Report No. 262 On "The Death Penalty"

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Law Commission Report

Report No. 262 On "The Death Penalty"

GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

Report No.262

The Death Penalty

August 2015
U;k;ewfrZ vftr izdk'k 'kgk Justice Ajit Prakash Shah
HkwriwoZ eq[; U;k;k/kh'k] fnYyh mPp U;k;ky; Former Chief Justice of Delhi High court
v/;{k Chairman
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D.O. No.6(3)263/2014-LC(LS) 31 August 2015

Dear Mr. Sadananda Gowda ji,

The Law Commission of India received a reference from the Supreme Court in Santosh Kumar
Satishbhushan Bariyar v. Maharashtra [(2009) 6 SCC 498] and Shankar Kisanrao Khade v. Maharashtra
[(2013) 5 SCC 546], to study the issue of the death penalty in India to "allow for an up-to-date and
informed discussion and debate on the subject."

This is not the first time that the Commission has been asked to look into the death penalty - the
35th Report ("Capital Punishment", 1967), notably, is a key report in this regard. That Report
recommended the retention of the death penalty in India. The Supreme Court has also, in Bachan Singh
v. UOI [AIR 1980 SC 898], upheld the constitutionality of the death penalty, but confined its application
to the 'rarest of rare cases', to reduce the arbitrariness of the penalty. However, the social, economic
and cultural contexts of the country have changed drastically since the 35th report. Further,
arbitrariness has remained a major concern in the adjudication of death penalty cases in the 35 years
since the foremost precedent on the issue was laid down.

Accordingly, and in recognition of the fact that the death penalty is an issue of a very sensitive
nature, the Commission decided to undertake an extensive study on the issue. In May 2014, the
Commission invited public comments on the subject by issuing a consultation paper. Towards the same
goal, the Commission also held a one-day Consultation on "The Death Penalty in India" on 11 July
2015 in New Delhi. Thereafter, upon extensive deliberations, discussions and in-depth study, the
Commission has given shape to the present Report. The recommendation of the Commission in the
matter is sent herewith in the form of the Commission's Report No.262 titled "The Death Penalty",
for consideration by the Government.

Certain concerns were raised by Part Time Member Prof (Dr) Yogesh Tyagi, which have been
addressed to the best possible extent in the present Report; however, his signature could not be
obtained as he was out of the country. Justice (retd.) Ms Usha Mehra, Member; Mr PK Malhotra, Law
Secretary and Dr. Sanjay Singh, Secretary, Legislative Department, Ex-Officio Members, chose not to
sign the Report and have submitted notes on the issue, which are attached to the Report as appendices.

With warm regards,
Yours sincerely,

Sd/-

[Ajit Prakash Shah]
Mr. D.V. Sadananda Gowda
Hon'ble Minister for Law and Justice
Government of India
Shastri Bhawan
New Delhi

ii
Report No. 262
The Death Penalty
Table of Contents
Chapter Title Page
I Introduction 1-14
A References from the Supreme Court 1
B Previous Reports of the Law Commission 3
(i) The 35th Report on Capital Punishment 3
(1967)
(ii) The 187th Report on the Mode of 4
Execution (2003)
C Need for re-examining the 35th Report 4
(i) Development in India 5
(ii) The new Code of Criminal Procedure in 7
1973
(iii) The emergence of constitutional due- 8
process standards
(iv) Judicial developments on the arbitrary 10
and subjective application of the death
penalty
(v) Recent Political Developments 11
(vi) International Developments 12
D The Consultation Process Adopted by the 12
Commission
E The Present Report 13
II History of the death penalty in India 15-37
A Pre-Constitutional History and 15
Constituent Assembly Debates
B Legislative Backdrop 17
C Previous Law Commission Reports 18
(i) The 35th Report of the Law Commission 18
(ii) The 187th Report of the Law Commission 21
D Constitutionality of the Death Penalty in 22
India

iii
(i) From Jagmohan to Bachan Singh 22
(ii) Mandatory Death Sentences 27
(iii) Method of Execution 28
(iv) Delay and the death penalty 29
E Laws on the death penalty in India 31
(i) Recent expansions of the scope of the 33
death penalty
(ii) The Death Penalty and Non-Homicide 33
offences
(iii) Continued existence of the mandatory 35
death penalty
(iv) Death penalty and anti-terror laws 35
(v) Bills proposing abolition of the death 36
penalty
F Recent Executions in India 36
III International Trends 38-73
A Developments in the International 40
Human Rights Law Framework
(i) Capital Punishment in International 40
Human Rights Treaties
a. The International Covenant on Civil and 41
Political Rights
b. The Second Optional Protocol to the 43
ICCPR, aiming at the abolition of the
death penalty
c. The Convention on the Rights of the 43
Child
d. The Convention against Torture and 44
Cruel, Inhuman or Degrading Treatment
or Punishment
e. International Criminal Law 45
f. International Treaty Obligations in 46
Indian Law
(ii) Safeguards regarding capital punishment 47
in international law
a. The ECOSOC Safeguards 47

iv
b. Reports by the Special Rapporteur on 50
extrajudicial, summary or arbitrary
executions
c. The Special Rapporteur on torture and 50
other cruel, inhuman or degrading
treatment or punishment
(iii) Political Commitments regarding the 51
Death Penalty globally
a. General Assembly Resolution 51
b. UN Human Rights Council 52
(iv) Death penalty and the law of extradition 53
B International Trends on the Death 55
Penalty
(i) Regional Trends regarding the Death 56
Penalty
a. The Americas 56
b. Europe 58
c. Africa 61
d. Asia and the Pacific 65
1. South Asia 68
C Conclusion 70
IV Penological Justifications for the 74-105
Death Penalty
A Scope of Consideration 74
B Approach of the 35th Report of Law 75
Commission
C Deterrence 76
(i) Empirical Evidence on Deterrent Value of 79
the Death Penalty
(ii) Assumptions of Deterrence 82
a. Knowledge Fallacies 83
b. Rationality Fallacies 84
(iii) The Case of Terrorism 84
D Incapacitation 87
E Retribution 89
(i) Retribution as Revenge 89

v
(ii) Retribution as Punishment Deserved by 90
the Offender
F Proportionality 92
G Reformation 95
(i) Supreme Court on Reformation 96
H Other important issues 99
(i) Public Opinion 99
I The Move towards Restorative Justice 100
V Sentencing in Capital Offences 106-173
A The Bachan Singh Framework: Guided 106
Discretion and Individualized Sentencing
B Implementation of the Bachan Singh 108
Framework
(i) Doctrinal Frameworks 110
a. Machhi Singh 111
b. Crime Centric Focus 112
c. Shock to the Collective Conscience and 115
Society's Cry for Justice
d. The Crime Test, the Criminal Test and 118
the Rarest of Rare Test
(ii) Factors considered Aggravating and 121
Mitigating
a. Non-Consideration of Aggravating and 121
Mitigating Circumstances
b. Age as a Mitigating Factor 122
c. Nature of offence as an Aggravating 124
Factor
d. Prior Criminal Record of the Offender as 127
an Aggravating Factor
e. The Possibility of Reform 129
(iii) Rules of Prudence 132
a. Circumstantial evidence 133
b. Disagreement on guilt or sentence 134
between judges
(iv) Empirical Data on the Imposition of the 140
Death Penalty
a. Rates of Imposition of the Death Penalty 140

vi
b. "Judge Centric" Death Penalty 142
Jurisprudence
c. Geographical Variations 144
C Systemic and Structural Concerns with 145
the Criminal Justice Process:
Implications for the Death Penalty
(i) Assessing Capacity to Reform 145
(ii) Economic and Educational Vulnerability 149
D Fallibility of the Criminal Justice System 155
and the Death Penalty
(i) Guilt Determination 156
(ii) Admitted Error in Imposing the Death 161
Sentence
(iii) Variations in Application of the Rarest of 165
Rare framework
VI Clemency Powers and Due Process 174-212
Issues pertaining to the Execution of
Death Sentence
A Introduction 174
B Nature, Purpose and Scope of Clemency 174
Powers
C Standard of Judicial Review for 183
Examining Exercise of Mercy Powers
D Duty of Writ Courts Carrying Out 185
Judicial Review of Exercise of Mercy
Powers
E Subjectivity in Exercise of Power under 186
Article 72 by the President
F Judicial Review of Exercise of Mercy 190
Powers
(i) Chronic Mental Illness Ignored: The Case 191
of Sunder Singh
(ii) Cases involving Long delays in 192
Investigation and Trial
a. The Case of Gurmeet Singh 192
b. The Cases of Simon and Others 193

vii
(iii) Partial and Incomplete Summary 193
Prepared for President: The Case of
Mahendra Nath Das
(iv) Non-Application of Mind 194
a. The Case of Dhananjoy Chatterjee 194
b. The Case of Bandu Baburao Tidke 194
(v) Mercy Petition Rejected Without Access 194
to Relevant Records of the Case: The
Case of Praveen Kumar
(vi) Wrongful Executions and Failure of the 195
Clemency Process
a. The Case of Jeeta Singh 195
b. The Cases of Ravji Rao and Surja Ram 196
(vii) Cases of Other Prisoners Sentenced to 197
Death under Judgments Subsequently
Declared to be Per Incuriam
a. Cases which have placed reliance on the 197
Per Incuriam Decision of Ravji
b. The Case of Saibanna 198
c. Decisions held to be Per Incuriam by 199
Sangeet and Khade
G Constitutional Implications of Pain and 200
Suffering Imposed on Convicts on Death
Row in the Pre-Execution Phase
(i) Enduring Long Years on Death Row 202
a. Revised Standard of Delay in Pratt 204
b. Delayed Execution serves No Penological 207
Purpose and is, therefore, Excessive
(ii) Illegal Solitary Conditions of Detention 209
H Conclusion 211
VII Conclusions and Recommendation 213-218
A Conclusions 213
B Recommendation 217

Annexures
I List of Participants of One-day 219-221
Consultation

viii
Appendices
A Note from Justice (Retd.) Ms. Usha 222-229
Mehra, Member
B Note from Dr. Sanjay Singh, Member 230-233
(Ex-Officio)
C Note from Shri P K Malhotra, Member 234-242
(Ex-Officio)

ix
CHAPTER - I
INTRODUCTION

A. References from the Supreme Court

1.1.1 In Shankar Kisanrao Khade v. State of
Maharashtra ('Khade'),1 the Supreme Court of India,
while dealing with an appeal on the issue of death
sentence, expressed its concern with the lack of a
coherent and consistent purpose and basis for awarding
death and granting clemency. The Court specifically
called for the intervention of the Law Commission of
India ('the Commission') on these two issues, noting
that:

It seems to me that though the courts have been
applying the rarest of rare principle, the executive
has taken into consideration some factors not
known to the courts for converting a death sentence
to imprisonment for life. It is imperative, in this
regard, since we are dealing with the lives of people
(both the accused and the rape-murder victim) that
the courts lay down a jurisprudential basis for
awarding the death penalty and when the
alternative is unquestionably foreclosed so that the
prevailing uncertainty is avoided. Death penalty
and its execution should not become a matter of
uncertainty nor should converting a death sentence
into imprisonment for life become a matter of
chance. Perhaps the Law Commission of India
can resolve the issue by examining whether
death penalty is a deterrent punishment or is
retributive justice or serves an incapacitative
goal.2 (Emphasis supplied)

It does prima facie appear that two important
organs of the State, that is, the judiciary and the
executive are treating the life of convicts convicted
of an offence punishable with death with different

1 (2013) 5 SCC 546.
2 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 148.

1
standards. While the standard applied by the
judiciary is that of the rarest of rare principle
(however subjective or Judge-centric it may be
in its application), the standard applied by the
executive in granting commutation is not
known. Therefore, it could happen (and might well
have happened) that in a given case the Sessions
Judge, the High Court and the Supreme Court are
unanimous in their view in awarding the death
penalty to a convict, any other option being
unquestionably foreclosed, but the executive has
taken a diametrically opposite opinion and has
commuted the death penalty. This may also need
to be considered by the Law Commission of
India.3 (Emphasis supplied)

1.1.2 Khade was not the first recent instance of the
Supreme Court referring a question concerning the
death penalty to the Commission. In Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
('Bariyar'),4 lamenting the lack of empirical research on
this issue, the Court observed:

We are also aware that on 18-12-2007, the United
Nations General Assembly adopted Resolution
62/149 calling upon countries that retain the death
penalty to establish a worldwide moratorium on
executions with a view to abolishing the death
penalty. India is, however, one of the 59 nations
that retain the death penalty. Credible research,
perhaps by the Law Commission of India or the
National Human Rights Commission may
allow for an up-to-date and informed
discussion and debate on the subject.5
(Emphasis supplied)

1.1.3 The present Report is thus largely driven by
these references of the Supreme Court and the need for
re-examination of the Commission's own
3 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 149.
4 (2009) 6 SCC 498.
5 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498,

at para 112.

2
recommendations on the death penalty in the light of
changed circumstances.

B. Previous Reports of the Law Commission

(i) The 35th Report on Capital Punishment (1967)

1.2.1 The Commission began work on its 35th
Report on "Capital Punishment" in December 1962,
which it presented in December 1967. The Report was
the consequence of a reference by the Parliament, when
the third Lok Sabha debated on the resolution moved by
Shri Raghunath Singh, Member, Lok Sabha for the
abolition of capital punishment.6 The Commission
undertook an extensive exercise to consider the issue of
abolition of capital punishment from the statute books.
Based on its analysis of the existing socio-economic-
cultural structures (including education levels and
crime rates) and the absence of any Indian empirical
research to the contrary, it concluded that the death
penalty should be retained.

1.2.2 Its recommendations said:

It is difficult to rule out the validity of, or the strength
behind, many of the arguments for abolition. Nor
does the Commission treat lightly the argument of
irrevocability of the sentence of death, the need for
a modern approach, the severity of capital
punishment, and the strong feeling shown by
certain sections of public opinion, in stressing
deeper questions of human values.

Having regard, however, to the conditions in India,
to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality
and education in the country, to the vastness of its
area, to the diversity of its population, and to the
paramount need for maintaining law and order in
the country at the present juncture, India cannot

6 Law Commission of India, 35th Report, 1967, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf and
http://lawcommissionofindia.nic.in/1-50/Report35Vol2.pdf (last visited on 25.08.2015).

3
risk the experiment of abolition of capital
punishment.

Arguments which would be valid in respect of one
area of the world may not hold good in respect of
another area in this context. Similarly, even if
abolition in some parts of India may not make a
material difference, it may be fraught with serious
consequences in other parts.

On a consideration of all the issues involved, the
Commission is of the opinion that capital
punishment should be retained in the present state
of the country.7

(ii) The 187th Report on the Mode of Execution (2003)

1.2.3 The Commission dealt with the issue of death
penalty once more - in its 187th Report on the "Mode of
Execution of Death Sentence and Incidental
Matters" in 2003.8 This was a suo motu issue taken up
by the Commission "technological advances in the field
of science, technology, medicine, anaesthetics".9 It was
concerned only with a limited question on the mode of
execution and did not engage with the substantial
question of the constitutionality and desirability of
death penalty as a punishment.

C. Need for re-examining the 35th Report

1.3.1 The Commission's conclusion in the 35th
Report that "at the present juncture, India cannot risk the
experiment of abolition of capital punishment,"10 and its
recommendation that "capital punishment should be

7 Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main Conclusions
and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).
8 Law Commission of India, 187th Report, 2003, available at
lawcommissionofindia.nic.in/reports/187th report.pdf (last viewed on 25.08.2015).
9 Law Commission of India, 187th Report, 2003, at page 5, available at

http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed at
26.08.2015).
10 Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main

Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).

4
retained in the present state of the country,"11 were
clearly dependent on, and qualified by, the conditions
that prevailed in India at that point in time. A great deal
has changed in India, and indeed around the world,
since December 1967, so much so that a fresh look at
the issue in the contemporary context has become
desirable. Six factors require special mention.

(i) Development in India

1.3.2 The Commission's conclusions in the 35th
Report rejecting the abolition of capital punishment
were linked to the "conditions in India, to the variety of
the social upbringing of its inhabitants, to the disparity in
the level of morality and education in the country."12
1.3.3 Nevertheless, education, general well-being,
and social and economic conditions are vastly different
today from those prevailing at the time of writing the
35th Report. For example, per capita Net National
Income at constant prices, based on the 2004-2005
series was Rs. 1838.5 in 2011 - 2012, while it was Rs.
191.9 in 1967-1968.13 Similarly, adult literacy was
24.02% in 196114 and 74.0% in 2011,15 and life
expectancy (a product of nutrition, health care, etc.) was
47.1 years in 1965-197016 and 64.9 years in 2010-

11 Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main
Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).
12 Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main

Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).
13 See Table 1.1, The Statistical Appendix to the Economic Survey 2014-2015,

available at: http://indiabudget.nic.in/es2014-15/estat1.pdf (last viewed on 6.08.2015).
14 "State of Literacy", Census of India, available at Census of India 1961,

http://censusindia.gov.in/Data_Products/Library/Provisional_Population_Total_link/PD
F_Links/chapter7.pdf (last viewed on 19.08.2015).
15 "Status of Literacy", Census of India 2011, available at
http://censusindia.gov.in/2011-prov-results/data_files/mp/07Literacy.pdf (last viewed
on 19.08.2015).
16 Life Expectancy at Birth- Both Sexes Combined, 1965-70, UN Data, available at

http://data.un.org/Data.aspx?q=india+life+expectancy+1965&d=PopDiv&f=variableID
%3a68%3bcrID%3a356%3btimeID%3a103%2c104 (last viewed on 19.08.2015).

5
2015.17 The state of the country and its inhabitants has
thus changed significantly.

1.3.4 Further, the 35th Report justified its
hesitation in "risk[ing] the experiment of abolition," "at
the present juncture," on the prevailing (high) crime rate.
It expressed its concern in the following manner:
The figures of homicide in India during the several
years have not shown any marked decline. The rate
of homicide per million of the population is
considerably higher in India than in many of the
countries where capital punishment has been
abolished. 18
1.3.5 However, according to the Crime in India19
reports, published by the National Crime Records
Bureau ('NCRB') under the aegis of the Ministry of Home
Affairs, the murder rate has been in continuous and
uninterrupted decline since 1992, when it was 4.6 per
lakh of population.20 As per the latest figures for 2013,
the murder rate is 2.7 per lakh of population, after
having fallen further from 2012, when it was 2.8.21 This
decline in the murder rate has coincided with a
corresponding decline in the rate of executions, thus
raising questions about whether the death penalty has
any greater deterrent effect than life imprisonment.22

1.3.6 It is evident that the socio-economic and
cultural conditions in India, which had influenced the
17 Life Expectancy at Birth- Both Sexes Combined, 2010-2015, UN Data, available at
http://data.un.org/Data.aspx?q=india+life+expectancy+2010&d=PopDiv&f=variableID
%3a68%3bcrID%3a356%3btimeID%3a112%2c113 (last viewed on 19.08.2015).
18 Law Commission of India, 35th Report, 1967, at paras 262, 263, available at

http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
7.08.2015).
19 See Crime in India, National Crime Records Bureau, available at
http://ncrb.gov.in/CD-CII2013/Home.asp (last viewed on 2.08.2015).
20 Crime in India, 2013, National Crime Records Bureau, available at
http://ncrb.nic.in/ciiprevious/Data/CII1992/CII-1992/table-2.pdf (last viewed at
8.08.2015).
21 Crime in India, 2013, National Crime Records Bureau, available at
http://ncrb.gov.in/CD-CII2013/figure%20at%20a%20glance.pdf (last viewed on
8.08.2015).
22 See Yug Mohit Chaudhry, Hanging on Theories, Frontline, 7 September 2012, 29-

32.

