[This article was published in the Madras Law Journal (Criminal) (25-06-2011) with citation (2011) 2 MLJ (CRL) at Journal Page No. 49]
Way back in 1980, a 5-Judge Constitution Bench of Supreme Court held that death penalty can be awarded only in the rarest of rare cases when the alternative option is unquestionably foreclosed.
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In 1983, another 5-Judge Constitution Bench of the Supreme Court declared that the provision of mandatory death penalty under Section 303 of the Indian Penal Code (IPC) was unconstitutional.
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However, now in 2011, a two-Judge Bench of the Supreme Court, in two separate judgments delivered in quick succession within a week, directed that mandatory death penalty be awarded in the cases of honour killing and police encounters, respectively, by treating all such cases as “rarest of rare”. These two recent judgments are in the cases of Bhagwan Dass v. State (NCT) of Delhi, 3 and Prakash Kadam v. Ramprasad Vishwanath Gupta, 4 respectively, delivered by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra.
This article examines, in detail, the legality of these two recent judgments in the light of the Constitutional and legal provisions, the aforesaid two Constitution Bench judgments of the Supreme Court, and other relevant judgments. It is made clear at the outset itself that I do not, in any way, undermine the seriousness of the offence of an honour killing or a fake police encounter; the whole purpose of this article is only to examine the legality of a mandatory death penalty in such cases instead of leaving the discretion in the matter of penalty to the courts concerned depending upon the facts and circumstances of the case, inter alia, including the mitigating circumstances.
In the aforesaid recent case of Bhagwan Dass, the Supreme Court directed as under:
“In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.
Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar General / Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State / Union Territories. … …”
Likewise, in the said case of Prakash Kadam, the Supreme Court held as under:
“25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”
Both these judgments have been taken very positively by the common man and have been widely appreciated by them. These decisions may appear to be good news for the public, but in my humble and respectful opinion, from the legal jurisprudence point of view, both the judgments are legally not sound and suffer from various legal defects.
Before getting into the details of the defects, let’s first see the general provision for death penalty provided by Indian law for the offence of murder.
Section 302 of the Indian Penal Code states that “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.” This clearly shows that the murderer can be punished either with a death sentence or with life imprisonment. The aspect of punishment has to be decided by the judge. The law gives the judge discretionary power to decide the punishment in each particular case. This discretionary power has to be exercised not arbitrarily but keeping in mind certain basic guidelines. A judge has to decide according to the facts and circumstances of each particular case, inter alia, including the mitigating circumstances in favour of the accused. This principle applies not only to the offence of murder but also to all other offences. The law always lays down the maximum punishment (and sometimes, minimum punishment also) for a particular offence, but the exact punishment has to be decided by the trial judge. Highlighting this important aspect of our legal system, a Constitution Bench of the Supreme Court held as under: 5
“The policy of Criminal Law as regards all crimes, including the crime of murder, is to fix a maximum penalty—the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the Judge.” 6
“The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. … … All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence.” 7
“The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused.” 8
Leaving a wide discretion with the trial judge in the matter of punishment is necessary because each case has its own peculiarities, and thus no strict punishment can be laid down. Each case has to be decided after keeping in mind all the specific facts and circumstances of that particular case, including the aggravating factors and the mitigating circumstances. The individuality of the each case has to be given due importance.
For the purpose of deciding punishment in cases of murder, following issues become relevant as per the guidelines laid down in various Supreme Court judgments:
- Whether the facts of the case disclose that the culpability of the accused has assumed extreme depravity; whether the accused is found to be an ardent criminal and menace to the society; whether the crime is committed in an organized manner and is gruesome, cold-blooded, heinous, atrocious and cruel; whether innocent unarmed persons are attacked and murdered without any provocation; whether the murder is committed by an accused who was in duty bound to protect the victim.
- The court shall consider both the aggravating as well as the mitigating circumstances in the case.
- Number of deaths ipso-facto will not make a case ‘the rarest of the rare’ case but will be a relevant aggravating circumstance and the mental condition of the accused will be relevant mitigating circumstance.
- Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
- Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
In the initial years, normal punishment under Section 302 IPC for the offence of murder was death. 9 But after 1973, when a new Criminal Procedure Code was enacted, Section 354(3) changed this trend; it states:
“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 death, the special reasons for such sentence.”
(emphasis and underlining supplied)
Analysing this new provision under Section 354(3), Cr.P.C., the Supreme Court held that under the new Code of Criminal Procedure, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital punishment as an exception to be resorted to for reasons to be stated. 10 It thus seems that normal sentence for murder is no longer a sentence of death but imprisonment for life and only for special reasons to be recorded in the judgment a sentence of death can be awarded in “rarest of the rare” cases. 11
In another case, the Supreme Court has held that the sentence of life imprisonment is more preferred form of punishment at present. Death sentence is ordinarily ruled out and is resorted to only for “special reasons”, as provided by S. 354(3) Cr.P.C. The personality of the offender as revealed by his age, character, antecedents, and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some linkage with these factors. Criminal Justice deals with complex human problems and diverse human beings. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. 12
So, we see that the aforesaid two judgments [i.e., Bhagwan Dass v. State (NCT) of Delhi, and Prakash Kadam v. Ramprasad Vishwanath Gupta] delivered in 2011 are against the current judicial trend. These two judgments have the effect of laying down that death penalty is the general rule or rather mandatory for honour killings and fake encounters.
