A case against the death penalty - Former SC judges say 13 wrongly convicted to death

Within a few weeks of Pranab Mukherjee assuming office as the 13th President of India on July 25, 14 former judges of eminence signed an unusual appeal addressed to the President. The appeal, in the form of separate letters, sought his intervention to commute the death sentences of 13 convicts, currently lodged in various jails across the country, using his powers under Article 72 of the Constitution... what is so special about these 13 convicts that made the former judges come together and make an impassioned appeal for commutation?.. these 13 convicts were erroneously sentenced according to the Supreme Court’s own admission and are currently facing the threat of imminent execution..

The Supreme Court, while deciding three recent cases, held that seven of its judgments awarding the death sentence were rendered per incuriam (meaning out of error or ignorance) and contrary to the binding dictum of “rarest of rare” category propounded in the Constitution Bench judgment in Bachan Singh vs State of Punjab (1980) (2 SCC 684). The three recent cases were Santosh Kumar Bariyar vs State of Maharashtra (2009) (6 SCC 498), Dilip Tiwari vs State of Maharashtra (2010) (1 SCC 775), and Rajesh Kumar vs State (2011) (13 SCC 706).

The former judges also informed the President in the appeal that two prisoners who had been wrongly sentenced to death, Ravji Rao and Surja Ram (both from Rajasthan), had been executed on May 4, 1996, and April 7, 1997, respectively, pursuant to the flawed judgments. These, they said, constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India. The Supreme Court’s admission of error had come too late for them, they wrote.

They told the President that the concerns expressed in the appeal had nothing to do with the larger debate over the desirability of retaining the death penalty. “Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner. Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future,” the appeal explained. The judges also annexed an explanatory note to their appeal so as to convince the President that the sentences of these 13 convicts indeed deserved to be commuted. In this, they cited the landmark Bachan Singh vs State of Punjab, which laid down the “rarest of rare” doctrine, and said it emphasised giving sufficient weight to the mitigating circumstances pertaining to the criminal along with the aggravating circumstances relating to the crime.
Dayanidhi Bisoi, one of the 13 whom the court admitted was wrongly convicted. The Odisha Governor commuted his sentence to life imprisonment

They then explained how this Bachan Singh dictum laid down by a Constitution Bench had been reversed in a later case. In Ravji @ Ram Chandra vs State of Rajasthan (1996) (2 SCC 175), a case which was decided by a Bench of two judges, the Supreme Court held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial” (paragraph 24). This aspect of the decision in the Ravji case directly conflicts with the Bachan Singh ruling. Thereafter, the Supreme Court repeatedly invoked the Ravji precedent in death penalty cases so as to limit the focus only to the circumstances pertaining to the crime and exclude the circumstances pertaining to the criminal until another two-Bench judge of the Supreme Court discovered this folly in Bariyar, in 2009.

In Bariyar, the Bench held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight. In this case, the appellant had killed his victim, a young boy, whom he had kidnapped for ransom. Yet, the Bench commuted his death sentence, imposed by the Bombay High Court, to rigorous imprisonment for life as, in its view, the mitigating factors in the case were sufficient to take it out of the “rarest of rare” category. The Bench believed that though the socio-economic backwardness of the convict might not dilute guilt it was a mitigating circumstance and held there was a potential for reform. Relying on Bachan Singh, the court in Bariyar held that the prosecution must prove, as a precondition for awarding the death penalty, that reform and rehabilitation of the criminal would not be possible. The key issue here is Section 354(3) of the Code of Criminal Procedure (CrPC). This provision states that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of the sentence of death, the special reasons for such sentence.

‘Special reasons’
In Bachan Singh, the Supreme Court explained what the phrase “special reasons” meant in this provision. It said: “The expression ‘special reasons’ in the context of this provision obviously means ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal” (paragraphs 161 at page 738 of the judgment). In paragraph 163, Bachan Singh further noted: “....in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of [the] Penal Code, the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal”. The circumstances of the criminal would include, as the Supreme Court held in one case, the mindset of the criminal and whether he was under the grip of social factors such as caste.

In Bariyar, the Supreme Court got an opportunity to explain this further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”..

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