6
Commission in formulating its conclusions in the 35th
Report, have changed considerably since 1967.

(ii) The new Code of Criminal Procedure in 1973

1.3.7 The Commission's recommendations in the
35 Report predate the current Code of Criminal
th

Procedure ('CrPC'), which was enacted in 1973. This
resulted in an amendment to Section 354(3), requiring
"special reasons" to be given when the death sentence
was imposed for an offence where the punishment could
be life imprisonment or death. The Supreme Court, in
Bachan Singh v. State of Punjab23 ('Bachan Singh') has
interpreted this to mean that the normal sentence for
murder should be imprisonment for life, and that only
in the rarest of rare cases should the death penalty be
imposed.

1.3.8 Section 354(3) went contrary to the
Recommendations of the 35th Report, which stated that,
"The Commission does not recommend any provision (a)
that the normal sentence for murder should be
imprisonment for life but in aggravating circumstances
the court may award the sentence of death."24

1.3.9 Pertinently, the Report also recommended
that Section 303 of the Indian Penal Code, remain
unchanged25 (subsequently held unconstitutional in
Mithu v. State of Punjab),26 and that there was no
requirement for a minimum interval between the death
sentence and the actual execution27 (subsequently
made 14 days in Shatrughan Chauhan v. Union of

23 (1980) 2 SCC 684.
24 Law Commission of India, 35th Report, 1967, at para 7 (Summary of Main
Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).
25 Law Commission of India, 35th Report, 1967, at para 4 (Summary of Main

Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 7.08.2015).
26 (1983) 2 SCC 277.
27 Law Commission of India, 35th Report, 1967, at para 1161-1162, available at

http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
7.08.2015).

7
India).28 Such developments emphasise the importance
of relooking at the Report.

(iii) The emergence of constitutional due-process
standards

1.3.10 Post-1967, India has witnessed an expansion
of the interpretation of Article 21 of the Constitution of
India, reading into the right to dignity and substantive
and due process. Most famously, Maneka Gandhi v
Union of India,29 held that the procedure prescribed by
law has to be "fair, just and reasonable, not fanciful,
oppressive or arbitrary." 30

1.3.11 Subsequently, in Bachan Singh, the Court
observed that Section 354(3) of the CrPC, 1973, is part
of the due process framework on the death penalty. In
this regard, the Court held the following:

There are numerous other circumstances justifying
the passing of the lighter sentence; as there are
countervailing circumstances of aggravation. We
cannot obviously feed into a judicial computer all
such situations since they are astrological
imponderables in an imperfect and undulating
society. Nonetheless, it cannot be over-
emphasised that the scope and concept of
mitigating factors in the area of death penalty
must receive a liberal and expansive
construction by the courts in accord with the
sentencing policy writ large in Section 354(3).
Judges should never be bloodthirsty. Hanging of
murderers has never been too good for them. Facts
and Figures, albeit incomplete, furnished by the
Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme
infrequency -- a fact which attests to the caution
and compassion which they have always brought
to bear on the exercise of their sentencing discretion
in so grave a matter. It is, therefore, imperative
28 (2014) 3 SCC 1.
29 (1978) 1 SCC 248.
30 Maneka Gandhi v. UOI, (1978) 1 SCC 248, at para 48.

8
to voice the concern that courts, aided by the
broad illustrative guide-lines indicated by us,
will discharge the onerous function with
evermore scrupulous care and humane
concern, directed along the highroad of
legislative policy outlined in Section 354(3)
viz. that for persons convicted of murder, life
imprisonment is the rule and death sentence
an exception. A real and abiding concern for
the dignity of human life postulates resistance
to taking a life through law's instrumentality.
That ought not to be done save in the rarest of
rare cases when the alternative option is
unquestionably foreclosed.31 (Emphasis
supplied)

1.3.12 The 'rarest of rare' standard has at its core
the conception of the death penalty as a sentence that
is unique in its absolute denunciation of life. As part of
its concerns for human life and human dignity, and its
recognition of the complete irrevocability of this
punishment, the Court devised one of the most
demanding and compelling standards in the law of
crimes. The emergence of the 'rarest of rare' dictum
when the "alternative option [is] unquestionably
foreclosed"32 was very much the beginning of
constitutional regulation of death penalty in India.

1.3.13 However, it is important to consider the
NCRB data on the number of death sentences awarded
annually. On average, NCRB records that 129 persons
are sentenced to death row every year, or roughly one
person every third day. In Khade, the Supreme Court,
took note of these figures and stated that this number
was "rather high"33 and appeared to suggest that the
death penalty is being applied much more widely than
was envisaged by Bachan Singh. In fact, as subsequent
pages suggest, the Supreme Court itself has come to

31 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
32 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
33 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 145 -

"[T]he number of death sentences awarded ... is rather high, making it unclear whether
death penalty is really being awarded only in the rarest of rare cases".

9
doubt the possibility of a principled and consistent
implementation of the 'rarest of rare' test.

(iv) Judicial developments on the arbitrary and
subjective application of the death penalty
1.3.14 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".34 In Bariyar, 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."35

1.3.15 Such concerns have been reiterated on
multiple occasions, where the Court has pointed that
the rarest of rare dictum propounded in Bachan Singh
has been inconsistently applied. In this context, it is
instructive to examine the observations of the Supreme
Court in Aloke Nath Dutta v. State of West
Bengal,36 Swamy Shraddhananda v. State of Karnataka
('Swamy Shraddhananda'),37 Farooq Abdul Gafur v.
State of Maharashtra ('Gafur'),38 Sangeet v. State of
Haryana ('Sangeet'),39 and Khade.40 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",41 based on the "personal predilection of the
judges constituting the Bench."42

34 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15.
35 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498,
at para 104.
36 (2007) 12 SCC 230.
37 (2008) 13 SCC 767.
38 (2010) 14 SCC 641.
39 (2013) 2 SCC 452.
40 (2013) 5 SCC 546.
41 Sangeet v. State of Haryana, (2013) 2 SCC 452.
42 Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767.

10
1.3.16 Notably, the Supreme Court has itself
admitted errors in the application of the death penalty
in various cases.43

(v) Recent Political Developments

1.3.17 Some recent developments indicate an
increase in political opinion in favour of abolition. Most
recently, in August 2015, the Tripura Assembly voted in
favour of a resolution seeking the abolition of the death
penalty.44

1.3.18 Demands for the abolition of the death
penalty have been made by the Communist Party of
India (CPI), the Communist Party of India (Marxist) [CPI
(M)], the Communist Party of India (Marxist - Leninist
Liberation) [CPI (M-L)] the Viduthalai Chiruthaigal
Katchi (VCK), the Manithaneya Makkal Katchi (MMK),
the Gandhiya Makkal Iyakkam (GMI), the Marumalarchi
Dravida Munnetra Kazhagam (MDMK), and the Dravida
Munnetra Kazhagam (DMK).45

1.3.19 On 31st July, 2015, D. Raja of the CPI
introduced a Private Member's Bill asking the
Government to declare a moratorium on death
sentences pending the abolition of the death penalty.46
In August 2015, DMK Member of Parliament Kanimozhi
introduced a private member's bill in the Rajya Sabha
seeking abolition of capital punishment.47

43 See Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC
498, Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 and Sangeet
v. State of Haryana, (2013) 2 SCC 452.
44 Syed Sajjad Ali, Tripura passes Resolution against Death Penalty, The Hindu, 7

August 2015.
45 See PTI, Left joint movement asks Centre to not hang Yakub Memon, Economic

Times, 27 July, 2015; IANS, Death penalty: CPI leader D Raja moves private member's
resolution, Economic Times, 31 July, 2015.; ET Bureau, Seeking end to death penalty,
DMK's Kanimozhi set to move private member's bill, Economic Times, 7 August, 2015;
See also: Repeal Death Penalty, CPI M-L, 30 June, 2015, available at
http://cpiml.in/cms/editorials/item/150-repeal-death-penalty (last viewed on
20.08.2015).
46 IANS, Death penalty: CPI leader D Raja moves private member's resolution,

Economic Times, 31 July, 2015.
47 ET Bureau, Seeking end to death penalty, DMK's Kanimozhi set to move private

member's bill, Economic Times 7 August, 2015.

11
(vi) International Developments

1.3.20 In 1967, when the 35th Report was presented,
only 12 countries had abolished capital punishment for
all crimes in all circumstances.48 Today, 140 countries
have abolished the death penalty in law or in practice.
Further, the number of countries that have remained
"active retentionists", namely they have executed at
least one person in the last ten years, has fallen from 51
in 2007 to 39 (as of April 2014).49 A category of countries
have also abolished death penalty for ordinary crimes
such as murder and retained it for exceptional crimes
such as crimes under military law or under exceptional
circumstances.50 The death penalty is most prominently
used in Iran, China, Pakistan, Saudi Arabia and the
United States of America.

1.3.21 The issues relating to capital sentencing and
the move towards the abolition of the death penalty
internationally subsequent to the publication of the
35th Report deserve detailed consideration.

D. The Consultation Process Adopted by the
Commission

1.4.1 In order to understand the views of all the
stakeholders, the 20th Law Commission released a
Consultation Paper in May 2014. The Commission
invited responses from those who desired to express
their views on various aspects of death penalty.

1.4.2 The Commission received over 350
responses, with varied views on the subject. Of those
supporting the death penalty, the primary
considerations were the deterrent effect of the death

48 Columbia (1910), Costa Rica (1877), Dominican Republic (1966), Ecuador (1906),
Federal Republic of Germany (1949), Honduras (1956), Iceland (1928), Monaco
(1962), Panama (1922), San Marino (1865), Uruguay (1907), Venezuela (1863). See
Law Commission of India, 35th Report, 1967, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
24.08.2015)..
49 ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE

5 (5th ed. 2015).
50 ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE

5 (5th ed. 2015).

12
penalty; demands for retribution and justice in society;
the demands of the victims' family; demands that the
punishment be proportional to the crime; and the view
that certain "heinous" criminals were not deserving of
an opportunity for reform. Of those advocating
abolition, the primary concerns were the fallibility of the
Courts and possibility of erroneous convictions; the
absence of any penological purpose and the
discriminatory and arbitrary implementation of the
death penalty. Notably, late former President of India,
Dr. APJ Abdul Kalam also sent a response to the
consultation paper, highlighting the discriminatory
impact of the death penalty.

1.4.3 To solicit further responses on the subject,
the Commission also organized a day-long Consultation
on 11th July, 2015 inviting eminent lawyers,
distinguished judges, political leaders, academics,
police officers, and representatives of civil society. A
detailed list of participants to the day-long Consultation
has been provided in an Annexure to this Report.51 The
discussion traversed issues such as India's
constitutional obligations, arbitrariness and
discrimination in the application of the death penalty,
the quality of the criminal justice system and the failure
of the rehabilitation framework.

E. The Present Report

1.5.1 In order to undertake a comprehensive study
on the issue of the abolition of the death penalty, the
Commission formed a Sub-Committee headed by the
Chairman and comprising two Part Time members - Mr.
Venkataramani and Professor (Dr.) Yogesh Tyagi, and
also included Justice K. Chandru (retd.), Professor (Dr.)
C. Raj Kumar, Mr. Dilip D'Souza, Dr. Mrinal Satish, Dr.
Aparna Chandra, Ms. Sumathi Chandrashekaran, Ms.
Vrinda Bhandari and Ms. Ragini Ahuja. Ms. Sanya
Kumar and Ms. Sanya Sud, both law students from
National Law University, Delhi provided extensive
research support to the team. The assistance provided

51 See Annexure I

13
by Mr. Pranay Nath Lekhi, Ms. Jyotsna Swamy, Mr.
Arvind Chari, Mr. Hasrat Mehta and Ms. Diksha
Agarwal, interns of Law Commission of India, and Ms.
Kritika Padode was also commendable.

1.5.2 The different members of the Sub-Committee
prepared concept papers on various facets of the death
penalty. In preparing the drafts, and in light of the call
for data-driven research and deliberations by the
Supreme Court of India in Khade and Bariyar, the
members relied on various research projects and
empirical studies relating to the death penalty. These
drafts were further discussed and revised in the course
of the deliberations of the Sub-Committee. The drafts
were also shared with the Full-Time Members of the
Commission, viz., Justice S. N. Kapoor, Justice Usha
Mehra and Prof. (Dr.) Mool Chand Sharma, as well as
Part Time Members, Dr. B. N. Mani and Prof. (Dr.)
Gurjeet Singh. Based on the suggestions of the Sub-
Committee, further revisions were made and its final
report was placed before the entire Commission. Mr.
Venkataramani and Professor (Dr.) Yogesh Tyagi made
several valuable suggestions that were taken into
consideration. Concerns expressed by Dr Sanjay Singh,
Secretary, Legislative Department and ex-officio
Member of the Commission, were also considered.

1.5.3 Thereafter, upon extensive deliberations,
discussions and in-depth study, the Commission has
given shape to the present Report.

14
CHAPTER - II

HISTORY OF THE DEATH PENALTY IN INDIA

A. Pre-Constitutional History and Constituent
Assembly Debates

2.1.1 An early attempt at abolition of the death
penalty took place in pre-independent India, when Shri
Gaya Prasad Singh attempted to introduce a Bill
abolishing the death penalty for IPC offences in 1931.
However, this was defeated.52 Around the same time, in
March 1931, following the execution of Bhagat Singh,
Sukhdev and Rajguru by the British government, the
Congress moved a resolution in its Karachi session,
which included a demand for the abolition of the death
penalty.53

2.1.2 India's Constituent Assembly Debates
between 1947 and 1949 also raised questions around
the judge-centric nature of the death penalty,
arbitrariness in imposition, its discriminatory impact on
people living in poverty, and the possibility of error.54

2.1.3 For example, on the possibility of error,
Pandit Thakur Das Bhargava said:

It is quite true that a person does not get justice
in the original court. I am not complaining of
district courts. In very many cases of riots in
which more than five persons are involved, a
number of innocent persons are implicated. I can
speak with authority on this point. I am a legal

52 Law Commission of India, 35th Report, 1967, at para 12, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
24.08.2015).
53 Special Correspondent, It's time death penalty is abolished: Aiyar, The Hindu, 7

August 2015, available at http://www.thehindu.com/news/national/its-time-death-
penalty-is-abolished-aiyar/article7509444.ece (last viewed on 24.08.2015).
54 See Constituent Assembly Debates on 3 June, 1949, Part II available at

http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).

15
practitioner and have been having criminal
practice for a large number of years.55

2.1.4 An issue of much debate had to do with the
right to appeal a death sentence. In this context, Prof.
Shibban Lal Saksena said:

I do feel that the people who are condemned to
death should have the inherent right of appeal to
the Supreme Court and must have the
satisfaction that their cases have been heard by
the highest tribunal in the country. I have seen
people who are very poor not being able to appeal
as they cannot afford to pay the counsel. I see
that article 112 says that the Supreme Court may
grant special leave to appeal from any judgment,
but it will be open to people who are wealthy,
who can move heaven and earth, but the
common people who have no money and who are
poor will not be able to avail themselves of the
benefits of this section.56

2.1.5 Dr. Ambedkar was personally in favour of
abolition saying:

My other view is that rather than have a
provision for conferring appellate power upon the
Supreme Court to whom appeals in cases of
death sentence can be made, I would much
rather than have a provision for conferring
appellate power upon the Supreme Court to
whom appeals in cases of death sentence can be
made, I would much rather support the abolition
of the death sentence itself. That, I think, is the
proper course to follow, so that it will end this
controversy. After all, this country by and large
believe in the principle of non-violence. It has
been its ancient tradition, and although people
may not be following it in actual practice, they

55 Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).
56 Constituent Assembly Debates on 3 June, 1949 Part II, available at

http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).

16
certainly adhere to the principle of non-violence
as a moral mandate which they ought to observe
as far as they possibly can and I think that
having regard to this fact, the proper thing for this
country to do is to abolish the death sentence
altogether.57

2.1.6 However, he suggested that the issue of the
desirability of the death penalty be left to the Parliament
to legislate on. This suggestion was eventually followed.

B. Legislative Backdrop

2.2.1 At independence, India retained several laws
put in place by the British colonial government, which
included the Code of Criminal Procedure, 1898 ('Cr.P.C.
1898'), and the Indian Penal Code, 1860 ('IPC'). The IPC
prescribed six punishments that could be imposed
under the law, including death.

2.2.2 For offences where the death penalty was an
option, Section 367(5) of the CrPC 1898 required courts
to record reasons where the court decided not to impose
a sentence of death:

If the accused is convicted of an offence
punishable with death, and the court sentences
him to any punishment other than death, the
court shall in its judgment state the reason why
sentence of death was not passed.

2.2.3 In 1955, the Parliament repealed Section
367(5), CrPC 1898, significantly altering the position of
the death sentence. The death penalty was no longer the
norm, and courts did not need special reasons for why
they were not imposing the death penalty in cases where
it was a prescribed punishment.

57 Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 26.08.2015).

17
2.2.4 The Code of Criminal Procedure was re-
enacted in 1973 ('CrPC'), and several changes were
made, notably to Section 354(3):

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 sentence of death, the special reasons
for such sentence.

2.2.5 This was a significant modification from the
situation following the 1955 amendment (where terms
of imprisonment and the death penalty were equal
possibilities in a capital case), and a reversal of the
position under the 1898 law (where death sentence was
the norm and reasons had to be recorded if any other
punishment was imposed). Now, judges needed to
provide special reasons for why they imposed the death
sentence.

2.2.6 These amendments also introduced the
possibility of a post-conviction hearing on sentence,
including the death sentence, in Section 235(2), which
states:

If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 360, hear the accused on
the question of sentence, and then pass sentence
on him according to law.

C. Previous Law Commission Reports

(i) The 35th Report of the Law Commission

2.3.1 The Law Commission released its 35th Report
on "Capital Punishment" in 1967, recommending that
the death penalty be retained. After considering the
arguments of the abolitionists and retentionists, the
state of the death penalty in various countries and
objectives of capital punishment, the Commission
18
recommended that the death penalty be retained in
India, saying:

Having regard, however, to the conditions in
India, to the variety of the social upbringing of
its inhabitants, to the disparity in the level of
morality and education in the country, to the
vastness of its area, to the diversity of its
population and to the paramount need for
maintaining law and order in the country at
the present juncture, India cannot risk the
experiment of abolition of capital
punishment.58

2.3.2 The Commission added that the deterrent
object of capital punishment was its "most important
object", saying it constituted "its strongest
justification".59 The Commission also commented on the
discretion courts had in terms of imposing the death
penalty or life imprisonment, finding that "the vesting
of such discretion is necessary and the provisions
conferring such discretion are working satisfactorily".60
It also said that "in the present state of the country,"
India could not risk an experiment with abolition that
would put the lives of citizens in danger.61 The
Commission also observed "that persons who have no
sufficient financial means or who for some other reason
cannot fight the cause to the last, suffer, and that the
law proves to be unjust to them, is an argument which

58 Law Commission of India, 35th Report, 1967, at para 293, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
59 Law Commission of India, 35th Report, 1967, at para 295, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
60 Law Commission of India, 35th Report, 1967, at para 580, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
61 Law Commission of India, 35th Report, 1967, at para 265, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).

