The lack of adherence to precedents on the death penalty and the stark contrast in judicial opinion on its application makes a powerful case for its abolition. The Indian judiciary follows the common law doctrine of stare decisis, which means to stand by things decided and not to disturb settled points of law. Courts follow binding precedents as a matter of routine to maintain uniformity in decision making, interpret the law consistently, and steer clear of arbitrariness. However, an analysis of precedents vis-à-vis the death penalty paints a strikingly different picture. The mixed reasoning of judges surrounding its abolition and retention indicates a broken criminal justice system in which the supreme punishment of death is inflicted upon a selected handful of defendants by chance and caprice.
The journey of analyzing precedents in India begins in 1980 with the case of Bachan Singh v. State of Punjab, in which the Supreme Court upheld the constitutionality of capital punishment. In doing so, the Court framed three important rules. First, in deciding sentences, the majority held that aggravating and mitigating circumstances must be considered, both of the crime and the accused. Second, the Court opined that the death sentence must be imposed only in the “rarest of rare” cases where the alternative option of life imprisonment was “unquestionably foreclosed.” Third, and most significantly, it held that the burden was on the State to prove that the accused will pose a continuing threat to society, is incapable of reform or rehabilitation, and is hence deserving of the harshest form of punishment. Reformation as one aim of punishment assumes that accused persons are capable of change and can transform themselves into peaceful and productive citizens of society. Thus, the Court deliberately gave judges enough room to exercise discretion during the sentencing process and clarified that it was impractical to delineate a straightforward formula to apply capital punishment.
Three years later in Macchi Singh and Ors. v. State of Punjab, the Supreme Court deviated from its previous ruling by formulating a balance-sheet-like exercise of weighing in aggravating and mitigating circumstances, and awarding the death penalty if the former outweighed the latter. This resulted in highly varying outcomes as was evident in 2001, when the Supreme Court in Nemai Mandal and Anr. v. State of West Bengal commuted the death sentence of a man who had murdered two people in broad daylight as it did not fit within the “rarest of rare” framework. In doing so, the Court highlighted mitigating factors such as the young age of the accused, the criminal past of the deceased, and political rivalry. Yet, the lower court perceived the same set of facts as an unprovoked act of ruthless butchery with an aggravated form of cruelty when it confirmed the death sentence. In a prior decision, one judge in the 1994 ruling of Dhananjoy Chatterjee alias Dhana v. State of West Bengal even acknowledged the huge disparities in sentencing before confirming the death sentence, going so far as to say that some individuals get very harsh sentences while others receive sentences that are grossly inadequate for what are essentially equivalent crimes. Therefore, it came as no surprise when — in 2008 — the Supreme Court admitted that binding precedents had not been followed by courts uniformly in the ruling Swamy Shraddananda alias Murali v. State of Karnataka. It was clear then that the “rarest of rare” test had already failed to maintain a balance between guided judicial discretion and individualistic sentencing. Since then, the test has been further eroded. In the case of Shankar Kisanrao Khade v. State of Maharashtra in 2013, the Supreme Court opined that it was not the balance of aggravating and mitigating circumstances that must apply to a decision to rule in favor of the death sentence, but rather the “absence of mitigating circumstances favouring the accused.” The Court also noted that the “rarest of rare” test depended on society’s approval of the death sentence for certain types of crimes.
Such conflicts between death penalty judgments show how cases with similar facts have resulted in different sentencing outcomes. This subjectivity in judicial reasoning lies at the core of the sentencing process and raises the question of whether death penalty jurisprudence provides clear enough precedent to follow. One example of the use of unguided discretion can be found in the series of judgments in Ankush Maruti Shinde v. State of Maharashtra. In a trial of six persons that dragged on for nearly 13 years, the death sentence imposed by the trial court in 2006 was confirmed for three defendants by the Bombay High Court in 2007 and commuted for the remaining three. Later on an appeal to the Supreme Court in 2009, the Court confirmed the sentences of all six by relying on incorrect precedent that had been rendered per incuriam earlier, by the Court itself. While doing so, the Court also focused exclusively on the cruel, brutal and diabolic nature of the crime and the tender age of the defenseless victims (see Ankush Maruti Shinde and Ors. v. State of Maharashtra 2009) failing to give due consideration to the circumstances of the criminal (Bachan Singh v. State of Punjab 1980). Before the Supreme Court ultimately heard a review of its own decision in 2018, acknowledging its error and overturning its judgment (see Ankush Maruti Shinde and Ors. v. State of Maharashtra 2019), the six men acquitted had already been incarcerated for more than a decade and a half.
