

The grounds for the petition must have been mentioned in the review petition.
The curative petition requires certification from a senior advocate, declaring the satisfaction of all requirements.
In the case of a meritless and vexatious petition, the court may impose exemplary costs on the petitioner.
The petition must be circulated to a bench of 3 of the senior most judges and before the judges who passed the concerned judgement. Only if a majority of the judges conclude that the matter must be heard, then it can be listed and preferably before the same bench.

Conclusion

This was a case concerning the minority of an offender, wherein the age of the offender was not revealed until the matter went before the Supreme Court. The court considered all the facts, legal provisions, and various precedents to conclude that the case was non-maintainable under Article 32 of the Constitution. However, the court further observed that since the matter was concerned with the death sentence and the minority of the offender, a curative petition can be filed for the same.

This case, therefore, serves as a precedent wherein the Apex Court reiterated that the minority of an offender is a crucial point of consideration in a criminal case, especially when the death penalty is in question. Capital punishment continues to be a highly disputed issue, bringing up questions of human rights and justice. Some find it to be a suitable punishment for the most severe crimes, while others stand against it.

Frequently asked questions (FAQs)

What is meant by capital punishment?

Capital punishment, or the death penalty, refers to the execution of an offender, awarded by an appropriate court of law. Such punishment is usually concerned with criminal offences, which are the most heinous, grievous, and detestable crimes against humanity.

Is capital punishment banned in India?

Despite being a debatable topic, capital punishment is still awarded and carried out in India, often in cases involving terrorism, murder, rape, etc.

Can a minor be punished with capital punishment?

Capital punishments have rarely been awarded to a minor in India. However, after the Nirbhaya judgement, the criminal law amendment allows a minor to be subjected to trial as an adult in cases involving the rarest of the rarest offences.

What is a review petition?

A review petition is a means for the parties to pray to the Supreme Court to review an order or judgement made by it. Through this petition, the court can modify a judgement, on the following grounds:

Availability of new information or judgements.
Clear mistakes apparent from the record.
Any other sufficient reason.

What is a curative petition?

A curative petition is a legal recourse used by the Supreme Court to correct the miscarriage of justice in case a review petition has been dismissed. The judgement in Rupa Ashok Hurra vs. Ashok Hurra (2002) reiterated this. A curative petition permits the Apex Court to review its own judgements.

What are the guidelines for filing a curative petition, and what constitutional provision provides for the same?

Article 137 of the Indian Constitution provides for curative petitions. The following are the guidelines for filing a curative petition before the Supreme Court:

The grounds of the petition must have been mentioned in the review petition.
The curative petition requires certification from a senior advocate declaring the satisfaction of all requirements.
In the case of a meritless and vexatious petition, the court may impose exemplary costs on the petitioner.
The petition must be circulated to a bench of 3 of the senior most judges and before the judges who passed the concerned judgement. Only if a majority of the judges conclude that the matter must be heard, then it can be listed and preferably before the same bench.

References

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Zakarius Lakra vs. Union of India (2005)

Introduction