19
concerns the subject of legal aid rather than the
substantive penal law."62

2.3.3 Considering if a court should give reasons
when it made its decision on whether or not to impose
the death penalty, the Commission recommended that
the law should be changed to "require the court to state
its reasons whenever it avoids either of the two
sentences in a capital case".63 The 41st Report of the
Commission on revising and re-enacting the Code of
Criminal Procedure 1898 reiterated this
recommendation.64

2.3.4 In the 35th Report, the Commission also
made recommendations on some ancillary issues. For
example, it considered the question of a right to appeal
to the Supreme Court in cases where the death
sentence was either confirmed or imposed by a High
Court, finding that this was not necessary.65 The 187th
Report of the Commission made a different
recommendation.66

2.3.5 Similarly, while the 35th Report found the
breadth of judicial discretion in capital sentencing
acceptable, later Supreme Court cases have noted why
this is problematic.67 The 35th Report also recommended

62 Law Commission of India, 35th Report, 1967, at para 265, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
63 Law Commission of India, 35th Report, 1967, at para 8, (Summary of Main

Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 26.08.2015).
64 Law Commission of India, 41st Report, 1969, at para 26.9, available at

http://lawcommissionofindia.nic.in/1-50/Report41.pdf (last viewed on 26.08.2015).
65 Law Commission of India, 35th Report, 1967, at para 982, available at

http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
66 Law Commission of India, 187th Report, 2003, at page 2- "Further, at present, there

is no statutory right of appeal to the Supreme Court in cases where High Court confirms
the death sentence passed by a Session Judge or where the High Court enhances the
sentence passed by the Session Judge and awards sentence of death. The
Commission, on a consideration of the various responses and views, recommends for
providing a statutory right of appeal against the judgment of the High Court confirming
or awarding the death sentence" available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed on
26.08.2015)
67 See Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230; Swamy

Shraddhananda v. State of Karnataka, (2008) 13 SCC 767; Santosh Bariyar v. State

20
retaining of section 303 of the Indian Penal Code, which
provides for mandatory death penalty. However, the
Supreme Court held this to be unconstitutional in 1987
in Mithu v. State of Punjab.68

(ii) The 187th Report of the Law Commission

2.3.6 In 2003, the Commission released its 187th
Report on the "Mode of Execution of Death and
Incidental Matters".69 The Commission had taken up
this matter suo motu because of the "technological
advances in the field of science, technology, medicine,
anaesthetics"70 since its 35th Report. This Report did not
address the question of whether the death penalty was
desirable. Instead, it restricted itself to three issues: (a)
the method of execution of death sentence, (b) the
process of eliminating differences in judicial opinions
among Judges of the apex Court in passing sentence of
death penalty, and (c) the need to provide a right of
appeal to the accused to the Supreme Court in death
sentence matters.71

2.3.7 After soliciting public opinion and studying
the practice on these issues in India and in other
countries, the Law Commission recommended that
Section 354(5) of the CrPC be amended to allow for the
lethal injection as a method of execution, in addition to
hanging. The Commission also recommended that there
should be a statutory right of appeal to the Supreme
Court where a High Court confirms a death sentence, or
enhances the sentence to capital punishment.
Furthermore, it suggested that all death sentence cases

of Maharashtra, (2009) 6 SCC 498; Farooq Abdul Gafur v. State of Maharashtra, (2010)
14 SCC 641.
68 (1983) 2 SCC 277.
69 Law Commission of India, 187th Report, 2003, available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed on
26.08.2015).
70 Law Commission of India, 187th Report, 2003, at page 5, available at

http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed on
26.08.2015)
71 Law Commission of India, 187th Report, 2003, at page 7, available at

http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed on
26.08.2015).

21
be heard by at least a 5-judge Bench of the Supreme
Court.72

D. Constitutionality of the Death Penalty in India

(i) From Jagmohan to Bachan Singh

2.4.1 The first challenge to the constitutionality of
the death penalty in India came in the 1973 case of
Jagmohan Singh v. State of U. P. ('Jagmohan').73 The
petitioners argued that the death penalty violated
Articles 14, 19 and 21 of the Constitution of India. It
was argued that since the death sentence extinguishes,
along with life, all the freedoms guaranteed under
Article 19(1) (a) to (g), it was an unreasonable denial of
these freedoms and not in the interests of the public.
Further, the petitioners argued that the discretion
vested in judges in deciding to impose death sentence
was uncontrolled and unguided and violated Article 14.
Finally, it was contended because the provisions of the
law did not provide a procedure for the consideration of
circumstances crucial for making the choice between
capital punishment and imprisonment for life, it
violated Article 21. The decision of the US Supreme
Court in Furman v. Georgia in which the death penalty
was declared to be unconstitutional as being cruel and
unusual punishment was also placed before the
Constitution Bench.

2.4.2 This case was decided before the CrPC was
re-enacted in 1973, making the death penalty an
exceptional sentence.

2.4.3 In Jagmohan, the Supreme Court found that
the death penalty was a permissible punishment, and
did not violate the Constitution. The Court held that:

The impossibility of laying down standards is at
the very core of the criminal law as administered

72 Law Commission of India, 187th Report, 2003, at page 3, available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed on
26.08.2015).
73 (1973) 1 SCC 20.

22
in India, which invests the Judges with a very
wide discretion in the matter of fixing the degree
of punishment. That discretion in the matter
sentences as already pointed out, is liable to be
corrected by superior courts... The exercise of
judicial discretion on well-recognised principles
is, in the final analysis, the safest possible
safeguard for the accused.74

2.4.4 The Court also held that:

If the law has given to the judge a wide discretion
in the matter of sentence to be exercised by him
after balancing all the aggravating and
mitigating circumstances of the crime, it will be
impossible to say that there would be at all any
discrimination, since facts and circumstances of
one case can hardly be the same as the facts and
circumstances of another.75

2.4.5 Around the same time, just before the CrPC
of 1973 became law, the Supreme Court also
commented on the wisdom of the introduction of the
post-conviction hearing on sentence in the case of Ediga
Anamma v. State of Andhra Pradesh.76 In commuting
the death sentence to life imprisonment, the Court
observed the following:

In any scientific system which turns the focus,
at the sentencing stage, not only on the crime
but also the criminal, and seeks to personalise
the punishment so that the reformatory
component is as much operative as the
deterrent element, it is essential that facts of a
social and personal nature, sometimes
altogether irrelevant if not injurious at the
stage of fixing the guilt, may have to be

74 Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 26.
75 Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 27.
76 (1974) 4 SCC 443.

23
brought to the notice of the Court when the
actual sentence is determined.77

2.4.6 The law's changes were, in the view of the
court, expressive of a tendency "towards cautious,
partial abolition and a retreat from total retention."78 In a
statement that reflects concerns that has acquired a
resonance, the court said, "a legal policy on life or death
cannot be left for ad hoc mood or individual predilection
and so we have sought to objectify to the extent possible,
abandoning retributive ruthlessness, amending the
deterrent creed and accenting the trend against the
extreme and irrevocable penalty of putting out life."79

2.4.7 In 1979, the case of Rajendra Prasad v. State
of Uttar Pradesh ('Rajendra Prasad')80 discussed what
the "special reasons" in imposing the death sentence
could be. The Court found itself confronting, not the
constitutionality of the death sentence, but that of
sentencing discretion. The Court per majority (of two
judges) said, "special reasons necessary for imposing
death penalty must relate, not to the crime as such but to
the criminal."81 They drew the focus in sentencing to
reformation, even as they held that it was not the nature
of the crime alone that would be relevant in deciding the
sentence. The Court said, "the retributive theory has had
its day and is no longer valid. Deterrence and reformation
are the primary social goals which make deprivation of
life and liberty reasonable as penal panacea."82
Significantly, voicing concerns that have begun to re-
emerge, the court asked: "Who, by and large, are the
men whom the gallows swallow?"83 and found that, with
a few exceptions, it was "the feuding villager ... the
striking workers ... the political dissenter ... the waifs
and strays whom society has hardened by neglect into
street toughs, or the poor householder-husband or wife

77 Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 14.
78 Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 21.
79 Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at para 26.
80 (1979) 3 SCC 646.
81 Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 88.
82 Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 88.
83 Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 77.

24
driven by necessity of burst of tantrums"84 who were
visited with the extreme penalty.

2.4.8 In 1979, different Benches of the Supreme
Court heard the cases of Dalbir Singh v. State of
Punjab,85 and Bachan Singh v. State of Punjab.86 While
Dalbir Singh relied on Rajendra Prasad to arrive at a
decision, the Bench in Bachan Singh noted that the
judgment in Rajendra Prasad was contrary to the
decision in Jagmohan, and referred it to a
Constitutional Bench. This culminated in the landmark
decision of the Constitution Bench in Bachan Singh v.
State of Punjab ('Bachan Singh').87

2.4.9 The challenge to the death penalty in Bachan
Singh was premised, among other things, on
irreversibility, fallibility, and that the punishment is
necessarily cruel, inhuman and degrading. It was also
contended that the penological purpose of deterrence
remained unproven, retribution was not an acceptable
basis of punishment, and that it was reformation and
rehabilitation which were the purposes of punishment.

2.4.10 Four of the five judges hearing this case did
not accept the contention that the death penalty was
unconstitutional. They overruled Rajendra Prasad, and
affirmed Jagmohan, when they held that the death
penalty could not be restricted to cases where the
security of the state and society, public order and the
interests of the general public were threatened. Errors,
they held, could be set right by superior courts, and pre-
sentence hearing and the procedure that required
confirmation by the High Court would correct errors.

2.4.11 In Bachan Singh, the Court adopted the
'rarest of rare' guideline for the imposition of the death
penalty, saying that reasons to impose or not impose the
death penalty must include the circumstances of the
crime and the criminal. This was also the case where

84 Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, at para 77.
85 (1979) 3 SCC 745.
86 (1980) 2 SCC 684.
87 (1980) 2 SCC 684.

25
the court made a definitive shift in its approach to
sentencing. The Court held:

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.88

2.4.12 It added:

It cannot be overemphasised that the scope and
concept of mitigating factors in the area of death
penalty must receive a liberal and expansive
construction by the courts in accord with the
sentencing policy writ large in section 354 (3).
Judges should never be blood-thirsty ... It is,
therefore, imperative to voice the concern that
courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous
function with evermore scrupulous care and
humane concern, directed along the highroad of
legislative policy outlined insection 354 (3), viz,
that for persons convicted of murder, life
imprisonment is the rule and death sentence an
exception. A real and abiding concern for the
dignity of human life postulates resistance
to taking a life through law's
instrumentality. That ought not to be done
save in the rarest of rare cases when the
alternative option is unquestionably
foreclosed. (Emphasis supplied)
89

2.4.13 Justice Bhagwati in his dissenting opinion
found the death penalty necessarily arbitrary,
discriminatory and capricious. He reasoned that "the
death penalty in its actual operation is discriminatory, for
it strikes mostly against the poor and deprived sections of
the community and the rich and the affluent usually
escape, from its clutches. This circumstance also adds to

88 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 161.
89 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.

26
the arbitrary and capricious nature of the death penalty
and renders it unconstitutional as being violative of
Articles 14 and 21."90

2.4.14 In 1991, Shashi Nayar v. Union of India,91 the
death sentence was once again challenged, among other
reasons, for the reliance placed in Bachan Singh on the
35th Report of the Commission. The Court turned down
the petition, citing the deteriorating law and order in the
country, with the observation that the time was not
right for reconsidering the law on the subject. The plea
that the execution of capital punishment by hanging
was barbaric and dehumanizing, and it should be
substituted by some other decent and less painful
method in executing the sentence, was also rejected.92

2.4.15 In the past few years, attention has also been
drawn to the arbitrary application of the Bachan Singh
framework by courts as also to the possibility of judicial
error in cases where the death sentence has been
imposed. The Supreme Court in Aloke Nath
Dutta v. State of West Bengal,93 Swamy
Shraddhananda v. State of Karnataka, 94 Santosh
Bariyar v. State of Maharashtra, and Farooq Abdul
95

Gafur v. State of Maharashtra,96 amongst other cases,
has noticed that sentencing in capital cases has become
arbitrary and that the sentencing law of Bachan Singh
has been interpreted in varied ways by different
Benches of the Court.

(ii) Mandatory Death Sentences

2.4.16 Even as the law changed to make the death
sentence the exception, and judges were expected to
exercise their discretion to adjudge whether or not the
death sentence needed to be imposed, in 1983, the

90 Bachan Singh v. State of Punjab, 1982 3 SCC 24 (J. Bhagwati, dissenting), at para
81.
91 (1992) 1 SCC 96.
92 (1992) 1 SCC 96, at para 7.
93 (2007) 12 SCC 230.
94 (2008) 13 SCC 767.
95 (2009) 6 SCC 498.
96 (2010) 14 SCC 641.

27
Court had to step in to hold that mandatory death
sentences were contrary to the rights guaranteed in
Article 14 and Article 21.

2.4.17 In the case of Mithu v. State of Punjab,97 the
Supreme Court was confronted with the mandatory
sentence of death enacted in Section 303 of the IPC. The
Court held that the mandatory death sentence was
unconstitutional, stating:

A standardized 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. It is those facts and
circumstances which constitute a safe guideline
for determining the question of sentence in each
individual case.98

2.4.18 The Court noted that:

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.99

(iii) Method of Execution

2.4.19 In 1983, the Supreme Court in Deena v.
Union of India ('Deena'),100 rejecting a constitutional
challenge to execution by hanging, held that while a

97 (1983) 2 SCC 277.
98 Mithu v. State of Punjab, (1983) 2 SCC 277, at para 16.
99 Mithu v. State of Punjab, (1983) 2 SCC 277, at para 18.
100 (1983) 4 SCC 645.

28
prisoner cannot be subjected to barbarity,
humiliation, torture or degradation before the
execution of the sentence, hanging did not involve
these either directly or indirectly. In Deena, too, there
was an attempt to revisit the constitutionality of the
death sentence, but the court did not reopen the
question.

2.4.20 In a later decision of Parmanand Katara v.
Union of India,101 the Court accepted that allowing the
body to remain hanging beyond the point of death -
the Punjab Jail Manual instructing that the body be
kept hanging for half an hour after death - was a
violation of the dignity of the person and hence
unconstitutional.

(iv) Delay and the death penalty

2.4.21 Delay has been a matter of concern in the
criminal justice system, with the adage 'justice delayed
is justice denied' being attributed to the plight of both
victims of crime as well as the accused. Long terms of
incarceration, periods of which are on death row and in
solitary confinement, have been the concerns of courts
through the years. In the case of T.V. Vatheeswaran v.
State of Tamil Nadu ('Vatheeswaran'),102 the Court held
that a delay in execution of sentence that exceeded two
years would be a violation of procedure guaranteed by
Article 21. However, in Sher Singh v. State of Punjab,103
it was held that delay could be a ground for invoking
Article 21, but that no hard and fast rule could be laid
down that delay would entitle a prisoner to quashing the
sentence of death.

2.4.22 A Constitution Bench of the Supreme Court
in the case of Triveniben v. State of Gujarat104 considered
the question, and held that only executive delay, and
not judicial delay, may be considered as relevant in an
Article 21 challenge. The Court said, "the only delay

101 (1995) 3 SCC 248.
102 (1983) 2 SCC 68.
103 (1983) 2 SCC 344.
104 (1989) 1 SCC 678.

29
which would be material for consideration will be the
delays in disposal of the mercy petitions or delay
occurring at the instance of the Executive." 105

2.4.23 If, therefore, there is inordinate delay in
execution, the condemned prisoner is entitled to come
to the court requesting to examine whether, it is just
and fair to allow the sentence of death to be executed.

2.4.24 The Court also held:

Undue long delay in execution of the sentence of
death will entitle the condemned person to
approach this Court under Article 32 but this
Court will only examine the nature of delay
caused and circumstances ensued after sentence
was finally confirmed by the judicial process and
will have no jurisdiction to re-open the
conclusions reached by the Court while finally
maintaining the sentence of death... No fixed
period of delay could be held to make the
sentence of death inexecutable.106

2.4.25 This was reaffirmed in the case of Shatrughan
Chauhan v Union of India.107 This case also laid down
guidelines for "safeguarding the interest of the death row
convicts",108 which included reaffirming the
unconstitutionality of solitary or single cell confinement
prior to rejection of the mercy petition by the President,
necessity of providing legal aid, and the need for a 14-
day period between the rejection of the mercy petition
and execution.

2.4.26 Recently, the Supreme Court also upheld the
constitutionality of Section 364A, IPC, which allows for
the imposition of the death sentence in cases of
kidnapping with ransom. In the case of Vikram Singh v.
Union of India,109 it had been argued that Section 364A
105 Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 17.
106 Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 23.
107 (2014) 3 SCC 1.
108 Shatrughan Chauhan v. UOI, (2014) 3 SCC 1, at para 241.
109 Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of

2013, Supreme Court of India, decided on August 21, 2015.

30
was unconstitutional, among other things, because it
denied courts the discretion of awarding a punishment
that was not life imprisonment or the death sentence
especially in cases of kidnapping which may not
warrant such a high punishment. The Supreme Court
acknowledged that "punishments must be proportionate
to the nature and gravity of the offences for which the
same are prescribed".110 However, it held that "Section
364A cannot be dubbed as so outrageously
disproportionate to the nature of the offence as to call for
the same being declared unconstitutional",111 saying
death sentences would only be awarded in the rarest of
rare cases. The Court did not address the question of
whether the death sentence was an appropriate
punishment for a non-homicide offence, or applicable
international law standards on this issue.

E. Laws on the death penalty in India

2.5.1 Under the IPC, the death sentence may be
imposed for several offences, including:

Table 2.1: Capital Offences in IPC
S. No Section Number Description
1. Section 121 Treason, for waging war against the
Government of India
2. Section 132 Abetment of mutiny actually committed
3. Section 194 Perjury resulting in the conviction and
death of an innocent person
4. Section 195A Threatening or inducing any person to
give false evidence resulting in the
conviction and death of an innocent
person
5. Section 302 Murder
6. Section 305 Abetment of a suicide by a minor, insane
person or intoxicated person
7. Section 307 (2) Attempted murder by a serving life convict
8. Section 364A Kidnapping for ransom
9. Section 376A Rape and injury which causes death or
leaves the woman in a persistent
vegetative state
10. Section 376E Certain repeat offenders in the context of
rape
11. Section 396 Dacoity with murder

110 Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of
2013, Supreme Court of India, decided on August 21, 2015, at para 49.
111 Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of

2013, Supreme Court of India, decided on August 21, 2015, at para 50.

