How courts can stop judgments on death sentence from being challenged

In December 2012, India witnessed unprecedented protests following the gruesome gang-rape of a 23-year-old paramedic student (named Nirbhaya later) by five persons on a moving bus in New Delhi.

“Hang the monsters” placards were a common sight during the protest. The rage was intense, and the demand for the death penalty for the accused persons seemed non-negotiable. The trial court convicted the five accused persons of rape and murder and sentenced them to death.

The Delhi High Court confirmed the death sentence awarded by the trial court, and the Supreme Court upheld the decision of the high court.

The Supreme Court bench consisting of Justices Dipak Misra, R Banumathi and Ashok Bhushan gave a concurring decision upholding the death penalty for the convicts. Justice Dipak Misra called the case “a story from a different world where humanity has been treated with irreverence”.

Reading the judgment makes it clear that the court did not decide to uphold the death penalty under any sort of public pressure. In strict adherence to the law and the fact that aggravating circumstances outweighed the mitigating circumstances, the court gave its decision.

It is important to note that in the famous Bachan Singh case the apex court had urged that a balance sheet of “mitigating and aggravating circumstances” have to be drawn before sentencing a person to death. And, in the Nirbhaya case, the balance sheet tilted towards aggravating circumstances, evident from the unimaginable injuries caused to the victim.

The Nirbhaya case led to many changes in the penal law. One among them was regarding the trial of juveniles for heinous crimes. The Juvenile Justice (Care and Protection of Children) Amendment Bill 2015, which was finally passed in 2016, allowed for juveniles between the age of 16 and 18 to be tried as adults in case of heinous crimes.

It was a case of a dastardly brutal rape that shocked the conscience of the country. One of the reasons the Nirbhaya case could get the required attention apart from the gruesome nature of the crime was the fact that it took place in the National Capital.

But what about the crime against those who live far from the media glare of big metropolitan cities, in some nondescript village. Does the rape of a two-and-a-half-year-old, who suffered indescribable injuries leading to her death, fall in the ambit of “rarest of rare”? Does the killing of a four-year-old, who was brutalised and dumped to die, warrant the death capital?

In a landmark case titled Machhi Singh versus the State of Punjab, the Supreme Court listed five categories of cases when the “collective conscience of the community” is so shocked that it will expect the “holders of judicial powers” to grant the death sentence to the guilty of the crime, “irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty”.

On 19 April, the Supreme Court bench comprising Justice UU Lalit, Justice S Ravindra Bhat, and Justice Bela M Trivedi commuted the death sentence granted to a person named Firoz. Firoz was held guilty of the rape and murder of a four-year-old girl and was awarded the death sentence by the trial court which was upheld by the Madhya Pradesh High Court.

Two of the five circumstances listed in Machhi Singh’s judgment were: (1) Manner of Commission of Murder: When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community;(2) Personality of a victim of murder: When the victim of murder is an innocent child who could not have or has not provided even an excuse, much less a provocation for murder.

Taking two facts of the Firoz case and placing them in the context of five guidelines enunciated in the Macchi Singh case and adding them can lead to a conclusion that the death sentence for Firoz should be upheld. To elaborate it, the personality of the victim was that of a four-year-old girl, by all means an “innocent child who could not have or has not provided even an excuse, much less a provocation for murder”; and manner of commission of the murder was by all means “brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community”.

So, how do we justify the commuting of the death penalty?

The decision attracted serious criticism from various quarters and led to the filing of the review petition. The petitioner, who is the mother of the deceased victim, has argued that while commuting the death sentence, the apex court considered the accused’s rights and has completely ignored the victim’s rights.

As reported by Live Law, the petitioner has taken a plea that the court committed a “manifest error” by applying the ratio of Shatrughna Baban Meshram versus the State of Maharashtra as unlike that case, in the present case the accused consciously strangulated the victim with clear intention to extinguish the life of the girl.

In the Shatrughna Baban Meshram case, the Supreme Court bench consisting of justices Uday Umesh Lalit, Krishna Murari, and Indu Malhotra commuted the death sentence of a man named Shatrughna Baban Meshram who was found guilty of raping her two-and-a-half-year-old niece which led to her death.

