Though the justice system in India is premised upon principles of reformative justice, capital punishment or death penalty is still prevalent in the Indian Penal Code. It is interesting however to note that the use of such punishment is rather restricted as a last resort when all other avenues of justice are closed. According to the Supreme Court of India, capital punishments can only be awarded in rarest of rare cases. However, since there is no standardisation of such a doctrine, therefore, the question of what amounts to rarest of rare is rather left to discretion of the judges. This in my view has led to an interesting trend with regards to the apex court’s approach to award death penalty. In this blog I will be analysing such trend.
Journey of death penalty throughout the ages in the Indian subcontinent
Ancient India witnessed several instances where death penalty has been awarded for numerous offences. Two major epics of India, i.e. Ramayana and the Mahabharata contain paradigms of death sentences granted against offences. The offenders in this period were punished with vadha-danda which means ‘amputation bit by bit’.
During the Mughal period, death sentence acquired its most gruesome form. The offenders in the Mughal period were made to wear tight robes made of freshly slayed buffalo skin and were thrown out under the scorching sun. Sunray caused the skin to shrink which afflicted severe pain and eventually caused the death of the offender. Contemporarily the Roman period observed the formation of a hierarchal ‘ladder’ of criminal penalties to define ‘their’ concept of punishment for different crimes. Death penalty (Poena capitis) headed the ‘ladder’ of punishments. Their way of awarding capital punishment was gruesome.
However, we can see a standardization of execution of death sentences being introduced through death of the convict by hanging during the British colonial rule. Such forms of executions are still followed by the modern Indian legal system.
Bachhan Singh to Dhananjay Chatterjee
Avenging the wrong done to us or our loved ones is the most basic instinct of human species isn’t it?
However the Indian justice system believes in reformative measure. Our judiciary looks out for ways to rehabilitate an offender and making them better individuals before reintroducing them into the society. Thus, judiciary usually opposes the principle of ‘eye for an eye and firmly believes in the inherent principle of ‘innocent until proven guilty’. Nonetheless, some existing laws authorize a judge to confer capital punishment to the offender, subject to some conditions.
In the case of Rajendra Prasad ETC. ETC. Versus State of Uttar Pradesh which was decided on 9th February 1979 the Supreme Court established the pros and cons of a death sentence. Let’s have a quick look into the facts of the case:
The accused in this case was previously convicted and had undergone a sentence of imprisonment for life. After his release, the accused showed the audacity to attack one Rambharosey and dealt several blows to his vital parts. He did not stop there and chased him to his house with a blood-stained knife, where he came across the deceased Mansukh. Upon the deceased request to stop assaulting Rambharosey, the accused chased Mansukh and killed him by inflicting repeated knife blows on him.
The court expressed that penal institutions lack success in tearing down the criminality within the criminal. Hence it is the sole cause of this cruel murder. The accused was awarded imprisonment for life in substitution of death penalty.
Constitutional validity of the death penalty surfaced before the Apex court in the case of Jagmohan Singh Versus State of Uttar Pradesh. It was argued that awarding death penalty equals to infringement of the fundamental rights of the convict. However the supremacy of the decisions of the Apex Court was upheld and the contention was dispensed with.
As alluded to in this article the Indian judiciary predominantly believes in reformative measures, death penalties are awarded in the rarest of rare cases. The doctrine of the ‘rarest of the rare’ case was canvassed by the Supreme Court in Bacchan Singh’s case. The Supreme Court stated that both the crime and the criminal must be taken into consideration while awarding death sentence.
One of the prime examples of ‘rarest of the rare’ doctrine is the case of Dhananjay Chatterjee Versus State of West Bengal. The accused, a security guard was convicted of raping and murdering a school girl in her building complex. The appeal of the accused was rejected. Furthermore, his plea for mercy was also rejected by the then Governor of West Bengal convict was hanged to death on 14th August 2004. This case created huge unrest among the people.
There were no eyewitnesses of the occurrences and the entire case rested on circumstantial evidence. In a case that is completely based on circumstantial evidence, the existence of motive assumes significance. Here there were oodles of evidence on record which insinuated that the offender had motive to commit the crime. The sordid episode of the security guard, whose duty was to ensure the safety of the inhabitants of the complex, makes the crime heinous when he pounded his lustful claw on the minor girl. The rape of a defenceless young girl by a security guard elevated this in to the realm of a ‘rarest of the rare’ case.
Dhananjay’s case is undoubtedly a trendsetter in the history of capital punishment in India, which designates the guidelines given in Bacchan Singh’s case as best suited even in the 21st century.
In my view this case is highly contentious. The decision has been heavily debated and criticised in several parlances. One aspect that has been in the limelight is that in absence of any direct evidences, can death penalty be awarded only upon circumstantial evidences?
Though sexual intercourse was proved in the case, yet the forensic report did not state it as a forced one. The timeframe of Dhananjay’s entry and exit from the victim’s apartment was not enough to commit rape and murder. In addition the witnesses states that while coming out of the apartment Dhananjay did not appear to be soiled or exhausted which is expected in a circumstance like the one stated in the case.
So, the other question is how low can we set the standards of our rarest of rare doctrine? With several unanswered questions the case truly is one of the landmark ones in context of capital punishments in India.
Is the trend sifting away from death penalty in the Supreme Court?
“We believe that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable”- Justice Krishna Iyer.
Analysing the recent approach of Supreme Court, it is seen that the court expects judicial system to examine those factors of the case which could help in commuting death sentences to life imprisonment. Further, a separate hearing for a capital sentence has been instructed to be held in order to reduce the disparity of judgments among the judges.
Supreme Court in its recent landmark ruling in 2022 has taken recourse to the spirit of the SC’s ruling in Bacchan Singh’s case. The court has made psychological evaluation of a sentenced prisoner obligatory before deciding if the gallows will be the befitting punishment for the convict.
This seems like an empathetic approach, as the court appears to be more inclined towards the mitigating circumstances of a matter which might leave some space for awarding less severe punishment to the convict.
If we conscientiously analyse the cases where Supreme Court has awarded death penalty, we would conclude that the court has mostly adhered to the humanitarian principle of “innocent until proven guilty’. Sentences of life imprisonment have rather been the preferred form of punishments awarded even in very serious crimes. In several instances, the apex court has commuted punishment of death sentences into a life imprisonment. The latest of the lot being the case of assassination of our former Prime Minister, Rajiv Gandhi.
However, one must remember that the Supreme Court has never treaded a linear motion when it comes to their approach regarding a doctrine. In 2021 alone at least 144 death penalty have been awarded by different courts across the country. The numbers were slightly lower than that of 2018 which saw a high of 162. While I refrain from making any for or against argument regarding capital punishment in this blog but I can’t help but wonder if the political climate of the country has anything to do with the judicial approaches regarding death penalty?
Now before some of you raise your voices regarding federalism and the independence of the honourable judiciary ….. I assure you that I do not intend to question the unquestionable. Admittedly there is daylight between the number of sentences awarded and that executed. Or it can also be argued that the numbers mentioned for years 2018 and 2021 show a cumulative figure for all the courts across the nation.
Yes … it does! But in my opinion the road to or away from death penalty in India seems to have become murkier than ever.
Let us know if you want us to analyse this issue in a future blog.
About the author:
I am Pritha Chowdhury a Final year student of LLM studying in Calcutta University, West Bengal. I have graduated in the year 2020 from Jogesh Chandra Chaudhuri Law College affiliated to the same.
Along with writing, which is my new found love, my utmost interest is in issues of Sexuality and Violence against women and Children.
Stars and Constellations fascinate me.