31
2.5.2 The death penalty may also be imposed if
someone is found guilty of a criminal conspiracy to
commit any of these offences.112

2.5.3 Besides the IPC, several laws prescribe the
death penalty as a possible punishment in India. These
include:

Table 2.2: Capital Offences in other laws
S. No Section Number Act
1. Sections 34, 37, and 38(1) The Air Force Act, 1950
2. Section 3(1)(i) The Andhra Pradesh Control of
Organised Crime Act, 2001
3. Section 27(3) The Arms Act, 1959 (repealed)
4. Sections 34, 37, and 38(1) The Army Act, 1950
5. Sections 21, 24, 25(1)(a), The Assam Rifles Act, 2006
and 55
6. Section 65A(2) The Bombay Prohibition (Gujarat
Amendment) Act, 2009
7. Sections 14, 17, 18(1)(a), The Border Security Force Act, 1968
and 46
8. Sections 17 and 49 The Coast Guard Act, 1978
9. Section 4(1) The Commission of Sati (Prevention)
Act, 1987
10. Section 5 The Defence of India Act, 1971
11. Section 3 The Geneva Conventions Act, 1960
12. Section 3 (b) The Explosive Substances Act, 1908
13. Sections 16, 19, 20(1)(a), The Indo-Tibetan Border Police Force
and 49 Act, 1992
14. Section 3(1)(i) The Karnataka Control of Organised
Crime Act, 2000
15. Section 3(1)(i) The Maharashtra Control of Organised
Crime Act, 1999
16. Section 31A(1) The Narcotics Drugs and Psychotropic
Substances Act, 1985
17. Sections 34, 35, 36, 37, 38, The Navy Act, 1957
39, 43, 44, 49(2)(a), 56(2),
and 59
18. Section 15(4) The Petroleum and Minerals Pipelines
(Acquisition of rights of user in land)
Act, 1962
19. Sections 16, 19, 20(1)(a), The Sashastra Seema Bal Act, 2007
and 49
20. Section 3(2)(i) The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,
1989
21. Section 3(1)(i) The Suppression of Unlawful Acts
against Safety of Maritime Navigation
and Fixed Platforms on Continental
Shelf Act, 2002;
22. Sections 10(b)(i) and The Unlawful Activities Prevention Act,
Section 16(1)(a) 1967

112 Section 120B, Indian Penal Code, 1860.

32
(i) Recent expansions of the scope of the death
penalty

2.5.4 Several of these enactments have been
passed relatively recently. For example, passed in 2013,
the Criminal Law (Amendment) Act introduced several
new provisions into the IPC, including Section 376A,
which allowed for the death penalty to be imposed in
cases where rape led to the death of the victim, or left
her in a persistent vegetative state; and 376E which
allowed for the imposition of the death penalty for
certain repeat offenders. These amendments were
passed in the wake of the recommendations of the
Verma Committee.113 Pertinently, while the Verma
Committee was in favour of enhanced punishment for
certain forms of sexual assault and rape, it noted that
"in the larger interests of society, and having regard to
the current thinking in favour of abolition of the death
penalty, and also to avoid the argument of any
sentencing arbitrariness, we are not inclined to
recommend the death penalty."114 The Criminal Law
(Amendment) Act, 2013, nevertheless expanded the
scope of the death penalty.

2.5.5 There is currently a Bill pending in
Parliament, the Anti-Hijacking (Amendment) Bill 2014,
which also prescribes the death penalty.115

(ii) The Death Penalty and Non-Homicide offences

2.5.6 Several offences for which the death penalty
is prescribed include non-homicide offences, and do not

113 See Verma Committee Report, 2013, available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma
%20committe%20report.pdf (last viewed on 26.08.2015).
114 See Verma Committee Report, 2013, at page 246, available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma
%20committe%20report.pdf (last viewed on 26.08.2015).
115 See PRS India, Anti-Hijacking Bill, 2014, available at
http://www.prsindia.org/billtrack/the-anti-hijacking-amendment-bill-2014-3500/ (last
viewed on 15.08.2015).

33
meet the threshold of "most serious crimes" as required
by international law.116 These include:

Table 2.3: Non-Homicide Capital Offences

S. No Section Number Act
1. Section 34, Section 37 The Air Force Act, 1950
and Section 38)
2. Section 34, Section 37 The Army Act, 1950
and Section 38
3. Section 21, Section 24 The Assam Rifles Act, 2006
and Section 25
4. Section 14, Section 17 The Border Security Force Act, 1968
and Section 18
5. Section 17, Section 49 The Coast Guard Act, 1978
6. Section 3 The Explosive Substances Act, 1908
7. Section 120B, Section The Indian Penal Code, 1860
121 (waging war),
Section 132, Section
194, Section 195A,
Section 364A (added
by Criminal Law
(Amendment) Act,
1993, Section 376E
(added by Criminal
Law (Amendment) Act,
2013)
8. Section 16, Section 19 Indo-Tibetan Border Police Force Act,
and Section 20 1992
9. Section 31 The Narcotic Drugs and Psychotropic
Substances Act, 1985
10. Section 34, Section 35, The Navy Act, 1957
Section 26, Section 37,
Section 38, Section 39,
Section 43, Section 44,
Section 49, Section 56,
Section 59
11. Section 15 The Petroleum and Mineral Pipelines
(Acquisition of Right of User in Land)
Act, 1962
12. Section 16, Section 19 The Sashastra Seema Bal Act, 2007
and Section 20
13. Section 3 The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,
1989

116 Article 6(2), ICCPR, "In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to
a final judgment rendered by a competent court."

34
(iii) Continued existence of the mandatory death
penalty

2.5.7 Despite the fact that the Supreme Court
found the mandatory death penalty to be
unconstitutional and arbitrary, the Parliament has
since enacted laws that continue to prescribe the
mandatory death penalty. The Suppression of Unlawful
Acts against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002, in Section
3(g)(i), the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, in Section 3(2)(i) and
Section 27(3) of the Arms Act continue to prescribe a
mandatory death sentence. The mandatory death
sentence was also introduced into the Narcotics and
Psychotropic Substances Act 1985 by amendment in
1989. The Bombay High Court declared it to be
unconstitutional in 2010,117 and the Act was finally
amended to remove it only in 2014.

(iv) Death penalty and anti-terror laws

2.5.8 Many laws under which the death penalty
continues to be imposed have to do with terrorist
offences. For example, death sentences under the
Terrorist and Disruptive Activities Act, 1987 ('TADA'),
Prevention of Terrorism Act, 2002 ('POTA'), and
Unlawful Activities Prevention Act, 1967 ('UAPA'),
continue to be imposed and upheld. For one thing, these
death sentences are implemented even when the
underlying law in some of these cases has either been
repealed (TADA) or has lapsed (POTA). TADA in
particular was repealed in the face of criticism for not
respecting fair trial guarantees and amidst widespread
allegations of abuse. Provisions in the TADA, POTA and
now UAPA did not provide for the full range of fair trial
guarantees: they defined offences vaguely, thus
compromising the principle of legality; reversed the
presumption of innocence in certain instances; allowed
for long periods of pre-charge detention; made certain

117Indian Harm Reduction Network v. The Union of India, Criminal Appeal No.
1784/2010, Bombay High Court.

35
confessions to specific police officials admissible as
evidence; and limited the right to appeal by only
allowing appeals to the Supreme Court.

(v) Bills proposing abolition of the death penalty

2.5.9 Before independence, Shri Gaya Prasad
Singh attempted to introduce a Bill abolishing the death
penalty for IPC offences in 1931, which was defeated.118
Since independence, M.A. Cazmi's Bill to amend Section
302 IPC in 1952 and 1954, Mukund Lal Agrawal's Bill
in 1956, Prithviraj Kapoor's resolution in the Rajya
Sabha in 1958 and Savitri Devi Nigam's 1961 resolution
had all sought to abolish the death penalty.119 In 1962,
Shri Raghunath Singh's resolution for abolition of the
death penalty was discussed in the Lok Sabha, and
following this the matter was referred to the Law
Commission, resulting in the 35th Commission
Report.120

2.5.10 At present, two bills moved by Rajya Sabha
Members of Parliament are relevant to the issue.
Kanimozhi has moved a Private Member's Bill
demanding the abolition of the death penalty,121 and D.
Raja has moved a Private Member's Bill asking the
Government to declare a moratorium on death
sentences pending the abolition of the death penalty.122

F. Recent Executions in India

2.6.1 A study conducted by Amnesty International-
PUCL (studying all death penalty cases from 1950-2006
in India) has noted the lack of clarity and official
118 Law Commission of India, 35th Report, 1967, at para 12, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
119 See Law Commission of India, 35th Report, 1967, at para 15-18, available at

http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
120 See Law Commission of India, 35th Report, 1967, at para 1, available at

http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on
26.08.2015).
121 Special Correspondent, Kanimozhi to move Bill to abolish death penalty, The Hindu,

July 31 2015.
122 IANS, Death penalty: CPI leader D Raja moves private member's resolution,

Economic Times, 31 July, 2015.

36
information available on the numbers of people who
have been executed in India, but suspected that the
number of executions during this period probably ran
into thousands.123 There has, however, been a reduction
in the number of people being executed over time.

2.6.2 Dhananjoy Chatterjee was executed in 2004,
after a period of about 7 years since the last execution.
The previous recorded execution had been in 1997.124
After 2004, India had an unofficial moratorium in
executions for eight years, until Ajmal Kasab was
executed in November 2012. Two executions have
happened since: Afzal Guru was executed in February
2013, and Yakub Memon was executed in July 2015.

2.6.3 Having examined the history of the death
penalty in India, and the recent expansion of its scope,
it is instructive to next consider world-wide trends and
international law provisions on the issue.

123 Amnesty International, Lethal Lottery: The Death Penalty in India, ASA 20/07/2008,
at page 24, available at https://www.amnesty.org/en/documents/ASA20/007/2008/en/
(last viewed on 26.08.2015).
124 Amnesty International, Lethal Lottery: The Death Penalty in India, ASA 20/07/2008,

at page 24, available at https://www.amnesty.org/en/documents/ASA20/007/2008/en/
(last viewed on 26.08.2015).

37
CHAPTER - III

INTERNATIONAL TRENDS
3.1 The international landscape regarding the
death penalty - both in terms of international law and
state practice - has evolved in the past decades. As
compared to 1967, when the 35th Report of the
Commission was issued, and 1980, when the Bachan
Singh125 judgement was delivered, today a majority of
the countries in the world have abolished the death
penalty in law or practice. Even those who retain it,
carry out far fewer executions than was the case some
decades ago.
3.2 This chapter describes the transformation in
the international landscape over the past decades, and
the marked trend towards abolition in both
international as well as domestic laws, through a study
of applicable international law, political commitments
and state practice.
3.3. The aim of this chapter is not to highlight
international law norms applicable to the Indian state.
Several treaties and instruments mentioned here have
either not been signed or ratified by the Indian
government, or are inapplicable to India for other
reasons. Instead, this chapter provides an overview of
the international landscape pertinent to the legal
regulation of the death penalty, and the changes in it
over time.
3.4 Internationally, countries are classified on
their death penalty status, based on the following
categories:126
 Abolitionist for all crimes

125(1980) 2 SCC 684.
126 This system is followed by the United Nations and by non-governmental
organizations like Amnesty International. See for example, "Capital punishment and
implementation of the safeguards guaranteeing protection of the rights of those facing
the death penalty" Report of the Secretary-General, E/2015/49 [advance, unedited
version] at page 4; See Annex II, Amnesty International, Death Sentences and
Executions in 2014, ACT 50/001/2015.

38
 Abolitionist for ordinary crimes127
 Abolitionist de facto128
 Retentionist

3.5 At the end of 2014, 98 countries were
abolitionist for all crimes, seven countries were
abolitionist for ordinary crimes only, and 35 were
abolitionist in practice, making 140 countries in the
world abolitionist in law or practice. The list of 140
countries includes three that formally abolished the
death penalty in 2015, i.e., Suriname, Madagascar and
Fiji.129 58 countries are regarded as retentionist, who
still have the death penalty on their statute book, and
have used it in the recent past.130

3.6 While only a minority of countries retain and
use the death penalty, this list includes some of the
most populous nations in the world, including India,
China, Indonesia and the United States, making a
majority of people in the world potentially subject to this
punishment.

127 This means that "the death penalty has been abolished for all ordinary offences
committed in peacetime, such as those contained in the criminal code or those
recognized in common law (for example, murder, rape and robbery with violence). The
death penalty is retained only for exceptional circumstances, such as military offences
in time of war, or crimes against the State, such as treason, terrorism or armed
insurrection"- Capital punishment and implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty, Report of the Secretary-
General, E/2015/49 [advance, unedited version] at page 4.
128 This refers to states where "the death penalty remains lawful and where death

sentences may still be pronounced but where executions have not taken place for 10
years", or states "that have carried out executions within the previous 10 years but that
have made an international commitment through the establishment of an official
moratorium", Capital punishment and implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty, Report of the Secretary-
General, E/2015/49 [advance, unedited version] at page 4. Amnesty International
follows a slightly different definition: Countries which retain the death penalty for
ordinary crimes such as murder but can be considered abolitionist in practice in that
they have not executed anyone during the last 10 years and are believed to have a
policy or established practice of not carrying out executions. Annex II, Amnesty
International, Death Sentences and Executions in 2014, ACT 50/001/2015.
129 See On the way out--with grisly exceptions, The Economist, 4 July 2015, available

at http://www.economist.com/news/international/21656666-few-countries-are-
applying-death-penalty-more-freely-global-trend-towards (last viewed on 20.08.2015).
130 Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT

50/001/2015.

39
Sourced from The Economist: "On the way out--with grisly exceptions" The
Economist, 4 July 2015, available at
http://www.economist.com/news/international/21656666-few-countries-
are-applying-death-penalty-more-freely-global-trend-towards

3.7 This map shows four types of regions: the
regions in red are retentionist, and use the death
penalty for ordinary crimes; regions in orange-pink have
abolished the death penalty in practice, and are
abolitionist de facto; regions in dark pink have only
retained the death penalty for exceptional crimes, and
are abolitionist for ordinary crimes; and regions in light
pink/white do not retain the death penalty and have
abolished it for all crimes.
A. Developments in the International Human
Rights Law Framework
(i) Capital Punishment in International Human
Rights Treaties
3.8.1 Capital punishment has been regulated in
international human rights treaties as one aspect of the
right to life, as contained in the International Covenant
on Civil and Political Rights ('ICCPR'). With time, some
aspects of the imposition and implementation of capital
punishment have also been found to violate the
prohibition against cruel, inhuman, and degrading
40
treatment and punishment. With the coming into force
of the Second Optional Protocol to the ICCPR, the
international community saw the first global,
international legal instrument that aimed at abolishing
the death penalty.
a. The International Covenant on Civil and Political
Rights
3.8.2 The International Covenant on Civil and
Political Rights ('ICCPR') is one of the key documents
discussing the imposition of death penalty in
international human rights law. The ICCPR does not
abolish the use of the death penalty, but Article 6
contains guarantees regarding the right to life, and
contains important safeguards to be followed by
signatories who retain the death penalty.
3.8.3 Article 6(2) states:
In countries which have not abolished the death
penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law
in force at the time of the commission of the crime
and not contrary to the provisions of the present
Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide. This
penalty can only be carried out pursuant to a final
judgment rendered by a competent court.
3.8.4 Article 6(4) requires states to ensure that
"Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence. Amnesty, pardon
or commutation of the sentence of death may be granted
in all cases", and Article 6(5) mandates that a "Sentence
of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be
carried out on pregnant women."
3.8.5 The UN Human Rights Committee (the UN
body whose interpretations of the ICCPR are considered
authoritative) discussed Article 6 of the ICCPR in detail
in its General Comment in 1982. The Committee
clarified that while the ICCPR did not explicitly require

41
the abolition of the death penalty, abolition was
desirable, and the Committee would consider any move
towards abolition as "progress in the enjoyment of the
right to life."131 The Committee also said that death
penalty should be an "exceptional measure". It
reiterated important procedural safeguards including
that the death penalty can only be imposed in
accordance with the law in force at the time of the
commission of the crime, and that the right to a fair
hearing by an independent tribunal, the presumption of
innocence, minimum guarantees for the defence, and
the right to review by a higher tribunal must all be
strictly observed.132
3.8.6 The Committee also reviews periodic reports
of state-parties to the ICCPR, and has often referred to
abolition of the death penalty in its observations on
reports of retentionist states.133 In other cases, the
Committee has also reiterated the importance of
following the safeguards listed in Article 6 and other
provisions of the ICCPR, and provided a roadmap to
abolition.134

131 Human Rights Committee, General Comment No 6 (1982) at para 6, Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994)-"The article also refers generally to
abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is
desirable. The Committee concludes that all measures of abolition should be
considered as progress in the enjoyment of the right to life within the meaning of article
40, and should as such be reported to the Committee".
132 Human Rights Committee, General Comment No 6 (1982) at Para 7, Compilation

of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994).
133 For example, in 2014, it recommended that Sierra Leone "should expedite its efforts

to abolish the death penalty and to ratify the Second Optional Protocol to the
Covenant", in para 18, UN Human Rights Committee, Concluding observations on the
initial report of Sierra Leone, 25 March 2014, CCPR/C/SLE/CO/1. In 2009, it noted that
while Russia had a de facto moratorium on executions since 1996, it "should take the
necessary measures to abolish the death penalty de jure at the earliest possible
moment, and consider acceding to the Second Optional Protocol to the Covenant", in
para 12, UN Human Rights Committee, Concluding observations of the Human Rights
Committee: Russian Federation, 24 November 2009, CCPR/C/RUS/CO/6.
134 For example, in its 2008 review of Japan, the Committee recommended,

"Regardless of opinion polls, the State party should favourably consider abolishing the
death penalty and inform the public, as necessary, about the desirability of abolition" in
para 16, UN Human Rights Committee, Concluding observations of the Human Rights
Committee: Japan, 18 December 2008, CCPR/C/JPN/CO/5. Similarly, in 2006 the
Committee asked the United States to "review federal and state legislation with a view
to restricting the number of offences carrying the death penalty ... the State party
should place a moratorium on capital sentences, bearing in mind the desirability of

42
3.8.7 At present, 168 states, including India, are
parties to the ICCPR. The Committee reviewed India's
report in 1996 and recommended that India "abolish by
law the imposition of the death penalty on minors and
limit the number of offences carrying the death penalty to
the most serious crimes, with a view to its ultimate
abolition."135
b. The Second Optional Protocol to the ICCPR,
aiming at the abolition of the death penalty
3.8.8 The Second Optional Protocol to the ICCPR,
aiming at the abolition of the death penalty is the only
treaty directly concerned with abolishing the death
penalty, which is open to signatures from all countries
in the world. It came into force in 1991, and has 81
states parties and 3 signatories. India has not signed
this treaty.
3.8.9 Article 1 of the Second Optional Protocol
states that "No one within the jurisdiction of a State Party
to the present Protocol shall be executed", and that "Each
State Party shall take all necessary measures to abolish
the death penalty within its jurisdiction." No reservations
are permitted to the Second Optional Protocol, "except
for a reservation made at the time of ratification or
accession that provides for the application of the death
penalty in time of war pursuant to a conviction for a most
serious crime of a military nature committed during
wartime."136 Some state parties have made such
reservations.
c. The Convention on the Rights of the Child
3.8.10 Similar to the ICCPR, Article 37(a) of the
Convention on the Rights of the Child ('CRC') explicitly
prohibits the use of the death penalty against persons

abolishing death penalty" in para 29, UN Human Rights Committee, Concluding
observations of the Human Rights Committee: United States of America, 15 September
2006, CCPR/C/USA/CO/3.
135 UN Human Rights Committee, Concluding observations of the Human Rights

Committee: India, 4 August 1997, CCPR/C/79/Add.81 at para 20.
136 Article 2 (1), Second Optional Protocol to the ICCPR, aiming at the abolition of the

death penalty.