The court commuted his death sentence as it held that the accused “did not consciously cause any injury with the intent to extinguish the life of the victim”. However, the post-mortem report mentioned 18 injuries that included bite marks on the private parts of the two-and-a-half-year-old girl and assault by the hard and rough surfaces. The rape was of such intensity that there was a merging of vaginal and anal orifices of the victim.

The court in its judgment observed that considering the age of the victim in the present case, the accused must have known the consequence that his sexual assault on a child who was two-and-a-half-year-old would cause death or such bodily injury as was likely to cause her death hence held Shatrughna Baban Meshramguilty guilty of culpable homicide amounting to murder.

However, while commuting the death sentence, the court held that a “definite pointer in favour of the appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 (multiple lacerations over the vaginal and anal region) which was the cause of death, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded”.

According to clause fourthly under Section 300 of the IPC, the offence may come under the category of culpable homicide amounting to murder “if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid”.

Whereas the first three clauses of Section 300 IPC are: Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death; or — (secondly) —if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or — (thirdly) — if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

So, the court, while accepting the fact that the accused committed the crime, knew the gravity of the crime, and knew the consequences of the crime, commuted the death sentence because the conviction was not secured under any of the first three clauses of Section 300 of IPC.

Coming back to the case of the rape of the four-year-old, the court relied upon the same arguments but as stated by the petitioner challenging the judgment, in the current case of rape of the four-year-old girl, the death of the victim was caused by bronchopheumonia and cerebral hypoxia, which was caused by smothering the nose and mouth which makes it evident that the accused person did intend to cause death to the victim.

So, how the “fourthly” clause applies here is a question that might be deliberated upon during the hearing of the review petition.

Every time the death penalty is awarded by the court or is commuted under its appellate jurisdiction, the abolitionist and retentionist crusaders give this age-old debate a new lease of life. The fact remains that while the Supreme Court has tried time and again to codify and classify the cases which can attract the severest punishment of death, the discretion of the judges prevails.

In this context, the Law Commission report on the death penalty makes an important observation. It reads, “Despite the court’s optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there remain concerns that capital punishment is ‘arbitrarily or freakishly imposed’. In Santosh Kumar Satishbhushan Bariyar v. Maharashtra, the court held that ‘there is no uniformity of precedents, to say the least’. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle.”

The law commission adds that such concerns have been reiterated on multiple occasions, where the Supreme Court has pointed out that the rarest of rare dictum propounded in the Bachan Singh case has been inconsistently applied.

Citing several cases like Aloke Nath Dutta versus State of West Bengal and Swamy Shraddhananda versus State of Karnataka, among others, the Law Commission report stated: “In these cases, the court has acknowledged that the subjective and arbitrary application of the death penalty has led ‘principled sentencing’ to become ‘judge-centric sentencing’, based on the ‘personal predilection’ of the judges constituting the Bench.”

The functioning of the modern State is defined by a set of enforceable laws, whose breach leads to punitive action by the State. For most of the offences and crimes committed, the punishments are imprisonment for varied time periods depending upon the gravity of the crime. The State is given free agency to decide the amount of penalty and duration of imprisonment it chooses to award to those found in conflict with the law. These punishments are seldom a point of debate as they are seen as reformative procedures to fix deviant minds.

The debate starts when the State decides to end the life of the one who has committed a crime of heinous nature.

Capital punishment is an idea that is laden with ambiguity. The debate surrounding it is guided by forceful arguments from both sides, the abolitionists and retentionists. The abolitionists argue that as the death penalty is irrevocable, any flaw in the trial leads to a complete miscarriage of justice. Retentionists argue that this cannot be the reason for the abolition of the death penalty, but an argument for reform of the judicial system and the sentencing procedure.

Starting from Dr BR Ambedkar who sought to abolish of death sentence in 1949 to current times when numerous reports suggest the futility of retaining capital punishment, India has seen forceful attempts for abolishing capital punishment.

But India chose to retain it.

There have been several genuine attempts by the Supreme Court to classify cases that can be seen fit for awarding the death penalty. But the issue of capital punishment is as moral a dilemma as it is a legal one, so the moral arguments cannot be ignored. And acknowledging them leads to the shifting of the entire debate into a subjective domain.

Given this scenario, the court judgments related to the death sentence will always be open to interpretation and challenge, more often from a moral side than from a legal angle. Of course, till we manage to codify watertight compartmentalisation of offences that by all means should be punished with a death sentence.

Shishir Tripathi is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.

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