“The judgment does not, with respect, indicate the
material that led this Court to conclude what
aroused the intense and extreme indignation of the community. Except the
nature of the crime, it is not clear on what
basis it concluded that the criminal was a menace to society and “shall continue
to be so and he cannot be reformed” ( Supreme Court in “Sangeet &
Ors. v. State of Haryana” )
Given the grave
nature of certain crimes, imposition of Death Penalty has, for a long time,
come out to be a proper way of their valid redressal. But, what constitutes
this grave nature that will make a crime qualify to be a “rarest of the rare crime”? This has rather been a matter of
dispute.
Recent decision
of the apex court in the case of Sangeet & Ors v. State of Haryana (decided
on Nov. 20, 2012) has once again thrown light on the debate surrounding the
issue of death penalty. In this case,
an entire family but one was brutally murdered. Considering the nature of crime
to be heinous, appellants were sentenced to death by the trail court which, on
appeal, was confirmed by the Punjab & Haryana High Court. While discussing the
issue, Supreme Court referred to the two landmark judgments Jagmohan
Singh v. State of U.P. (1973) 1 SCC 20, decided in accordance with
former CrPC Code (1898), and Bachan Singh v. State of Punjab (1980) 2 SCC
684, decided in accordance with the fresh CrPC Code (1973). A number of
other cases were also discussed in the judgment.
Change in the
nature of Sentencing w.r.t “Death Penalty”- Since 1974, when
a fresh CrPC (1973) came into force, the nature of sentencing in cases, where maximum
punishment is death penalty, has significantly changed. In earlier code, death
penalty appears to be the rule and life sentence an exception (as also other
sentences).[1]
Contrary to this, under the fresh code, death penalty appears to be exception and life imprisonment a rule.[2]
Ultimately, considering
the uncertainty in the procedure governing death penalty in this case, appeal was allowed by
the Supreme Court and death sentences were converted into life imprisonment.
"The Constitution Bench made it absolutely clear that the suggestions given by learned counsel were only indicators and not an attempt to make an exhaustive enumeration of the circumstances either pertaining to the crime or the criminal. The Constitution Bench hoped and held that in view of the “broad illustrative guide-lines” laid down, the Courts “will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception." - para 28
"The Constitution Bench made it absolutely clear that the suggestions given by learned counsel were only indicators and not an attempt to make an exhaustive enumeration of the circumstances either pertaining to the crime or the criminal. The Constitution Bench hoped and held that in view of the “broad illustrative guide-lines” laid down, the Courts “will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception." - para 28
Earlier this
year, I came across an article titled “A case against the death penalty”,
published on Frontline, which thoroughly examined the issue of death penalty and
inconsistencies therein. If one compares this article with the judgment in Sangeet case, the debatable issues are principally the same. Article
highlighted a group of retired judges who came in rescue of those wrongly
convicted with death sentences. Unfortunately, two of the convicts, who were
wrongly convicted, were already executed in 1996 and 1997. According to the
retired judges, this “constituted the
gravest known miscarriages of justice in the history of crime and punishment in
independent India.”
Article 21 of
the Constitution of India, 1950, provides to every person a life and personal
liberty. This right of life and personal liberty can only be taken away by a procedure established by law. In the
light of Maneka Gandhi v. Union of India,
it has now become clear that this procedure cannot
be “arbitrary, unfair, oppressive or unreasonable”. In India, Code of
Criminal Procedure, 1973, empowers the judges to provide a death penalty, and
for doing so, reasons are to be noted. But what are the criteria for providing
these reasons? Seeing the absence of any such proper mechanism, Supreme Court, in
the case of Bachan Singh (supra), came up with certain principles. Unfortunately,
these principles have not been followed uniformly. In Bachan Singh (supra), court
was of the opinion that due weightage should be given to both the crime and the
criminal, instead of crime alone. It was also held that death penalty should be
given only in rarest of rare crime. Further, Section 235 of CrPC empowers the judge for giving a judgment once the arguments are heard. Of Course, discretion should be left to the judge deciding a particular case. But, should the life of a person be made subject only to this discretion? Should not there be certain basic principles to be followed with certainty? In the absence of such a certainty, life of a person will depend merely on the what a judge thinks of. There can be a situation when one judge may provide a death sentence, but other judge, on the same facts and circumstances, may not. Whether it should be crime and criminal, or the criminal alone, is a matter which needs thorough deliberation. Reverting back, do all these circumstances leave the procedure under Article 21 of the Constitution as reasonable? In my opinion, the substantive part of the procedure under Article 21 needs more clarity as far as the death penalty is concerned. In the absence of such a clarity, the life of an individual, though an accused, will be at stake. It is true that certain crime are so grave that death penalty may be warranted for it. Nonetheless, procedure of providing death penalty should have some certainty
From the judgment of the Court in Sangeet Case, and also other cases mentioned therein, it is clear that in awarding death sentence, there has not been a consistency in the principles followed. Much discretion is provided to the judge in determining what constitutes rarest of rare crime. This uncertainty in the decisions is also because of the change in the judges serving the apex and other courts. It is high that that, if not abolition, then a uniformity should appear in such grave convictions.
From the judgment of the Court in Sangeet Case, and also other cases mentioned therein, it is clear that in awarding death sentence, there has not been a consistency in the principles followed. Much discretion is provided to the judge in determining what constitutes rarest of rare crime. This uncertainty in the decisions is also because of the change in the judges serving the apex and other courts. It is high that that, if not abolition, then a uniformity should appear in such grave convictions.
contact - abhinav.s@nujs.edu
Brilliant, :)
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