43
under the age of 18. As of July 2015, 195 countries had
ratified the CRC. Article 37(a) states:
States Parties shall ensure that: (a) No child shall
be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital
punishment nor life imprisonment without
possibility of release shall be imposed for offences
committed by persons below eighteen years of age.
3.8.11 The Committee on the Rights of the Child
has clarified that while some presumed the rule only
prohibited the execution of persons below the age of
18, "death penalty may not be imposed for a crime
committed by a person under 18 regardless of his/her
age at the time of the trial or sentencing or of the
execution of the sanction."137
d. The Convention against Torture and Cruel,
Inhuman or Degrading Treatment or Punishment
3.8.12 Increasingly, there is an analysis of the death
penalty as violating norms against torture and cruel,
inhuman, and degrading treatment or punishment.138
In this context, the Convention against Torture and
Cruel, Inhuman or Degrading Treatment or Punishment
('the Torture Convention') and the UN Committee
against Torture have been sources of jurisprudence for
limitations on the death penalty as well as necessary
safeguards.
3.8.13 The Torture Convention does not regard the
imposition of death penalty per se as a form of torture
or cruel, inhuman or degrading treatment or
punishment ('CIDT'). However, some methods of

137 Committee on the Rights of the Child, General Comment 10: Children's rights in
juvenile justice, 25 April 2007, CRC/C/GC/10, at para 75, available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf (last viewed on
25.08.2015).
138 See, for example, Office of the High Commissioner for Human Rights, Death penalty

increasingly viewed as torture, UN Special Rapporteur finds, 23 October 2012,
available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12685&La
ngID=E#sthash.Gu6NTA2d.dpuf (last viewed on 25.08.2015).

44
execution139 and the phenomenon of death row140 have
been seen as forms of CIDT by UN bodies. While India
has signed the Torture Convention, it has yet not
ratified it.
e. International Criminal Law
3.8.14 The international trend towards abolition of
the death penalty is also visible in the evolution of
international criminal law. The death penalty was a
permissible punishment in the Nuremberg141 and
Tokyo142 tribunals, both of which were established
following World War II. Since then, however,
international criminal courts - including the Statute of
the International Criminal Tribunal for the former
Yugoslavia,143 the Statute of the International Criminal
Tribunal for Rwanda,144 the Statute of the Special Court

139 The Committee against Torture was "specially troubled by the recent cases of
botched executions in Arizona, Oklahoma, and Ohio" and asked the US to "review its
execution methods in order to prevent pain and prolonged suffering", in para 25,
Concluding observations on the combined third to fifth periodic reports of the United
States of America, 19 December 2014, CAT/C/USA/CO/3-5.
140 In its Concluding Observations on Kenya's report, the Committee against Torture

said that it remained concerned about the "uncertainty of those who serve on death
row, which could amount to ill-treatment", and urged Kenya to "take the necessary
steps to establish an official and publicly known moratorium of the death penalty with
a view of eventually abolishing the practice", in para 29, UN Committee Against Torture,
Concluding observations of the Committee against Torture: Kenya, 19 January
2009, CAT/C/KEN/CO/1.
While reviewing China's periodic report, the Committee against Torture expressed
concern "at the conditions of detention of convicted prisoners on death row, in particular
the use of shackles for 24 hours a day, amounting to cruel, inhuman or degrading
treatment", in para 34, UN Committee Against Torture, Concluding observations of the
Committee against Torture: China, 12 December 2008, CAT/C/CHN/CO/4.
In the context of Japan, the Committee found that "unnecessary secrecy and
arbitrariness surrounding the time of execution" and "principle of solitary confinement
after the final sentence is handed down" could amount to CIDT, in para 19, UN
Committee Against Torture, Conclusions and Recommendations of the Committee
against Torture: Japan, 3 August 2007, CAT/C/JPN/CO/1.
141 United States Holocaust Memorial Museum, International Military Tribunal at

Nuremberg, Last updated 18 August 2015, available at:
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069 (last viewed on
25.08.2015).
142 University of Virginia, The Tokyo War Crimes Trial: A digital exhibition, available at:

http://lib.law.virginia.edu/imtfe/tribunal (last viewed on 20.08.2015).
143 Statute of the International Criminal Tribunal for the former Yugoslavia, available at:

http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (last viewed
on 15.08.2015).
144 Statute of the International Criminal Tribunal for Rwanda, available at:

http://legal.un.org/avl/pdf/ha/ictr_EF.pdf (last viewed on 15.08.2015).

45
for Sierra Leone145 and the Law on the Establishment of
the Extraordinary Chambers in the Courts of
Cambodia146 - exclude the death penalty as a
permissible punishment. The same is true for the Rome
Statute of the International Criminal Court,147 where
judges may only impose terms of imprisonment. It must
be noted that these tribunals do not use the death
penalty, despite routinely dealing with the most serious
crimes under international law, including genocide, war
crimes, and crimes against humanity. It is relevant to
that India is not signatory to the Rome Statute.
f. International Treaty Obligations in Indian Law
3.8.15 Of the treaties mentioned above, India has
ratified the ICCPR and the CRC, and is signatory to the
Torture Convention but has not ratified it. Under
international law, treaty obligations are binding on
states once they have ratified the treaty.148 Even where
a treaty has been signed but not ratified, the state is
bound to "refrain from acts which would defeat the object
and purpose of a treaty".149
3.8.16 In India, domestic legislation is required to
make international treaties enforceable in Indian law.150
The Protection of Human Rights Act, 1994, incorporates
the ICCPR into India law through section 2(d) and 2(f).
Section 2 (d) states that, "human rights" means the
rights relating to life, liberty equality and dignity of the
individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by courts in
India. Section 2(f) states that, "International Covenants"
means the International Covenant on Civil and Political

145 Statute of the Special Court for Sierra Leone, available at:
http://www.rscsl.org/Documents/scsl-statute.pdf (last viewed on 15.08.2015).
146 Law on the Establishment of the Extraordinary Chambers in the Courts of

Cambodia, available at: http://www.eccc.gov.kh/sites/default/files/legal-
documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf (last viewed on
15.08.2015).
147Rome Statute of the International Criminal Court, available at: http://www.icc-

cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-
0a655eb30e16/0/rome_statute_english.pdf (last viewed on 15.08.2015).
148 See Article 26, Vienna Convention on the Law of Treaties (VCLT): "Every treaty in

force is binding upon the parties to it and must be performed by them in good faith."
149 Article 18, Vienna Convention on the Law of Treaties (VCLT).
150 Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 AIR 470

46
Rights and the International Covenant on Economic,
Social and Cultural rights adopted by the General
Assembly of the United Nations on the 16th December,
1966.
3.8.17 Further, according to Article 51(c) of the
Indian Constitution, the state shall endeavor to "foster
respect for international law and treaty obligations in the
dealings of organised peoples with one another." While
this does not make all of India's treaty obligations
automatically binding on India, courts have respected
rules of international law where there is no
contradictory legislation in India.151
(ii) Safeguards regarding capital punishment in
international law
3.8.18 Resolutions by bodies of the United Nations,
as well as comments and reports by UN special
procedures, have also contributed to international law
standards regarding the death penalty and essential
safeguards where it is being used. The trend in most of
these instruments is towards limiting the scope of the
death penalty globally, and encouraging abolition where
possible.
a. The ECOSOC Safeguards
3.8.19 The UN Economic and Social Council
(ECOSOC) has issued several resolutions prescribing
safeguards regarding how the death penalty should be
imposed in countries where it is retained. These
safeguards comprise important limitations to the scope
and application of the death penalty in international
law.
3.8.20 The first ECOSOC resolution titled
"Safeguards guaranteeing protection of the rights of

151 In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, for
example, the Supreme Court of India said: "Any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must be read into
those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the
meaning and content thereof and to promote the object of constitutional guarantee."

47
those facing the death penalty" was adopted in 1984,152
and contained the following nine safeguards:
1. In countries which have not abolished the death
penalty, capital punishment may be imposed only
for the most serious crimes, it being understood that
their scope should not go beyond intentional crimes
with lethal or other extremely grave consequences.
2. Capital punishment may be imposed only for a
crime for which the death penalty is prescribed by
law at the time of its commission, it being
understood that if, subsequent to the commission of
the crime, provision is made by law for the
imposition of a lighter penalty, the offender shall
benefit thereby.
3. Persons below 18 years of age at the time of the
commission of the crime shall not be sentenced to
death, nor shall the death sentence be carried out
on pregnant women, or on new mothers, or on
persons who have become insane.
4. Capital punishment may be imposed only when
the guilt of the person charged is based upon clear
and convincing evidence leaving no room for an
alternative explanation of the facts.
5. Capital punishment may only be carried out
pursuant to a final judgement rendered by a
competent court after legal process which gives all
possible safeguards to ensure a fair trial, at least
equal to those contained in article 14 of the
International Covenant on Civil and Political Rights,
including the right of anyone suspected of or
charged with a crime for which capital punishment
may be imposed to adequate legal assistance at all
stages of the proceedings.
6. Anyone sentenced to death shall have the right
to appeal to a court of higher jurisdiction, and steps
152 Safeguards guaranteeing protection of the rights of those facing the death penalty,
Approved by Economic and Social Council resolution 1984/50 of 25 May 1984,
available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx
(last viewed on 3.08.2015).

48
should be taken to ensure that such appeals shall
become mandatory.
7. Anyone sentenced to death shall have the right
to seek pardon, or commutation of sentence; pardon
or commutation of sentence may be granted in all
cases of capital punishment.
8. Capital punishment shall not be carried out
pending any appeal or other recourse procedure or
other proceeding relating to pardon or commutation
of the sentence.
9. Where capital punishment occurs, it shall be
carried out so as to inflict the minimum possible
suffering.
3.8.21 Two subsequent resolutions introduced
additional safeguards.
3.8.22 A 1989 ECOSOC resolution added more
safeguards, including encouraging transparency in the
imposition of the death penalty (including publishing
information and statistics on the issue); the
establishment of a maximum age beyond which a
person cannot be executed; and abolishing the death
penalty "for persons suffering from mental retardation or
extremely limited mental competence, whether at the
stage of sentence or execution."153
3.8.23 In 1996, a third ECOSOC resolution154
encouraged states to ensure that each defendant facing
a death sentence is given all guarantees to ensure a fair
trial. It specifically urged states to ensure that that
defendants who do not sufficiently understand the
language used in court are fully informed of the charges
against them and the relevant evidence, and that they
had enough time to appeal their sentence and ask for

153 Implementation of safeguards guaranteeing protection of the rights of those facing
the death penalty, ECOSOC Resolution 1989/64, available at:
https://www.unodc.org/documents/commissions/CCPCJ/Crime_Resolutions/1980-
1989/1989/ECOSOC/Resolution_1989-64.pdf (last viewed on 3.08.2015).
154 Safeguards guaranteeing protection of the rights of those facing the death penalty,

ECOSOC Resolution 1996/15, at para 6, available at:
http://www.un.org/documents/ecosoc/res/1996/eres1996-15.htm (last viewed on
3.08.2015).

49
clemency. It also asked states to ensure that officials
involved in decisions to carry out an execution are fully
informed of the status of appeals and petitions for
clemency.
b. Reports by the Special Rapporteur on
extrajudicial, summary or arbitrary executions
3.8.24 Where the imposition and execution of a
death sentence does not follow norms of international
law, it can be considered an extrajudicial execution by
the state, and the Special Rapporteur on extrajudicial,
summary or arbitrary executions ('SR on EJEs') has,
over time, commented on several aspects of the capital
punishment debate.
3.8.25 For example, in 2006, the SR on EJE released
a report on transparency in the use of the death
penalty.155 In 2007, the SR on EJEs, in a survey of
existing treaty obligations, jurisprudence, and
statements by UN treaty bodies, said "the death penalty
can only be imposed in such a way that it complies with
the stricture that it must be limited to the most serious
crimes, in cases where it can be shown that there was an
intention to kill which resulted in the loss of life."156
c. The Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment
3.8.26 The Special Rapporteur on torture has
specifically discussed whether capital punishment can
be considered cruel, inhuman or degrading
punishment. In his report on the issue, the Special
Rapporteur noted the developments in jurisprudence by
international bodies, which had found that corporal
punishment often amounted to CIDT, because of its
impact on human dignity. While the Special Rapporteur

155 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
Transparency and the Imposition of the Death Penalty, E/CN.4/2006/53/Add.3 24
March 2006, available at: http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G06/120/57/PDF/G0612057.pdf?OpenElement (last
viewed on 3.08.2015).
156 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,

A/HRC/4/20, 29 January 2007, at para 53, available at: http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G07/105/00/PDF/G0710500.pdf?OpenElement (last
viewed on 3.08.2015).

50
did not go so far as to say that death penalty - probably
the most extreme form of corporal punishment - always
amounted to CIDT, he noted that the permissibility of
the death penalty "is increasingly being challenged by
obvious inconsistencies deriving from the distinction
between corporal and capital punishment and by the
universal trend towards the abolition of capital
punishment."157
3.8.27 The Special Rapporteur has also urged
certain states to impose moratoriums on death
sentences.158
(iii) Political commitments regarding the Death
Penalty globally
3.8.28 The trend towards abolition is also evident in
a series of political commitments made at the UN,
through resolutions at bodies such as the General
Assembly and the UN Human Rights Council.
a. General Assembly Resolutions
3.8.29 Several resolutions of the UN General
Assembly (UNGA) have called for a moratorium on the
use of the death penalty. In 2007, the UNGA called on
states to "progressively restrict the use of the death
penalty, reduce the number of offences for which it may
be imposed" and "establish a moratorium on executions
with a view to abolishing the death penalty."159 In 2008,
the GA reaffirmed this resolution,160 which was

157 Para 47, Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, A/HRC/10/44, 14 January 2009, at para 47,
available at: http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G09/103/12/PDF/G0910312.pdf?OpenElement (last
viewed on 3.08.2015).
158 See UNHCHR, UN experts urge Pakistan not to execute juveniles, 20 March 2015,

available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15729&La
ngID=E (last viewed on 3.08.2015); and US/Death penalty: UN experts call for federal
moratorium as Boston bomber gets death sentence 26 June 2015, available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16160&La
ngID=E (last viewed on 3.08.2015).
159 Resolution adopted by the General Assembly "Moratorium on the use of the death

penalty" A/RES/62/149, 26 February 2008.
160 Resolution adopted by the General Assembly "Moratorium on the use of the death

penalty" A/RES/63/168, 13 February 2009.

51
reinforced in subsequent resolutions in 2010,161
2012,162 and 2014.163 Many of these resolutions noted
that, "a moratorium on the use of the death penalty
contributes to respect for human dignity and to the
enhancement and progressive development of human
rights."
3.8.30 These resolutions have been gaining
increasing support from countries over time: 117 states
voted in favour of the most recent resolution in 2014, as
compared to 104 in 2007. India has not voted in favour
of these resolutions
b. UN Human Rights Council
3.8.31 The UN Human Rights Council recently
began a new enquiry on the death penalty, using the
human rights of children of parents sentenced to the
death penalty or executed as a starting point. In a 2013
resolution, the Human Rights Council acknowledged
"the negative impact of a parent's death sentence and his
or her execution on his or her children," urged "States to
provide those children with the protection and assistance
they may require," and mandated a study on this
specific issue.164 It also called on states "to provide those
children or, where appropriate, giving due consideration
to the best interests of the child, another member of the
family, with access to their parents and to all relevant
information about the situation of their parents."165 A
2014 Human Rights Council resolution noted that
"States with different legal systems, traditions, cultures
and religious backgrounds have abolished the death
penalty or are applying a moratorium on its use" and
deplored the fact that "the use of the death penalty leads
to violations of the human rights of those facing the death

161 Resolution adopted by the General Assembly "Moratorium on the use of the death
penalty" A/RES/65/206, 28 March 2011.
162 Resolution adopted by the General Assembly "Moratorium on the use of the death

penalty" A/RES/67/176, 20 March 2013.
163 Resolution adopted by the General Assembly "Moratorium on the use of the death

penalty" A/RES/69/186, 4 February 2015.
164 Human Rights Council, Panel on the human rights of children of parents sentenced

to the death penalty or executed, 15 March 2013, A/HRC/22/L.18.
165 Human Rights Council, Panel on the human rights of children of parents sentenced

to the death penalty or executed, 15 March 2013, A/HRC/22/L.18.

52
penalty and of other affected persons." The Human
Rights Council urged states to ratify the Second
Optional Protocol to the International Covenant on Civil
and Political Rights.166
(iv) Death penalty and the law of extradition
3.8.32 The law of extradition has been another tool
for countries pushing for the abolition of the death
penalty.167 Several abolitionist countries either require
assurances that retentionist-extraditing countries not
impose the death penalty, or have included such a
clause in bilateral extradition treaties.168 Abolitionist
countries are often bound to ensure this. For example,
Article 19(2) of the Charter of Fundamental Rights of the
European Union states:
No one may be removed, expelled or extradited to a
State where there is a serious risk that he or she
would be subjected to the death penalty, torture or
other inhuman or degrading treatment or
punishment.
3.8.33 Several courts have made seminal
pronouncements on the issue. For example, in the case
of Soering v. UK, 169 the European Court of Human
Rights held that the extradition of a person from the UK
to Virginia, a state in USA which imposed the death
penalty, would violate the European Convention of
Human Rights because:
The very long period of time spent on death row in
such extreme conditions, with the ever present and
mounting anguish of awaiting execution of the
death penalty, and to the personal circumstances of
166 Human Rights Council, Question of the Death Penalty, 25 June 2014,
A/HRC/26/L.8/Rev.1.
167 For example, abolitionist countries put pressure on those who retain the death

penalty by refusing extradition requests for persons wanted for offences carrying the
penalty. See ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE
PERSPECTIVE, at page 35, (5th ed. 2015).
168 For example, China has signed extradition treaties with Spain, France and Australia,

saying it will not impose the death penalty on individuals extradited from these
countries. See ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE
PERSPECTIVE, at page 38, (5th ed. 2015).
169 Application no. 14038/88, available at: http://hudoc.echr.coe.int/eng?i=001-57619

(last viewed on 20.08.2015)

53
the applicant, especially his age and mental state
at the time of the offence, the applicant's extradition
to the [US] would expose him to a real risk of
treatment going beyond the threshold set by Article
3 [Prohibition of Torture].
3.8.34 In the case of US v. Burns,170 the Supreme
Court of Canada held that in cases of extradition to a
retentionist country, assurances "that the death penalty
would not be imposed, or, if imposed, would not be
carried out" were essential in all but "exceptional" cases.
Similarly, in the case of Mohamed and Another v.
President of the Republic of South Africa,171 the South
African constitutional court held that "a 'deportation' or
'extradition' of Mohamed without first securing an
assurance that he would not be sentenced to death or, if
so sentenced, would not be executed would be
unconstitutional," adding that such an extradition
violated his "right to life, his right to have his human
dignity respected and protected and his right not to be
subjected to cruel, inhuman or degrading punishment."
3.8.35 Similar jurisprudence can also be found in
international law. In Judge v. Canada,172 the UN Human
Rights Committee, dealing with a man deported from
Canada to the US, held that "Canada, as a State party
which has abolished the death penalty, irrespective of
whether it has not yet ratified the Second Optional
Protocol to the [ICCPR], violated the author's right to life
under article 6, paragraph 1, by deporting him to the [US],
where he is under sentence of death, without ensuring
that the death penalty would not be carried out."173
3.8.36 India's Extradition Act, 1962, reflects this
principle in Section 34C: "Notwithstanding anything
contained in any other law for the time being in force,
where a fugitive criminal, who has committed an
extradition offence punishable with death in India, is

170 US v. Burns, [2001] 1 SCR 283.
171 2001 (3) SA 893 (CC).
172 Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc.
CCPR/C/78/D/829/1998 (2003)
173 Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc.
CCPR/C/78/D/829/1998 (2003), at para 10.6.