These two judgments also have the effect of completely ruling out judicial discretion. Article 141 of the Constitution states that law declared by the Supreme Court shall be binding on all courts of India. Thus, if these two judgments are binding on the Trial Courts and High Courts, then they will be left with no judicial discretion at all and justice could be defeated in certain cases. So, even if the facts of the individual cases justify a lesser punishment, the lower courts would have no power to rule otherwise. These judgments have the effect of taking away the deciding power of the lower courts, which have been given to them by the law.
As seen above, judicial discretion plays a very important role in the matter of deciding punishment, and the above two recent judgments attempt to rule out judicial discretion in the matter of deciding the punishment, by mandating compulsory death punishment in honour killing and fake encounter cases, which takes away the most precious fundamental right of a person, i.e., his right to life!
It is pertinent to mention that a Constitution Bench of the Supreme Court had made certain very important observations in this regard in the case of Mithu v. State of Punjab. 13 In that case, the Supreme Court examined the constitutional validity of Section 303 IPC which laid down the mandatory death penalty for a particular type of the offence of murder. This section stated that, “Whoever, being under the sentence of imprisonment for life, commits murder, shall be punished with death.” The Supreme Court struck down Section 303 of IPC, inter alia, on the grounds that it was unconstitutional and void and that it violated Article 21 of the Constitution. It was held that a standardised mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. There is no reason why in the case of a person whose case falls under S. 303 IPC, factors like the age and sex of the offender, the provocation received by the offender and the motive of the crime should be excluded from consideration on the question of sentence. Equity and good conscience are the hallmarks of justice. A provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a pre-ordained sentence of death. It was held that by completely cutting out judicial discretion it (i.e., Section 303 IPC) becomes a law which is not just, fair and reasonable within the meaning of Article 21.
Applying the same ratio to the laying down of mandatory death penalty in honour killing and fake encounter cases by the aforesaid two recent judgments of the Supreme Court, it can be said that the above two judgments are not just, fair and reasonable. In fact, the aforesaid Mithu case was decided by a 5-Judge Constitution Bench of the Supreme Court and the principle laid down in that case cannot be violated or overruled by a 2-Judge Bench of the Supreme Court as unfortunately appears to have been done in the said two recent cases of Bhagwan Dass and Prakash Kadam.
Another flaw in these two recent judgments is that they categorise honour killings and fake encounters as the “rarest of rare cases”. Such a broad classification for the imposition of death penalty is against the basic constitutional principles of our country. It affects Article 14 of our Constitution which guarantees the right to equality and protects our people from such arbitrary classifications made without any just rationale. In this regard, it would again be pertinent to point out the important observations made by the Constitution Bench of the Supreme Court in the aforesaid case of Mithu, “Section 303 regards life convict to be a dangerous class without any scientific basis and thus violates Article 14”.
Moreover, Section 354(3) of Cr.P.C. specifically requires that when death penalty is to be imposed, the judgment shall state the special reasons for such death penalty. Thus, if the above two recent judgments are followed by the Trial Court or High Courts, and they award death in every such case (of fake police encounter or honour killing) then how can each case have the same special reason stating that the Supreme Court Judgments have categorized the above type of murder as the rarest of rare case and accordingly death penalty is being awarded? Thus, in following the above two recent Supreme Court judgments, the Trial Courts and High Courts while awarding death penalty in all such cases of honour killings and fake police encounters, would be violating a mandatory provision of law namely, Section 354(3) of the Cr.P.C.
Furthermore, these two judgments also ignore the provisions of Section 235(2) of the Cr.P.C. This section states that the judge must hear the accused on the question of sentence and then pass sentence on him according to law. Now again if the above two judgments are binding on the lower courts, then while following these judgments, Section 235 Cr.P.C. will have to be overlooked since such hearing would be of no meaning if a pre-decided punishment has to be imposed. In this regard, it is pertinent to mention that in the aforesaid Mithu case, 14 the Supreme Court observed: “It is because the death sentence has been made mandatory by section 303 in regard to a particular class of persons that, as a necessary consequence, they are deprived of the opportunity under section 235(2) of the Criminal Procedure Code to show cause why they should not be sentenced to death and the Court is relieved from its obligation under section 354(3) of that Code to state the special reasons for imposing the sentence of death. The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust. … … So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatized as arbitrary and oppressive.”