Almost immediately after delivering the final acquittal, the same bench blatantly ignored precedents while confirming the death sentence in a subsequent case, Khushwinder Singh v. State of Punjab 2019, once more emphasising the brutality of the crime and ignoring the possibility of reformation of the accused. Precedents have clarified that in order to satisfy the “rarest of rare” test, it is the responsibility of the court to provide clear evidence (Santosh Kumar Bariyar v. State of Maharashtra 2009) to show why the accused person is devoid of basic humanness (Sushil Murmu v. State of Jharkhand 2004) and should not be given a chance to change their ways and become a law-abiding citizen (Bachittar Singh v. State of Punjab 2002). This only goes to show how courts can twist precedents flowing from the “rarest of rare” test to suit their reasoning.
This growing trend in sentencing has resulted in binding precedents that now require courts to place particular emphasis on the heinousness of the crime and its impact on society’s “collective conscience,” diametrically opposite to the mandate of the Bachan Singh ruling. Recent statistics show that this has not just led to a rise in death sentences imposed by courts but also a growing number of legislative changes that have incorporated capital punishment for different offences, including non-homicidal offences.
A question that is often raised is whether capital punishment should be permissible when a unanimous decision is not forthcoming from a bench. In India, the answer seems to be in the affirmative. In the case of Ravi v. State of Maharashtra in 2019, one judge on the bench gave a dissenting opinion, and argued to commute the death sentence after considering mitigating factors such as the defendant’s young age and poverty. The judge specifically noted that in the absence of special reasons to show that the accused is incapable of reform, the “rarest of rare” test cannot be satisfied. This was blithely ignored by the majority. In fact, the constitutionality of capital punishment itself was upheld in the Bachan Singh ruling, by a majority of four judges, despite a fifth judge on the bench delivering a strong dissenting opinion.
Interestingly, even within a judgment that is considered to be the closest corrective reading of Bachan Singh, there lies an inherent contradiction. In this case, the Court observed that public opinion on the need for a harsher punishment is irrelevant to the counter-majoritarian role of courts while imposing the death penalty. Further, it held that a pre-sentencing hearing is mandatory to adduce detailed evidence about the socio-economic background of the accused, and to rule out the possibility of life imprisonment only if the convict is not fit for any kind of reformatory scheme. However, on the one hand, the Court noted that in most cases, “the death penalty is affirmed or refused to be affirmed without laying down any legal principle, and that principled sentencing has degenerated into judge-centric sentencing”. Concomitantly, it also held that “standardization of the sentencing process leaves little room for judicial discretion and tends to sacrifice justice at the altar of blind uniformity.” The former demands uniformity while the latter demands uniqueness, laying bare the indeterminacy that arises from the application of the “rarest of rare” test.
These examples raise serious concerns about the judge-centric imposition of capital punishment and the manner of exercising judicial discretion today. They are a telling story of the many conflicts and inconsistencies, not just between precedents, but also within the same judgment. Even if the legislature were to formulate guidelines to direct judicial discretion, the intrinsic flaws in the system will continue to impede fair application. The Supreme Court of South Africa summed up this argument in S v. Makwanyane and Another when it noted that “the differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges…by factors such as race and class… (are) almost certainly present to some degree in all court systems.”
The potential for reform is an integral part of death penalty sentencing, as it provides an accused person with one last opportunity to correct their ways, before depriving them of their life. However, in a country like India with varying socio-economic conditions and individual circumstances, poor quality legal assistance, and unique cultural norms, there is no way of accurately predicting a person’s ability to reform. Therefore, it is inevitable that in questions of life and death, the latter is unfairly meted out to the unlucky few.
When Justice Samuel Alito delivered the majority opinion in Glossip v. Gross — which upheld the use of lethal injections as a method of executing death row prisoners — he remarked that “because capital punishment is constitutional, there must be a constitutional means of carrying it out.” This flawed use of reverse logic is reflected in India’s death penalty jurisprudence today. In 1980, four judges of the Supreme Court laid down a test to put in place reasonable procedural safeguards while carrying out the death sentence. Little did they foresee that, 40 years later, courts would take lives in countless decisions using a convoluted and distorted version of that very test. This failure to strictly uphold those procedural safeguards is precisely what Justice Kurian Joseph recently alluded to while making a compelling case for the re-examination of the need for capital punishment in India in Channu Lal Verma v. State of Chhattisgarh in 2019. Its retention is a grim reminder of a justice system that wrongfully imports society’s retributive instincts into an arbitrary judicial process. If courts in the criminal justice system cannot consistently apply precedents while passing such a permanent punishment, perhaps that in itself is the strongest argument for its abolition.