54
surrendered or returned by a foreign State on the request
of the Central Government and the laws of that foreign
State do not provide for a death penalty for such an
offence, such fugitive criminal shall be liable for
punishment of imprisonment for life only for that offence."
B. International Trends on the Death Penalty
3.9.1 The status and use of the death penalty today
suggests an unmistakable trend towards abolition.
When the UN was formed in 1945, only seven countries
in the world had abolished the death penalty.174 In
contrast, as of 31 December 2014, 140 countries in the
world had abolished the death penalty in law or
practice.175
3.9.2 The UN Secretary General publishes a
periodic report on the status of the death penalty
globally; the latest of these reports surveyed the global
situation between 2009 and 2013.176 In this period, the
number of fully abolitionist states increased by six, and
almost all retentionist countries reported reductions in
the number of executions and the number of crimes
subject to the death penalty. Amongst retentionist
countries, only 32 carried out judicial executions. This
report confirmed "the continuation of a very marked
trend towards abolition and restriction of the use of
capital punishment in most countries".177
3.9.3 The trend is also evident from the signatories
to the ICCPR's Second Optional Protocol, aiming at

174 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, A/HRC/10/44, 14 January 2009, at para 31, available at:
http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G09/103/12/PDF/G0910312.pdf?OpenElement (last
viewed on 5.08.2015).
175See Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT

50/001/2015.
176 Capital punishment and implementation of the safeguards guaranteeing protection

of the rights of those facing the death penalty, Report of the Secretary-General,
E/2015/49, 13 April 2015, available at
http://www.ohchr.org/Documents/Issues/DeathPenalty/E-2015-49.pdf (last viewed on
5.08.2015).
177 Capital punishment and implementation of the safeguards guaranteeing protection

of the rights of those facing the death penalty, Report of the Secretary-General,
E/2015/49, 13 April 2015, at para 26, available at
http://www.ohchr.org/Documents/Issues/DeathPenalty/E-2015-49.pdf (last viewed on
5.08.2015).

55
abolishing the death penalty, to which 81 states have
signed or acceded.
(i) Regional Trends regarding the Death
Penalty

a. The Americas
3.9.4 The American Convention on Human Rights
1969 significantly restricts the application of the death
penalty. Article 4 of this convention states that it can
only be imposed for serious crimes following a fair trial,
it cannot be inflicted for political offences or related
common crimes, it cannot be re-established in states
that have abolished it, and it cannot be imposed on
persons under the age of 18, over 70 or pregnant
women.
3.9.5 The Americas also have a specific convention
abolishing the death penalty. Under Article 1 of the
Protocol to the American Convention on Human Rights
to Abolish the Death Penalty (ratified by 13 countries),
"The States Parties to this Protocol shall not apply the
death penalty in their territory to any person subject to
their jurisdiction."
3.9.6 Despite some still keeping it in law, most
countries in the Americas have abolished the death
penalty in law or practice.
3.9.7 For example, like many of its South American
neighbours,178 Brazil abolished the death penalty for
ordinary crimes many decades ago, in 1882. The
abolition only applies to the death penalty for ordinary
crimes, and the death penalty for crimes in
extraordinary times of war still remains. The Brazilian
Constitution provides that there shall be no punishment
by death, except in the case of war (Article 5.XLVII).179
The same Article also provides that there shall be no life

178 These include Argentina, Chile, Colombia, Costa Rica, Ecuador, El Salvador,
Nicaragua, Paraguay, Venezuela, and Uruguay.
179 An English version of the Brazilian Constitution, as amended in 2010, is available

at:
http://www.stf.jus.br/repositorio/cms/portalstfinternacional/portalstfsobrecorte_en_us/
anexo/constituicao_ingles_3ed2010.pdf (last viewed on 10.08.2015).

56
imprisonment, making Brazil one of the few countries in
the world where both capital punishment and life
imprisonment do not exist. In the twentieth century, in
the face of political instability and military rule, Brazil
reintroduced the death penalty twice: in the years 1939-
45 (for politically motivated crimes of violence) and
1969-79 (for political crimes against national security),
but no death penalties were imposed on any person
during these years.180
3.9.8 The United States is a notable exception in
the Americas in terms of its approach to the death
penalty. In 2014, the United States was the only country
in its region to carry out executions. Even within the US,
for a period of time following the case of Furman v.
Georgia,181 there was a de facto moratorium on the
death penalty for about four years, between 1972 and
1976. While the death penalty has since been
reinstated, court decisions have narrowed down its
scope and introduced safe guards. For example, in
Roper v. Simmons,182 the Supreme Court held it was
unconstitutional to impose the death penalty for crimes
committed when the individual was below 18 years of
age. Further, in Atkins v. Virginia, 183 the Supreme Court
held that executing persons with intellectual disabilities
amounted to cruel and unusual punishment, and was
thus unconstitutional. An increasing number of states
in the US have been officially or un-officially imposing
moratoriums. Nineteen states in the US have abolished
it, the most recent among them have been Connecticut
in 2012, Maryland in 2013, and Nebraska in 2015.184 In
2014, 35 people were executed in the US, which was the
lowest number since 1995.

180 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at
page 70-71, (5th ed. 2015).
181 Furman v Georgia, 408 U.S 238.
182 Roper v. Simmons, 543 U.S. 551 (2005).
183 Atkins v. Virginia, 536 U.S. 304 (2002).
184 Based on data from the Death Penalty Information Center, available at:

http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last viewed on
20.08.2015).

57
b. Europe
3.9.9 All European countries, with the exception of
Belarus, have either formally abolished the death
penalty or maintain moratoriums.185
3.9.10 The 1950 European Convention for the
Protection of Human Rights and Fundamental
Freedoms ('the European Convention') originally stated,
"No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by
law."186 In 1983, Protocol No. 6 to the European
Convention concerning the abolition of the death
penalty said, "The death penalty shall be abolished. No-
one shall be condemned to such penalty or executed",
except "in respect of acts committed in time of war or of
imminent threat of war."187 Finally, in 2002, Protocol No.
13 to the European Convention abolished the death
penalty in all circumstances. 44 countries have acceded
to this protocol, including all member states of the
European Union.
3.9.11 The European Court of Human Rights
('ECHR') has evolved rich jurisprudence for countries
that have not yet ratified the two optional protocols. On
many occasions, the court has held that extradition to
a country that had the death penalty could violate the
right to life and prohibition against torture.188 In 2010,
the ECHR noted the high number of signatories of the
European Convention who had abolished the death
penalty. It said "These figures, together with consistent
State practice in observing the moratorium on capital

185 Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015,
at page 41.
186 Article 2(1), Convention for the Protection of Human Rights and Fundamental

Freedoms, available at: http://conventions.coe.int/treaty/en/Treaties/Html/005.htm (last
viewed on 20.08.2015).
187 Articles 1 and 2, Protocol No. 6 to the Convention for the Protection of Human Rights

and Fundamental Freedoms concerning the abolition of the death penalty, available at:
http://conventions.coe.int/Treaty/EN/Treaties/Html/114.htm (last viewed on
20.08.2015).
188 Bader and Kanbor v. Sweden, Application No. 13284/04; Jabari v. Turkey,

Application No. 40035/98.

58
punishment, are strongly indicative that Article 2 has
been amended so as to prohibit the death penalty in all
circumstances." It held that "the words 'inhuman or
degrading treatment or punishment' in Article 3 could
include the death penalty."189
3.9.12 Like the rest of Europe, France abolished the
death penalty despite public opinion to the contrary.
The death penalty in France was abolished on 9 October
1981, after a vote in the National Assembly decided in
favour of abolition.190 It marked the end of two centuries
of debate in the National Assembly on the issue, the first
motion having been presented as far back as in 1791.191
The abolition was incorporated into the French
Constitution in 2007, Article 66-1 of which reads that
"no one shall be sentenced to death". 192 Public opinion
supported the death penalty for many years after it was
abolished (a 2006 poll showed that 52% of the
population were against it).193 Robert Badinter, the
minister for Justice in France in 1981, who led the
legislative amendment, has suggested that "it usually
takes about 10 to 15 years following abolition for the
public to stop thinking of it as useful and to realise that it
makes no difference to the level of homicide", which
prediction has found support in many countries.194
3.9.13 The history of capital punishment in the
United Kingdom is also relevant to the Indian context.
The abolitionist-leaning Labour government that was
elected in post-war Britain considered the issue of
capital punishment at least six times before setting it

189 Al-Saadoon and Mufdhi v the United Kingdom, 61498/08 [2010] ECHR 282, at para
120.
190 France and Death Penalty, Abolition in France, available at
http://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/death-
penalty/france-and-death-penalty/ (last viewed on 20.08.2015).
191 Law of 9th October 1981: Abolition of the Death Penalty in France, available at

http://www.france.fr/en/institutions-and-values/law-9th-october-1981-abolition-death-
penalty-france.html (last viewed on 20.08.2015).
192 France and Death Penalty, Abolition in France, available at
http://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/death-
penalty/france-and-death-penalty/ (last viewed on 20.08.2015).
193 EVAN J. MANDERY, CAPITAL PUNISHMENT: A BALANCED EXAMINATION, at page 640 (1 st

ed. 2005).
194 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 464, (5th ed. 2015).

59
aside when tabling its Criminal Justice Bill in 1947,
deciding that abolishing the death penalty was not its
key priority; and by the 1950s, however, a series of
poorly handled cases and executions had led to the
creation of a strong public movement in favour of
abolition.195 The last execution in the United Kingdom
took place in 1964.196 In 1965, the House of Commons
in Great Britain voted to impose a moratorium on and
suspend the death penalty for murder for a period of 5
years by law.197
3.9.14 The death penalty for murder was formally
abolished in 1969, when the UK Parliament decided that
the 1965 Act should not expire,198 despite recent
opinion polls showing that about 80% of the population
was in favour of retaining the penalty.199 (Northern
Ireland passed a similar law in 1973.200) After the death
penalty for murder was abolished, the House of
Commons held a vote during each parliament (until
1997) to restore the penalty, but the motion was never
passed.201 The death penalty was finally removed for all
crimes in the UK only in 1999, further to the UK's
ratifications of and obligations under the European
Convention on Human Rights and the Second Optional
Protocol to the ICCPR.202
3.9.15 Despite the penalty no longer being a part of
UK law, the UK Privy Council has discussed the death
penalty in various decisions pertaining to cases in the

195 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at
page 51-56, (5th ed. 2015).
196 British Military & Criminal History: 1900 to 1999, Last executions in the UK, available

at http://www.stephen-stratford.co.uk/last_ones.htm (last viewed on 20.08.2015). .
197 See section 4 of the Murder (Abolition of Death Penalty) Act 1965, as originally

enacted, available at
http://www.legislation.gov.uk/ukpga/1965/71/pdfs/ukpga_19650071_en.pdf (last
viewed on 20.08.2015). .
198 Murder (Abolition of Death Penalty) Act 1965, as amended, available at

http://www.legislation.gov.uk/ukpga/1965/71 (last viewed on 20.08.2015). .
199 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 55, (5th ed. 2015).
200 Section 1, Northern Ireland (Emergency Provisions) Act 1973, available at

http://www.legislation.gov.uk/ukpga/1973/53/section/1 (last viewed on 20.08.2015). .
201 Charles Hanson, The death penalty issue, TIME, 1 September, 2011, available at:

http://insidetime.org/the-death-penalty-issue/ (last viewed on 20.08.2015). .
202 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 56, (5th ed. 2015)

60
Caribbean countries, where the death penalty remains
standing. The most notable of these was the 1993 case
of Pratt & Morgan v. The Attorney-General for Jamaica.203
In this case, the UK Privy Council held that that it was
unconstitutional in Jamaica to execute a prisoner who
had been on death row for 14 years. According to the
Privy Council, the Jamaican Constitution prohibits
"inhuman or degrading punishment", as a result of
which excessive delays cannot occur between
sentencing and execution of the punishment.
Specifically, it held that a delay of more than five years
between sentencing and execution was prima facie
evidence of inhuman or degrading punishment. In cases
of such excessive delay, it said that the death sentence
should be commuted to life imprisonment.
3.9.16 The Pratt & Morgan case had a "ripple
effect" 204 on similar cases from other Caribbean
countries, where the sentence for convicts on death row
was commuted to life imprisonment. This has led to a
separate and long-enduring debate about the appellate
powers of the Privy Council on countries other than the
UK.205
c. Africa
3.9.17 As of October 2014, 17 African countries had
formally abolished the death penalty, and 25 others had
not conducted an execution in over ten years.206
Countries continuing to impose the death penalty
include Egypt, Equatorial Guinea, Sudan, and Somalia.
Several African countries (e.g., Angola, Namibia) have
abolished the death penalty through the Constitution,

203 [1993] UKPC 1, Privy Council Appeal No. 10 of 1993, available at:
http://www.bailii.org/uk/cases/UKPC/1993/1.html (last viewed on 20.08.2015). .
204 Therese Mills (2005), Letter: Colonial power over death penalty, BBC, 19 January,

2005, available at: http://news.bbc.co.uk/2/hi/americas/4185745.stm (last viewed on
20.08.2015). .
205 See, for example, Owen Bowcott and Maya Wolfe-Robinson, British court to rule on

death sentences for two Trinidad murderers, The Guardian, 4 February, 2014, available
at http://www.theguardian.com/law/2015/feb/04/british-court-to-rule-on-death-
sentences-for-two-trinidad-murderers (last viewed on 20.08.2015). .
206 Statement by the Chairperson of the Working Group on Death penalty of the African

Commission on Human and Peoples' Rights on World Day against the Death Penalty,
available at: http://www.achpr.org/press/2014/10/d227/ (last viewed on 20.08.2015). .

61
while in others, notably South Africa, the courts have
taken the lead.
3.9.18 Article 5(3) of the African Charter on the
Rights and Welfare of the Child states, "Death sentence
shall not be pronounced for crimes committed by
children". In 2008, in its 'Resolution calling on State
Parties to observe the moratorium on the death penalty',
the African Commission on Human and Peoples' Rights
urged "State Parties that still retain the death penalty to
observe a moratorium on the execution of death
sentences with a view to abolishing the death
penalty."207 The 2014 Declaration of the Continental
Conference on the Abolition of the Death Penalty in
Africa recognized the trend towards abolition,208 and
asked countries to support the Additional Protocol to
the African Charter on Human and Peoples' Rights on
the Abolition of the Death Penalty in Africa.
3.9.19 For example, Kenya retains the death
penalty for multiple offences, including murder, armed
robbery and treason. The last known execution in
Kenya, however, took place in 1987, and the country is
regarded as abolitionist de facto. In the case of Mutiso v.
Republic (2010), the Court of Appeal at Mombasa struck
down the mandatory death penalty for murder, holding
that the penalty was in violation of the right to life, and
amounts to inhuman treatment; and that keeping a
person on death row for more than three years would be
unconstitutional. It also suggested that its reasoning
would apply to other offences having a mandatory death
sentence.209 However, in the case of Joseph Njuguna
Mwaura v Republic (2013), the Court of Appeal at
Nairobi upheld the death penalty for armed robbery. It

207 Resolution calling on State Parties to observe the moratorium on the death penalty,
ACHPR/Res.136(XXXXIIII).08, available at
http://old.achpr.org/english/resolutions/resolution136_en.htm (last viewed on
20.08.2015). .
208 Para 4, for example, states: "Deeply appreciates the growing number of African

States that have abolished the Death Penalty"; Declaration of the Continental
Conference on the Abolition of the Death Penalty in Africa, available at
http://www.achpr.org/news/2014/07/d150 (last viewed on 20.08.2015).
209 See The Death Penalty Project, Kenya, available at:
http://www.deathpenaltyproject.org/where-we-operate/africa/kenya/ (last viewed on
20.08.2015).

62
said that the legislature had to decide whether the
mandatory death penalty should be retained or not. The
conflict between these two decisions is expected to be
resolved by the Supreme Court.210
3.9.20 In South Africa, the death penalty was
abolished through a decision of the Constitutional
Court, shortly after the end of the apartheid regime.211
In an early ruling in 1995, in State v. Makwanyane,212,
the South African Constitutional Court held that the
death penalty was unconstitutional. In doing so, the
Court said:
The rights to life and dignity are the most
important of all human rights, and the source
of all other personal rights in Chapter Three. By
committing ourselves to a society founded on
the recognition of human rights we are required
to value these two rights above all others. And
this must be demonstrated by the State in
everything that it does, including the way it
punishes criminals. This is not achieved by
objectifying murderers and putting them to
death to serve as an example to others in the
expectation that they might possibly be
deterred thereby.
And that:
Retribution cannot be accorded the same
weight under our Constitution as the rights to
life and dignity, which are the most important
of all the rights in Chapter Three. It has not
been shown that the death sentence would be
materially more effective to deter or prevent
murder than the alternative sentence of life
imprisonment would be. Taking these factors

210 See Death Penalty Worldwide, Kenya, available at:
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Kenya (last
viewed on 20.08.2015).
211 See Howard French, South Africa's Supreme Court Abolishes Death Penalty, The

New York Times, 7 June, 1995, available at:
http://www.nytimes.com/1995/06/07/world/south-africa-s-supreme-court-abolishes-
death-penalty.html (last viewed on 20.08.2015).
212 1995 (6) BCLR 665.