It is also germane to point out that in the aforesaid two recent judgments of the Supreme Court (i.e., Bhagwan Dass and Prakash Kadam), there was no occasion for it to lay down any mandatory directions in the matter of ‘punishment’ in case of honour killings and fake encounters. The Bhagwan Dass case relating to honour killing was an appeal by the convict to the Supreme Court to set aside the “life imprisonment” sentence confirmed by the High Court. So, in that case, there was no question of punishment of “death sentence”, as, the only question before the Supreme Court was either to confirm the punishment of life imprisonment or set it aside. There was no appeal by the State or any other party to enhance the punishment from “life imprisonment” to “death penalty”. The Supreme Court also did not issue any notice for any such enhancement of sentence to “death sentence”. The trial court awarded the sentence of life imprisonment which was confirmed by the High Court; and the Supreme Court also confirmed the same sentence of “life imprisonment”. Thus, “death penalty” was never an issue in this case. As mentioned above, the Supreme Court itself confirmed the sentence of “life imprisonment” only. Therefore, the Supreme Court was not required to lay down any direction for the lower courts, i.e., the High Courts and Trial Courts mandating that in future such cases of honour killings must be punished with death penalty.
In the aforesaid second case of Prakash Kadam relating to fake encounter, the issue before the court was not at all related to the magnitude of punishment since it was not a case against conviction (or acquittal, for that matter) in view of the fact that the trial was yet to be completed before the trial court, rather the only question before the Supreme Court was whether or not bail should be granted to the accused. The accused had appealed to the Supreme Court for grant of bail against the order of the High Court which had cancelled bail granted to the accused by the trial court. So the Supreme Court had to decide only on the question as to whether or not to grant bail. It was not asked to decide the kind of punishment to be given in such kind of cases (i.e., police encounters). There were no arguments with regard to that issue. So again, the observations made by the court were not required in the facts of the case.
Thus, in both these cases, i.e., the cases of Bhagwan Dass and Prakash Kadam, the question of death penalty was not before the Supreme Court. There were no arguments on the issue of death penalty. The Supreme Court gave the directions for mandatory death penalty in these cases in the form of obiter dicta. However, these directions have been given as if they are binding directions to the lower courts under Article 141 of the Constitution. In fact, recently, on June 8, 2011, a trial court has already awarded death penalty to 10 accused person in an honour killing case that took place in Jalesar police station area, 15 though it is not clear whether the said trial court order was to comply with the aforesaid Supreme Court judgment.
Lastly, the entire spirit of the two judgments is not only against the judicial trend of India, but also against the trend followed by most countries of the world today. Statistics 16 show that 96 countries have abolished capital punishment for all crimes and they include countries like Australia, France, Germany, South Africa, Nepal, United Kingdom; 9 countries have abolished capital punishment for ordinary crimes, i.e., their laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances; 34 countries are abolitionist in practice i.e. countries which have not abolished capital punishment formally but have not executed anyone in the past 10 years or those countries which have made international commitments not to use death penalty; and there are only 58 countries (including India and United States) which have still retained death penalty even for ordinary crimes. So, more than two-thirds countries of the world do not support death penalty as a form of punishment.
In the end, I would like to quote from a Supreme Court judgment as per which “Crime as crime may appear to be superficially the same, but the facts and circumstances of a crime are widely different”. 17 Thus each case must be judged individually and no generalisation must be made as regards punishment, especially if the punishment is the most severe punishment of “death penalty” that directly interferes with the fundamental right to life. Such right should not be taken away in a cavalier manner by way of a mandatory imposition of death penalty for all cases of a particular type, such as honour killings and police encounters. Again, it is not to suggest that such cases should be dealt with lightly but the discretion should be left with the courts of competent jurisdiction, instead of laying down a straitjacket formula for all cases of a particular type.
1 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898 : 1980 Cri LJ 636 : 1980 MLJ (Cri) 827.↩
2 Mithu v. State of Punjab, (1983) 2 SCC 277 : AIR 1983 SC 473 : 1983 Cri LJ 811 : 1983 MLJ (Cri) 485.↩
3 Criminal Appeal No. 1117 of 2011 decided by Supreme Court on May 9, 2011.↩
4 Criminal Appeals Nos. 1174-1178 of 2011 decided by Supreme Court on May 13, 2011.↩
5 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 : AIR 1973 SC 947 : 1973 Cri LJ 370 : (1973) 2 SCR 541.↩
6 Ibid., page 30 of SCC.↩
7 Ibid., page 33 of SCC.↩
8 Ibid., page 35 of SCC.↩
9 Gourishankar, (1965) 68 Bom LR 236. ↩
10 Ediga Anamma v. State of A.P., (1974) 4 SCC 443 : AIR 1974 SC 799 : 1974 Cri LJ 683 : (1974) 3 SCR 329.↩
11 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898 : 1980 Cri LJ 636 : 1980 MLJ (Cri) 827.↩
12 Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526.↩
13 (1983) 2 SCC 277 : AIR 1983 SC 473 : 1983 Cri LJ 811 : 1983 MLJ (Cri) 485.↩
14 (1983) 2 SCC 277 : AIR 1983 SC 473 : 1983 Cri LJ 811 : 1983 MLJ (Cri) 485.↩
15 http://www.indianexpress.com/news/court-awards-capital-punishment-to-10-for-honour-killing/800969/↩
16 http://www.amnesty.org; as of December 31, 2010.↩
17 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 : AIR 1973 SC 947 : 1973 Cri LJ 370 : (1973) 2 SCR 541.↩
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