By – Aasmi Bali

Abstract

This article examines the extent of judicial discretion in India’s death penalty sentencing and questions how justice may truly be served when the results are so indeterminate. It attempts to analyse the constitutional tensions generated by such sentencing procedures, which cut across Articles 14 and 21, the rights enshrining equality before the law and the right to life. The article brings out the shortcomings of the ‘rarest of rare’ doctrine laid down in Bachan Singh v. State of Punjab, with its great, undefined nature and erratic application. It also looks at the 262nd Law Commission Report’s recommendation for the abolition of the death penalty, except in the case of terrorism. Considering international human rights standards, the article thus argues for the unconditional abolition of capital punishment or at least for such reform that will ensure its consistency and constitutional fairness.

Introduction

The implementation of capital punishment in India is influenced predominantly by judicial discretion that, devoid of rigid principles, is a major challenge to the constitution. When the same set of facts produces opposite results in various courtrooms, then an outstanding question arises: can justice thrive in that kind of inconsistency? In this article, the writer examines why arbitrary death sentencing is inconsistent with Articles 14 and 21 of the Constitution. It dissents with the ultimate rare doctrine in the case of Bachan Singh v. State of Punjab (1980), demonstrating the disproportionate and subjective judgment, due to its imprecise standard, as opposed to the predictability of legal applications. Such ambiguity is reflected in the development of the death penalty jurisprudence, which, according to a number of cases, such as Jagmohan Singh (1973) to Rajendra Prasad (1979) and Bachan Singh. In tandem, legislative developments, including the CrPC 1973, making life imprisonment the new presumption of default, invalidated the customary presumption of death and an overdue change in attitude that still has not found full expression in judicial practice. The question that this article raises is whether justice can be done under such a system, or whether it is time that India abolishes or drastically overhauls how it carries out the death penalty.

Understanding Judicial Discretion in Capital Sentencing 

Judicial discretion has the benefit of giving the courts the ability to consider the case-specific information and to appropriately punish accordingly based on an ideal personalisation of justice through weighing mitigating and aggravating factors. But in the area of capital sentencing, where such exercise of discretion lacks both statutory and judicial guidelines, this decays. Lack of uniformity leads to random results-whereas analogous cases involve wildly dissimilar penalties. This is quite problematic in death penalty cases because the sentence is irreversible. Two criminals who are equally or more or less guilty can be punished in different ways, an act as death or life imprisonment, depending only on how a judge interprets it or what their ideology holds to be true or false. In the case of Shankar Kisanrao Khade v. State of Maharashtra (2013), Justice Madan Lokur stated how sad a state of affairs it is with no consistency among this kind of decision-making, which is subjective. Such discretion without check creates arbitrariness and therefore falls foul of Article 14 (equality before law) and Article 21 (right to life). In the case of Sangeet v. State of Haryana (2012), the Supreme Court admits that the use of capital sentencing no longer follows the principle of the rarest of the rare.

Judicial History and Jurisprudential History 

The history of the death penalty in India has been unfolding on a foot-by-foot basis. In the case of Jagmohan Singh v. State of Uttar Pradesh (1973), the Supreme Court affirmed that the death penalty was constitutional since it was the discretion of the judges to sentence to death, awaiting due process. But as held in Rajendra Prasad v. State of Uttar Pradesh (1979), Justice Krishna Iyer advocated that the execution penalty should only be applied when there is no doubt that life imprisonment is inadequate. He brought a reform approach model that made the death penalty interconnected with constitutional principles of equality and fairness. This judicial development was combined with a big legislative shift. The punishment considered was the death penalty under the CrPC of 1898, unless something was provided otherwise. This was overturned by the CrPC of 1973, which placed life imprisonment as the standard punishment and the death penalty only upon the existence of any special reasons. Lastly, in Bachan Singh vs. State of Punjab (1980), the Court coined the doctrine of the rarest of rare with an aim to make a way of narrowing down the aspect of Capital punishment.

Constitutional Lens: Articles 14, 21, and Due Process 

Article 14 makes mention of the equality before the law, and Article 21 makes mention of ensuring no one shall be deprived of their life or liberty without following due process of law, which is established by law. The principle of equality is threatened in such a case where unequal treatment is applied when judicial discretion causes unequal treatment. What is more, a procedure that makes such arbitrary and judge-oriented sentencing possible arguably pulls a flop in the department of fairness. These concerns arise from the default violation of constitutional protections in Indian courts because there are non-standardised sentencing guidelines in death penalty cases.

The ‘Rarest of Rare’ Doctrine: An Inconsistent Guideline

The ‘rarest of rare’ doctrine laid down in Bachan Singh v. State of Punjab (1980) was meant to allow the death penalty only in the gravest of cases. Yet, it remains vague, with no binding framework for its application. Practically, it provides an almost absolute discretion for sentencing on the judge’s part, without any guiding parameters or criteria. So, results have differed widely: the death penalty for mass murders in Machhi Singh v. State of Punjab (1983), and life imprisonment for equally brutal crimes in Swamy Shraddhananda (2008). There is a differential application of the doctrine by courts even in cases of a similar nature, exposing its subjective character. The Supreme Court recognised, in fact, in Sangeet v. State of Haryana (2012), that the doctrine has not metamorphosed into an accepted policy. Such inconsistencies put forth serious constitutional concerns. Article 14 guarantees equality before the law, and Article 21 protects life and personal liberty with due process of law. Any sentencing standard which is so divergent according to interpretation becomes a violation of both. As the 262nd Law Commission noted, capital sentencing functions in India as a “judicial lottery” rather than a principled exercise of justice.

Law Commission’s Recommendation on Abolition

An elaborate investigation of the system of capital punishment in India was tabled by the 262nd Law Commission Report (2015). Its resolute verdict was the following: all the crimes but the offences connected with terrorism should not be punished with the death penalty. Capital punishment in India, as revealed by the Commission, has tended to be the product of judgments based on personal beliefs, social prejudices and emotional reasoning on the part of the judge. It uncovered no empirical reasoning that would give some rational backing to the claim that the death penalty is more of a deterrent against any crime than life imprisonment, which makes the shoving of the death penalty even more legitimate.

Global Human Rights Standards 

The use of capital punishment is increasingly denounced by international pieces of legislation. The International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, limits its application to the most serious crimes only and imposes due process protection. Countries whose death penalty has become arbitrary or inconsistent in its application have been criticised severely by the UN Human Rights Committee. The present Indian practice is not in line with the emerging norm of the world that capital punishment is problematic, as it is irreversible and usually discriminatory.

Conclusion

Equity, equality, and respect for life, which are guaranteed under the Constitution of India, are monumental in contrast with the arbitrariness of the existing death penalty regime. Instead of being a protection, the doctrine of rarest of rare has facilitated subjective and inconsistent logic. Where a firm structure of sentencing is not in place, discretion can easily cross over to arbitrariness. Capital punishment in India has less to do with the facts and more to do with who happens to be the judge on the case, as it has been demonstrated in the case laws and the courts. Although abolition is a long way off, immediate change is highly necessary. India should embrace codification of sentencing standards, pre-sentencing testing and respect for constitutional principles. In a justice delivery system, this should not be the case, whereby a person’s life now remains subject to judicial whim.

Author’s Bio

Aasmi Bali is a second-year law student currently pursuing B.Com L.L.B (Hons.) from Jindal Global Law School, Sonipat. Her interests lie in technology law, public policy, and digital rights. 

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