63
into account, as well as the elements of
arbitrariness and the possibility of error in
enforcing the death penalty, the clear and
convincing case that is required to justify the
death sentence as a penalty for murder, has
not been made out.
3.9.21 At the time of this decision, public opinion in
South Africa on the death penalty was very divided,
with a lot of support for retaining death penalty. Crime
was a huge problem, and during the apartheid regime,
there had been extensive use of the death penalty.213
The last execution was just four years before its
abolition. In 1997, the South African Parliament
reaffirmed the Court's decision through law.214
3.9.22 In Nigeria, the death penalty is mainly a
state issue, as the country has a federal system, where
criminal laws vary across its 36 states. Each state
specifies crimes and punishments within its territory,
and have laws based on both Shariah and common law
systems. A mandatory death penalty is prescribed for a
wide range of offences in various Nigerian states.215
3.9.23 In 2012, the High Court of Lagos State
declared that the mandatory death penalty was
unconstitutional in James Ajulu & Others v. Attorney
General of Lagos.216 The Court held that "the
prescription of mandatory death penalty for offences
such as armed robbery and murder contravenes the
right of the applicants to dignity of human person and
their right not to be subjected to inhuman or degrading
punishment under S.34 of the constitution of the Federal
Republic of Nigeria, 1999."217 As a result of this ruling,

213 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at
page 89 (5th ed. 2015).
214 Roger Hood and Carolyn Hoyle, Abolishing the Death Penalty Worldwide: The

Impact of a "New Dynamic", Crime and Justice, Vol. 38, No. 1 (2009) at page 1-63.
215 Country profile: Nigeria, as of 19 June 2014, available at:
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Nigeria (last
viewed on 20.08.2015).
216 Suit No. ID/76M/2008, October 2012.
217 Question of the death penalty, Annual report of the United Nations High

Commissioner for Human Rights and reports of the Office of the High Commissioner
and the Secretary-General, Human Rights Council, Twenty-fourth session, UN
General Assembly, A/HRC/24/18, 1 July 2013.

64
the mandatory imposition of the death penalty is now
prohibited in the state of Lagos, and the death penalty
is now the maximum, but not the only, penalty
possible. This holding is only enforceable in the state of
Lagos.
3.9.24 Four prisoners were executed in 2013 in
Nigeria, which had otherwise not carried out an
execution since 2006. 218 As of September 2013, the
number of death row inmates stood at 1,233, with
many prisoners having remained on death row for over
10 years (according to a report by a UN Special
Rapporteur, the average in 2006 was already 20
years).219
d. Asia and the Pacific
3.9.25 About 40% of the countries in the Asia-Pacific
are retentionists, and maintain and use the death
penalty. China, Iran, Iraq and Saudi Arabia remain
amongst the highest executors globally, and the past
few years have also seen Pakistan and Indonesia
breaking their de facto moratoriums to return to
executions.
3.9.26 A 2015 OHCHR publication analyzing trends
in the death penalty in Southeast Asia, found that "The
Global movement towards abolition of the death penalty
has also been reflected in South-East Asia".220 At the
time of the report, Brunei Darussalam, Indonesia, Laos,
Malaysia, Myanmar, Singapore, Thailand and Viet Nam
had not abolished the death penalty, while Cambodia,
Timor-Leste and the Philippines had done so.
3.9.27 Indonesia, for example, is a retentionist
country that uses the death penalty for several crimes,

218 Country profile: Nigeria, as of 19 June 2014, available at:
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Nigeria (last
viewed on 20.08.2015).
219 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 204 (5th ed. 2015).
220 Office of the High Commissioner for Human Rights Regional Office for South-East

Asia "Moving Away from the Death Penalty: Lessons in South-East Asia", at page 19,
available at:
http://bangkok.ohchr.org/files/Moving%20away%20from%20the%20Death%20Penalt
y-English%20for%20Website.pdf (last viewed on 20.08.2015).

65
including drug-related offences. Earlier in 2015,
Indonesia executed eight people by firing squad,
including foreign nationals, for drug-related offences.
Indonesian president Joko Widodo has defended the
death penalty, saying "We want to send a strong
message to drug smugglers that Indonesia is firm and
serious in tackling the drug problem, and one of the
consequences is execution if the court sentences them to
death"221 Indonesia had a brief unofficial moratorium on
executions between 2008 and 2012, but has since
resumed executions.222
3.9.28 China is one of the largest executing
countries in the world. There is very limited information
of even how many executions take place in China, as
they are all carried out in secret. However, estimates
suggest that 90% of the world's executions occur in
Asia, and most of them occur in China,223 and that
China executes more people than all other countries
combined.224 In 2010, 68 crimes were punishable by the
death penalty in China. A 2011 amendment reduced
this number to 55. Hong Kong and Macau, both Special
Administrative Regions of China, have abolished the
death penalty. Similarly, Japan also retains the death
penalty,225 and conducts executions in secret. Families
are usually notified after it has taken place.226
3.9.29 The Philippines was one of the first countries
in Asia to abolish capital punishment. Its 1987

221 Talk to Al Jazeera, Joko Widodo: "A strong message to drug smugglers", Al Jazeera,
7 Mar, 2015, available at
http://www.aljazeera.com/programmes/talktojazeera/2015/03/joko-widodo-strong-
message-drug-smugglers-150305131413414.html (last viewed on 20.08.2015).
222 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 104 (5th ed. 2015).
223 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 98 (5th ed. 2015).
224 Congressional-Executive Commission on China, Chinese Government Considers

Reducing Number of Crimes Punishable by Death, February 23, 2011, available at
http://www.cecc.gov/publications/commission-analysis/chinese-government-
considers-reducing-number-of-crimes-punishable (last viewed on 20.08.2015).
225 http://www.economist.com/blogs/banyan/2014/09/death-penalty-japan (last viewed

on 20.08.2015).
226 Amnesty International, Japan: Authorities Deceiving the Public by Resuming

Executions, 25 June, 2015, available at
https://www.amnesty.org/en/latest/news/2015/06/japan-authorities-deceiving-the-
public-by-resuming-executions/ (last viewed on 20.08.2015).

66
Constitution, promulgated after President Marcos was
overthrown,227 stated:
Article III, Section 19(1): Excessive fines shall
not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall
death penalty be imposed, unless, for
compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any
death penalty already imposed shall be
reduced to reclusion perpetua [emphasis
supplied].228
3.9.30 By 1994, the mood in some quarters of the
nation had changed, and Republic Act No. 7659, also
called 'An Act to Impose the Death Penalty on Certain
Heinous Crimes', was passed. The preamble of this law
said that "the Congress, in the justice, public order and
the rule of law, and the need to rationalize and harmonize
the penal sanctions for heinous crimes, finds compelling
reasons to impose the death penalty for said crimes."229
This act reintroduced the death penalty for a range of
offences including for murder, treason, and certain
forms of rape. Death sentences were imposed, and
executions were resumed.
3.9.31 The Philippines saw intense public debate on
the death penalty in this period. In 2000 President
Estrada announced a moratorium on executions, which
President Arroyo continued.230 In April 2006, President
Arroyo decided to commute all death sentences and
block executions.231 Later that year, a Bill abolishing the

227 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at
page 100 (5th ed. 2015).
228 The Constitution of the Republic of the Philippines, available at:
http://www.gov.ph/constitutions/1987-constitution/
229 A copy of the act is available here:
http://www.lawphil.net/statutes/repacts/ra1993/ra_7659_1993.html (last viewed on
20.08.2015).
230 See Amnesty International, Philippines abolish death penalty, 7 July, 2006, available

at:
http://www.amnesty.org.au/news/comments/2412/ (last viewed on 20.08.2015).
231 ROGER HOOD, CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE PERSPECTIVE, at

page 101 (5th ed. 2015).

67
death penalty completely was passed.232 In 2007, the
Philippines ratified the Second Optional Protocol to the
ICCPR.
3.9.32 Saudi Arabia also retains the death penalty,
using it against foreign nationals and persons convicted
for offences that do not meet the international law
threshold of "most serious crimes". Recently there has
been an increase in the rate and number of executions,
with over 102 persons being executed in 2015 alone.233
3.9.33 Since its formation in 1948, Israel has been
abolitionist for ordinary crimes. The death penalty has
only been imposed and implemented once, in 1962,
when Adolph Eichmann was executed. Currently, the
following crimes can carry a death sentence: genocide;
murder of persecuted persons committed during the
Nazi regime; acts of treason under the military law and
under the penal law committed in time of hostilities and
the illegal use and carrying of arms. Further, Israeli law
requires that the death penalty can only be imposed
with judicial consensus, not judicial majority. In 2015,
there were attempts to introduce a Bill that would make
it easier to impose the death penalty on terrorists, by
requiring only a majority and not consensus amongst
judges in such cases. The Bill was rejected in its first
reading.234
1. South Asia
3.9.34 In South Asia, India, Pakistan, and
Bangladesh retain the death penalty. In December
2014, Pakistan lifted its moratorium on executions, in
response to a terrorist attack on a school in Peshawar.
232 See Sarah Toms, Philippines stops death penalty, BBC News, 24 June, 2006,
available at http://news.bbc.co.uk/1/hi/world/asia-pacific/5112696.stm (last viewed on
20.08.2015).
233 BBC News: Middle East, Saudi Arabia executes 175 people in a year - Amnesty,

available at http://www.bbc.co.uk/news/world-middle-east-34050853 (last viewed on
20.08.2015); Adam Withnall, Saudi Arabia executes 'a person every two days' as rate
of beheadings soars under King Salman, The Independent, 28 August, 2015, available
at http://www.independent.co.uk/news/world/middle-east/saudi-arabia-executions-
amnesty-international-beheadings-death-sentences-rate-under-king-salman-
10470456.html (last viewed on 20.08.2015)
234 See The Times of Israel, "Knesset rejects bill on death penalty for terrorists", 15 July

2015,available at: http://www.timesofisrael.com/knesset-rejects-bill-on-death-penalty-
for-terrorists/ (last viewed on 20.08.2015).

68
Since then, around 200 people have been executed, and
around 8000 people on death row remain at risk of
execution.235
3.9.35 Maldives and Sri Lanka maintain the penalty
in law, but are abolitionist in practice. The last Sri
Lankan execution was in 1976; and in the Maldives in
the 1950s. Capital punishment was introduced in Sri
Lanka during colonial times. Sri Lanka still retains it in
law, and sentences people to death. Death row is a
controversial phenomenon in Sri Lanka. In 2014 alone,
Sri Lankan courts sentenced over 61 people to death,
including juveniles.236 Sri Lanka also retains the death
penalty for drug-related crimes, which do not meet the
threshold of "most serious crimes" in international law.
But Sri Lanka has not carried out an execution since
1976, and is considered abolitionist in practice. Death
sentences are converted to terms of imprisonment. It is
noteworthy that Sri Lanka's moratorium has remained
in place despite insurgency and civil war between the
1980s and late 2000s.
3.9.36 Bhutan and Nepal have abolished the death
penalty. Bhutan abolished it in 2004, and it is also
prohibited in its 2008 Constitution. The last execution
in Nepal was in 1979. Nepal officially abolished the
death penalty in 1990, with its government saying "the
punishment was considered inconsistent with its new
multi-party political system."237 Since then, Nepal has
seen a 10 year-long civil war, lasting from 1996 to 2006.
Both sides of the civil war committing a range of human
rights abuses, and accountability remains a central
concern in Nepal today.
3.9.37 This violence and conflict ended with the
signing of the 2006 Comprehensive Peace Accord
between the Government of Nepal and the Communist
Party of Nepal (Maoist). Despite the scale of the violence

235 See BBC News: Asia, Pakistan executes Shafqat Hussain despite appeals, BBC
News, 4 August, 2015, available at http://www.bbc.com/news/world-asia-33767835
(last viewed on 20.08.2015).
236 Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015
237 LA Times, "Nepal's New Leaders Abolish Death Penalty", 10 July 1990, available

at: http://articles.latimes.com/1990-07-30/news/mn-790_1_death-sentence

69
and atrocities, clause 7.2.1 of the Accord clearly said
that, "Both sides respect and protect the fundamental
right to life of any individual. No individual shall be
deprived of this fundamental right and no law that
provides capital punishment shall be enacted."238 Article
12 of Nepal's Interim Constitution, which came into
force after the Comprehensive Peace Accord was signed,
states:239
Every person shall have the right to live with
dignity, and no law shall be made which
provides for capital punishment.
3.9.38 The prohibition against capital punishment
has also been retained in Nepal's current draft
constitution, which is being debated in the Constituent
Assembly.
C. Conclusion
3.10.1 One hundred and forty countries today have
abolished the death penalty in law or practice. This
trend towards abolition is evident in the developments
in international law, which have limited the scope of the
death penalty by restricting the nature of crimes for
which it can be implemented, limiting the manner in
which it can be carried out, and introducing procedural
safe guards. Recent political commitments on the
international stage, such as growing support for the UN
General Assembly resolutions on a moratorium on
executions, reaffirm this trend.
3.10.2 This chapter demonstrates that there is no
evidence of a link between fighting insurgency, terror or
violent crime, and the need for the death penalty.
Several countries have abolished the death penalty, or
maintained moratoriums on executions, despite facing

238 Unofficial Translation of the Comprehensive Peace Agreement concluded between
the Government of Nepal and the Communist Party of Nepal (Maoist), 21 November
2006, available at:
http://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/ne
pal_cpa_20061121_en.pdf (last viewed on 20.08.2015).
239 See Interim Constitution of Nepal, 2007, available at
http://www.worldstatesmen.org/Nepal_Interim_Constitution2007.pdf (last viewed on
20.08.2015).

70
civil wars, threats of insurgency or terrorist attacks. For
example, Nepal officially abolished the death penalty in
1990 and did not re-introduce it even in the aftermath
of the civil war; Sri Lanka, despite a long civil war, has
maintained a moratorium on the penalty; and Israel has
only executed once since its formation. Most European
countries remain abolitionist despite facing terrorism
within their national boundaries, e.g., the UK, France,
and Spain. In fact, it is relevant to note that the UK
abolished the death penalty at a time when the Irish
Republican Army, a revolutionary military organisation,
was particularly active in the country. The same can be
seen for fighting crime. The Philippines faces a severe
problem of drug trafficking, but has abolished the death
penalty. South Africa abolished the death penalty at a
time when crime rates in the country were very high.
3.10.3 A country's decision to abolish or retain the
death penalty is not necessarily linked to its socio-
economic or development profile; rather, political will
and leadership are key. Several developing countries do
not use the death penalty. Nepal, Rwanda, Senegal,
Solomon Islands, Djibouti, Togo, Haiti, and Guinea-
Bissau are all examples of countries ranked under "Low
Human Development" in the UNDP Human Development
Index (that is, considered less developed than India),
which have abolished the death penalty.240
3.10.4 State practice regarding the death penalty
also demonstrates that the road to abolition is not
always a function of public opinion. Political leadership
has been key to this process. Many states have
abolished the death penalty at a time when public
opinion may not have necessarily supported this
position. Indeed, public opinion in many countries has
only gradually reversed over time, changing with
subsequent generations, suggesting that it takes time
for populations to stop thinking of the penalty as
"useful," or realise that it has no linkages with levels of
homicide. For example, in France, public opinion

240 See Human Development Index and its components, available at:
http://hdr.undp.org/en/content/table-1-human-development-index-and-its-
components) (last viewed on 20.08.2015).

71
continued to support the death penalty for several years
after it was abolished, and it was about two decades
after the abolition of the law that opinion began to
change. Similarly, in South Africa, a Constitutional
Court decision found the death penalty to be
unconstitutional at a time when the public supported it,
and the decision of the Court was supported by the
legislature. The passage of time has proven these to be
wise courses of action. These countries remain
abolitionist even today, and have not felt the need to
doubt or question their decisions. They have relied on
different methods to control crime and sanction
individuals. In the UK and France, the political parties
who abolished the death penalty in the face of contrary
public opinion were in fact re-elected.241
3.10.5 The situation today can be contrasted
with the global status of the death penalty in 1979 -
1980, at the time of the Supreme Court's decision in
Bachan Singh. The Court had noted that only 18 states
had abolished the death penalty for all offences, and 8
more had only retained it for "specific offences
committed in time of war." The Court cited Saudi Arabia,
the United States, Israel, China, Argentina, Belgium,
France, Japan, Greece, Turkey, Malaysia, Singapore
and the USSR (Russia) as examples.242 Several of these
countries are abolitionist in law or practice today,
including Belgium, France, Greece, and Turkey. Others
only retain it for exceptional crimes, such as Argentina
and Israel.
3.10.6 There is a clear trend towards abolition in
international law and state practice across the globe.
International legal norms have evolved to restrict the
lawful use of capital punishment in a very narrow
variety of cases, and a very limited manner. India
241 In their article, Hood and Hoyle refer to a study on death penalty and public opinion,
which found that each year of abolition "lowered the odds that an individual would
support the death penalty by 46 per cent", indicating that abolition led by strong political
leadership could itself lead to a change in public opinion. Hoyle and Hood, Deterrence
and Public Opinion, in Moving Away from the Death Penalty: Arguments, Trends and
Perspectives (United Nations, 2014), available at
http://www.ohchr.org/Lists/MeetingsNY/Attachments/52/Moving-Away-from-the-
Death-Penalty.pdf (last viewed on 20.08.2015).
242 Bachan Singh vs State of Punjab, (1982) 3 SCC 24 at para 128 and 129.

72
continues to sentence individuals to death and execute
them, and has also opposed all five General Assembly
resolutions on a moratorium. In doing so, India keeps
company with a minority of countries who retain the
death penalty, and an even smaller number who
actually carry out executions, a list that includes China,
Iran, Iraq and Saudi Arabia.

73
CHAPTER IV

PENOLOGICAL JUSTIFICATIONS FOR THE DEATH
PENALTY

A. Scope of Consideration

4.1.1 The Supreme Court of India in Shankar
Kisanrao Khade v. State of Maharashtra,243 ('Khade')
ruled that "[i]t is imperative...that courts lay down a
jurisprudential basis for awarding the death penalty and
when the alternative is unquestionably foreclosed."244 In
this context, the Court asked the Law Commission to
"resolve the issue by examining whether death penalty
is a deterrent punishment or is retributive justice or
serves an incapacitative goal."245 In this Chapter, the
Report examines whether there are any penological
purposes for imposing the death penalty. The report
analyses the theories of deterrence, incapacitation and
retribution. Proportionality and rehabilitation as
theories of punishment are also briefly examined, since
these theories have been used by the Supreme Court in
its death penalty adjudication.

4.1.2 At this juncture, it is incumbent on this
Commission to emphasize that the abolition of the
death penalty does not entail the release of the offender
into society without any punishment whatsoever. It
must also be noted that the alternative to the death
penalty is life imprisonment, and this is often missed in
debates surrounding the death penalty.246 What must
be shown to merit the retention of the death penalty, is
that the marginal benefits offered by the death penalty
i.e. benefits not offered by life imprisonment, are high
enough to merit the taking of a life.247 This principle was

243 (2013) 5 SCC 546.
244 Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, at para 148.
245 (2013) 5 SCC 546, at page 614.
246 See H.A. Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal

of Criminal Law, Criminology, and Police Science 539, 542 (1970); Richard Lempert,
Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital
Punishment, 79 Michigan Law Review 1177, 1192 (1981).
247 See H.A. Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal

of Criminal Law, Criminology, and Police Science 539, 542 (1970); Richard Lempert,

74
laid down by the Supreme Court in Santosh Kumar
Bariyar v. State of Maharashtra,248 (Bariyar) where the
Court stated:

During the sentencing process, the sentencing court
or the appellate court for that matter, has to reach
to a finding of a rational and objective connection
between capital punishment and the purpose for
which it is prescribed. In sentencing terms 'special
reasons' as envisaged under Section 354(3) Code of
Criminal Procedure have to satisfy the comparative
utility which capital sentence would serve over life
imprisonment in the particular case. The question
whether the punishment granted impairs the right
to life under Article 21 as little as possible.249

B. Approach of the 35th Report of Law
Commission

4.2.1 In recommending that the death penalty be
retained, the 35th Report of the Law Commission opined
that the following purposes were served by the death
penalty:

(a) Deterrence- The 35th Report stated that deterrence
is the most important object not only of capital
punishment, but of punishment in general.250
(b) Retribution- Retribution was also seen as an
important justification for capital punishment by
the 35th Report. It was stated that retribution
should not be understood as an "eye for an eye,"
but in its refined form as public denunciation of
crime.251
(c) Incapacitation- The 35th Report stated that there
are a category of individuals who are "cruel and
wicked," and are not capable of reform. Citing Sir
James Fitzjames Stephen, the Report said that

Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital
Punishment, 79 Michigan Law Review 1177, 1192 (1981).
248 (2009) 6 SCC 498.
249 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 145.
250 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
251 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,

at para 297.

