India opposes death penalty ban at UN

Referring to the landmark Bachan Singh case in 1980 when the “rarest of rare” category was devised and the subsequent important decisions on death sentence, a bench of Justices K S Radhakrishnan and Madan B Lokur said there was “little or no uniformity in the application” of this principle. In fact, the bench seemed to even concede that categorizing crimes — the basis for ranking them and assessing which all meet the “rarest of rare” standard — might be difficult. In short, the court suggested that the present system was not working.

“In the sentencing process, both the crime and criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing,” Justice Lokur, who authored the judgment for the bench, said.

Importantly, the bench barred governments from granting mass remission of sentence to convicts for their release on Independence Day, Republic Day or birth anniversary of Mahatma Gandhi: a power which governments have often used in controversial ways.

The court had in 1980 classified the nature of cases to carve out the “rarest of rare” category, while identifying mitigating circumstances which it held should enable a judge to consider awarding life sentence even in convictions warranting imposition of death penalty.

Justices Radhakrishnan and Lokur on Tuesday said the mitigating circumstances enumerated in the Bachan Singh judgment, which gave discretion to a judge to commute death sentence to life term, had not been uniformly applied through the years.

They said, “The constitution bench of this court has not encouraged standardization and categorization of crimes and even otherwise, it is not possible to standardize and categorize all crimes.”

The bench made the observation while commuting to life imprisonment the death sentence awarded by trial court and the high court to two persons for wiping out an entire family in Haryana. Other accused in the case were awarded life imprisonment.

While deciding the fate of the duo on death row, the bench moved on to explore the application of “rarest of rare” criterion.

Justice Lokur said, “It does appear that in view of the inherent multitude of possibilities, the aggravating and mitigating circumstances approach has not been effectively implemented. Therefore, in our respectful opinion, not only does the aggravating and mitigating circumstances approach needs a fresh look but the necessity of adopting this approach also needs a fresh look in the light of conclusions in Bachan Singh.”

It said despite the Bachan Singh judgment reiterating the aggravating and mitigating circumstances requiring imposition of life sentence, the courts have continued to focus only on the severity of the crime and ignored the circumstances that needed to be looked into before balancing the punishment with the crime.

The court also noticed that there had been arbitrary exercise of remission powers by governments, ignoring procedural and substantive statutory checks, which needed to be faithfully enforced. It mandated the governments to take the opinion of the concerned judge before granting remission of sentence and release of a convict from prison.

The court also put a full stop on the en-mass release of convicts by granting remission of sentence on the eve of important days. It said, “Before actually exercising the power of remission under Section 432 of the Criminal Procedure Code, the appropriate government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming court. Remissions can, therefore, be given only on a case-by-case basis and not on a wholesale basis.