75
"[t]o allow such persons to live would be like leaving
wolves alive in a civilized country."252 It further
stated that if there is a danger that such a person
might reoffend, it might be reasonable to terminate
his life.253

4.2.2 A major reason stated in the 35th Report for
the retention of capital punishment was the unique
condition of India, and that in light of circumstances of
society then prevalent, it would not be prudent to
abolish the death penalty.254

4.2.3 Each of the justifications stated by the 35th
Report are dealt with in detail below.

C. Deterrence

4.3.1 Deterrence aims to prevent individuals from
offending by using the fear or threat of punishment.255
The assumption behind deterrence theory is that all
persons are rational individuals, and will commit a
crime only if they perceive that the gain they will derive
from the criminal act will be greater than the pain they
will suffer from its penal consequences.256 The belief is
that the operation of deterrence is strengthened when
the punishment is made as severe as death itself; no
person in his/her right mind would commit an act
which may result in the loss of one's life, the instinct of
self-preservation being intrinsic, biological and
insurmountable under ordinary circumstances.257
Often quoted in this regard is a statement of Sir James
Fitzjames Stephen that:

252 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,
at para 300.
253 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,

at para 301.
254 Law Commission of India, 35th Report, 1967, (Summary of Main Conclusions and

Recommendations), available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed at 26.08.2015).
255 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 75 (4th ed. 2005); Raymond

Paternoster, How Much Do We Really Know About Criminal Deterrence, 100 Journal
of Criminal Law and Criminology 765, 766 (2010).
256 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 71 (4th ed. 2005).
257 Ernest Haag, The Ultimate Punishment- a Defense, 99 Harvard Law Review 1662,

1666 (1986).

76
Some men, probably, abstain from murder because
they fear that if they committed murder they would
be hanged. Hundreds of thousands abstain from it
because they regard it with horror. One great
reason why they regard it with horror is that
murderers are hanged.258

4.3.2 The 35th Report cited the following (amongst
other) reasons in favour of the proposition that the
death penalty serves a deterrent value:259

1. Every human being dreads death.260
2. The death penalty stands on a different footing
from imprisonment. The difference is one of
quality, and not merely of degree.
3. Experts consulted by the Commission, including
state governments, judges, Members of
Parliament, Members of State Legislatures, police
officers, and advocates were of the view that "the
deterrent object of capital punishment is achieved
in a fair measure in India."261
4. Whether other forms of punishment possess the
advantages of capital punishment is a matter of
doubt.
5. "Statistics of other countries are inconclusive on the
subject. If they are not regarded as proving the
deterrent effect, neither can they be regarded as
conclusively disproving it."262

258Ernest Haag, The Ultimate Punishment: A Defense, 99 Harvard Law Review 1662,
1666 (1986)
259Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,

at para 370.
260 Hood & Hoyle argue that although it is possible that some people refrained from

committing murder because of fear of execution, this is an insufficient basis to conclude
that existence of the death penalty deters people from committing murders. See: Roger
Hood & Carolyn Hoyle, Myth of Deterrence, in MOVING AWAY FROM THE DEATH PENALTY:
ARGUMENTS, TRENDS AND PERSPECTIVES 67 (United Nations Commission on Human
Rights, 2014).
261 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,

at para 370.
262 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India,

at para 370.

77
6. There is a "considerable body of opinion" to state
that death penalty acts as a deterrent.263

4.3.3 In Bachan Singh v. State of Punjab,264 the
Supreme Court observed that in most countries of the
world, including in India, a "large segment of the
population, including notable penologists, judges, jurists,
legislators, and other enlightened people" still believe
that the death penalty serves as a greater deterrent than
life imprisonment.265 The Court noted various cases
where it had recognized the deterrent value of the death
penalty.266

4.3.4 Post-Bachan Singh, the Supreme Court has
often used deterrence as a justification for imposing the
death penalty. For instance, while imposing the death
sentence in Mahesh v. State of Madhya Pradesh,267 the
Court noted that "[the common man] understands and
appreciates the language of deterrence more than the
reformative jargon."268 In Jashuba Bharatsinh Gohil v.
State of Gujarat,269 the Court held that "protection of
society and deterring the criminal is the avowed object of
law."270 There are however other cases where the Court
has held that deterrence is not the primary justification
for imposition of the death penalty,271 or doubted the
efficacy of deterrence itself.272

263 For this proposition, the Commission cites replies received to its questionnaire, as
well as a statement made by Sir Patrick Spens in the House of Commons, based on
his experience in India.
264 (1980) 2 SCC 684.
265 (1980) 2 SCC 684, 713.
266 The Court refers to Paras Ram v. State of Punjab, (1981) 2 SCC 508, Jagmohan v.

State, AIR 1973 SC 947, EdigaAnnamma v. State of Andhra Pradesh AIR 1974 SC
799, Shiv Mohan Singh v. State AIR 1977 SC 949, Charles Sobhraj v. Superintendent,
Central Jail, Tihar, New Delhi, 1978 AIR 1514.
267 (1987) 3 SCC 80.
268 Mahesh v. State of MP, (1987) 3 SCC 80, 82. See also: Sevaka Perumal v. State

of Tamil Nadu, (1991) 3 SCC 471, 480, Ankush Maruti Shinde v. State of Maharashtra,
(2009) 6 SCC 667, 675, Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC
561, 574.
269 (1994) 4 SCC 353.
270Jashuba Bharatsinh Gohil v. State of Gujarat, (1994) 4 SCC 353, 360. See also:

Paniben v. State of Gujarat, (1992) 2 SCC 474, 483, B. Kumar v. Inspector of Police,
(2015) 2 SCC 346, 354, Gyasuddin Khan v. State of Bihar, (2003) 12 SCC 516, 525,
Paras Ram v. State of Punjab, (1981) 2 SCC 508, 508.
271 See: Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, 343.
272Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148, 151.

78
(i) Empirical Evidence on Deterrent Value of the
Death Penalty

4.3.5 One of the methods by which the efficacy of
the deterrence rationale is tested, is by empirically
establishing that the death penalty has a deterrent
effect. After many years of research and debate among
statisticians, practitioners, and theorists, a worldwide
consensus has now emerged that there is no evidence
to suggest that the death penalty has a deterrent effect
over and above its alternative - life imprisonment.

4.3.6 The debate on the efficacy of deterrence
gained momentum with a study by Isaac Ehrlich, which
was published in 1975, in which Ehrlich found a
"unique deterrent effect" of executions on murders.273
The study claimed that each execution saved up to
"eight innocent lives".274 The Supreme Court of India in
Bachan Singh cited Ehrlich's research and gave it
extensive value.275 However, many flaws were
subsequently discovered in Ehrlich's methodology and
assumptions. For instance, one powerful critique of
Ehrlich's study revealed that if data from just six years,
namely 1963-69 was removed from the larger data set
comprising 43 years (1920-1963), the evidence of
deterrence disappeared completely.276

4.3.7 To review Ehrlich's study and other studies
which linked deterrence with the death penalty, a Panel
was set up by the National Academy of Sciences in the
United States, chaired by (Nobel Laureate) Lawrence
Klien. In its Report, submitted in 1978, the Panel
concluded that "the available studies provide no useful
evidence on the deterrent effect of capital punishment"
and "research on the deterrent effects of capital

273 Isaac Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and
Death, 65 AM. ECON. REV. 397 (1975).
274 Isaac Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and

Death, 65 AM. ECON. REV. 397 (1975).
275Bachan Singh v State of Punjab (1980) 2 SCC 684, 717-718.
276 Peter Passell& John Taylor, The Deterrent Effect of Capital Punishment: Another

View, 67 AM. ECON. REV. 445 (1977).

79
sanctions is not likely to provide results that will or
should have much influence on policy makers."277

4.3.8 Donohue and Wolfers provided a compelling
critique of studies that claim that capital punishment
has a deterrent effect.278 They reported that the
homicide rates in the US and Canada (culturally and
socio-economically similar areas), had moved in "virtual
lockstep...while approaches to the death penalty [had]
diverged sharply since 1950." Similarly, the movement
in homicide rates of all the death penalty and non-death
penalty states within the United States (between 1960
and 2000) was also found to be virtually the same.279
Thus, they concluded that it is very difficult to find
evidence of deterrence in pure homicide comparisons
over time and place.

4.3.9 Donohue and Wolfers also found that "the
existing evidence for deterrence is surprisingly fragile,
and even small changes in specifications yield
dramatically different results...Our estimates suggest
not just "reasonable doubt" about whether there is
any deterrent effect of the death penalty, but
profound uncertainty...[W]e are pessimistic that
existing data can resolve this uncertainty."280 (Emphasis
supplied)

4.3.10 In a similar, extensive review of existing
literature, the National Research Council in the United

277Lawrence R. Klein, Brian Forst & Victor Filatov, The Deterrent Effect of Capital
Punishment: An Assessment of the Estimates, in Alfred Blumstein, Jacqueline Cohen
and Daniel Nagin (eds.), DETERRENCE AND INCAPACITATION: ESTIMATING THE EFFECTS OF
CRIMINAL SANCTIONS ON CRIME RATES, National Academy of the Sciences, Washington
D.C. (1978). See also: l S. NAGIN AND JOHN V. PEPPER (EDS.),DETERRENCE AND THE
DEATH PENALTY, COMMITTEE ON DETERRENCE AND THE DEATH PENALTY (COMMITTEE ON
LAW AND JUSTICE), NATIONAL RESEARCH COUNCIL (2012).
278 John Donohue and Justin Wolfers, USES AND ABUSES OF EMPIRICAL EVIDENCE IN THE

DEATH PENALTY DEBATE,58 STAN. L. REV. 791 (2005); See also Daniel S. Nagin and
John V. Pepper (eds.),DETERRENCE AND THE DEATH PENALTY, Committee on Deterrence
and the Death Penalty (Committee on Law and Justice), National Research Council
(2012).
279John Donohue and Justin Wolfers, USES AND ABUSES OF EMPIRICAL EVIDENCE IN THE

DEATH PENALTY DEBATE,58 STAN. L. REV. 791; See also Daniel S. Nagin and John V.
Pepper (eds.),DETERRENCE AND THE DEATH PENALTY, Committee on Deterrence and the
Death Penalty (Committee on Law and Justice), National Research Council (2012).
280 John Donohue and Justin Wolfers, USES AND ABUSES OF EMPIRICAL EVIDENCE IN THE

DEATH PENALTY DEBATE,58 STAN. L. REV. 791, 794.

80
States concluded in a Report published in 2012 that
"research to date on the effect of capital punishment on
homicide is not informative about whether capital
punishment decreases, increases, or has no effect on
homicide rates. Therefore, the committee recommends
that these studies not be used to inform
deliberations requiring judgments about the effect
of the death penalty on homicide."281 (Emphasis
supplied)

4.3.11 The debate has thus come a full circle, with
the conclusions reached in the first decade of the 21st
century being the same as the those reached by the UK
Royal Commission on the Death Penalty in 1953, when
it said:

The general conclusion which we have
reached is that there is no clear evidence in
any of the figures we have examined that the
abolition of capital punishment has led to an
increase in the homicide rate, or that its
reintroduction has led to a fall.282 (Emphasis
supplied)

4.3.12 This view is also supported by the United
Nations ('UN'), which has consistently held that there is
no conclusive evidence on deterrence and the death
penalty, in Resolutions on the Moratorium on the Use
of the Death Penalty of 2008, 2010, 2013 and 2015.283
Further, the UN, in Reports published as recently as
2014 has noted that no evidence of deterrence can be
presumed to exist.284 The UN has also noted that
deterrence is nothing more than a "myth."285

281 NAT'L ACADEMY OF SCIENCES, DETERRENCE AND DEATH PENALTY 102 (Daniel S.
Nagin, 2012).
282 See Report of UK Royal Commission on the Death Penalty, 1953.
283 See Resolutions on the Moratorium on the Use of the Death Penalty: Resolution

62/149 (2008), Resolution 65/206 (2010) and Resolution 67/176 (2013) and Resolution
/69/186, (2015). It is important to note that India is not a signatory to these Resolutions.
284 Moving away from the Death Penalty: Lessons from South-East Asia, United

Nations Human Rights Commission10 (2014).
285 Carolyn Hoyle and Roger Hood, The Myth of Deterrence in MOVING AWAY FROM THE

DEATH PENALTY: ARGUMENTS, TRENDS AND PERSPECTIVES, United Nations Human
Rights Office of the High Commissioner, 74-83 (2014).

81
4.3.13 Further, the Constitutional Court of South
Africa ruling on the deterrence argument, The State v.
Makwanyane and Machunu,286 ruled:

It was accepted by the Attorney General that
[deterrence] is a much disputed issue in the
literature on the death sentence. He contended that
it is common sense that the most feared penalty will
provide the greatest deterrent, but accepted that
there is no proof that the death sentence is in fact a
greater deterrent than life imprisonment for a long
period..."A punishment as extreme and as
irrevocable as death cannot be predicated upon
speculation as to what the deterrent effect might
be.287

4.3.14 The Supreme Court of India in Bachan Singh,
taking note of the statistical studies on deterrence and
the death penalty noted: "We may add that whether or
not death penalty in actual practice acts as a deterrent,
cannot be statistically proved, either way, because
statistics as to how many potential murderers were
deterred from committing murders, but for the existence
of capital punishment for murder, are difficult, if not
altogether impossible, to collect. Such statistics of
deterred potential murderers are difficult to unravel as
they remain hidden in the innermost recesses of their
mind."288 Thus, it is important to emphasize, as stated
by the Supreme Court in Bachan Singh, that sentencing
policy should not be influenced and decided solely on
the basis of empirical analysis, one way or the other, of
the perceived deterrent effect of the death penalty.

(ii) Assumptions of Deterrence

4.3.15 For deterrence to work, it is necessary that
certain pre-requisites be met. If any one of these pre-
requisites do not exist, or if any of them are weakened,

286 Case No. CCT/3/94, Constitutional Court of The Republic Of South Africa.
287 The State v Makwanyane and Machunu, Case No. CCT/3/94, Constitutional Court
of The Republic Of South Africa.
288 Bachan Singh v. State of Punjab. (1980) 2 SCC 684, at para 101.

82
then the overall idea of deterrence fails. These pre-
requisites can be broadly articulated as follows:289

(a) That potential offenders know which offences
merit the death penalty
(b) That potential offenders conduct an analysis of the
costs and benefits before or while committing the
crime and weigh the death penalty as a serious
and important cost
(c) That potential offenders view it a probable
consequence that they will be subjected to the
death penalty if they commit the crime
(d) That potential offenders are risk-averse and not
risk-seeking
(e) That potential offenders give more weight to the
costs than the benefits, and choose to not perform
the act.

4.3.16 If all the above mentioned prerequisites are
met, then it is assumed that the potential offender will
be deterred from offending.

4.3.17 However, experts noticed two major fallacies
in these assumptions - Knowledge Fallacies and
Rationality Fallacies.290

a. Knowledge Fallacies

4.3.18 Knowledge fallacies refer to the idea
that offenders do not know the penalties applicable to
the crimes that they plan on committing. Hence, they
do not feel deterred by a severe penalty. However,
deterrence assumes that every individual knows the
legal penalties applicable to him/her in case s/he
commits a crime. There is ample evidence to show that
both the general public and potential offenders have
little or no knowledge of the penalties which they can be
subjected to.291 The idea of the knowledge fallacy is

289 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of
Legal Studies 173, 175 (2004).
290 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of

Legal Studies 173 (2004).
291 David Anderson, The Deterrence Hypothesis and Picking Pockets at the Pick-

Pockets Hanging, Amer. Law & Econ. Rev. 295 (2002).

83
aptly summed up by King, when he says: As put aptly
by King, "About-to-be lawbreakers don't look up
penalties in the law books; they plan, if at all on how to
avoid being caught."292

b. Rationality Fallacies

4.3.19 A major assumption of deterrence
theory is that potential offenders are rational decision
makers. However, a large number of crimes are
committed in a fit of rage or anger, or when the offender
is clinically depressed, or are motivated out of strong
emotions such as revenge or paranoia.293 In
circumstances such as these, deterrence is unlikely to
operate since the actor is not likely to give due weight,
or even a cursory consideration to what penalties might
be imposed on him/her subsequently; the focus being
on the emotion driving his/her state of mind.294

4.3.20 The discussion above does not imply
that deterrence is a myth and the criminal justice
system could do away with all punishments entirely,
without impacting deterrence. Indeed, as has been
expressed by scholars, the fact that there exists a
criminal justice system which punishes criminal
conduct is by itself a deterrent.295 Consequently, it is
not necessary that punishments by themselves be
harsh or excessive. Theorists argue that the assumption
in criminal law that the harsher the punishment, the
less likely it is to be committed is not true.296

(iii) The Case of Terrorism

4.3.21 An important question faced by this
Commission was whether the death penalty should be

292 David Anderson, The Deterrence Hypothesis and Picking Pockets at the Pick-
Pockets Hanging, Amer. Law & Econ. Rev. 295, 306 (2002).
293 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of

Legal Studies 173, 174 (2004).
294 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of

Legal Studies 173, 174 (2004).
295Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of

Legal Studies 173 (2004).
296 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of

Legal Studies 173, 174 (2004).

84
retained in the context of terrorism-related crimes, even
if it abolished for all other offences. One of the major
reasons for this proposition is that the death penalty
acts as an important tool for maintaining the security
of citizens and the integrity of the nation, by deterring
similar future crimes. Since terrorist crimes are very
different from ordinary crimes in terms of the motives
applicable, deterrence assumptions need a re-look to
ascertain whether it is desirous to perhaps retain the
death penalty for terrorism related crimes.
4.3.22 A view is taken by many that the death
penalty is unlikely to deter terrorists, since many are on
suicide missions (they are prepared to give up their life
for their 'cause'),297 there are other reasons why the
death penalty in fact might increase terrorist attacks.
The death penalty is often solicited by terrorists, since
upon execution, their political aims immediately stand
vindicated by the theatrics associated with an
execution.298 They not only get public attention, but
often even gain the support of organisations and
nations which oppose the death penalty. The
Indonesian Bali Bomber's reaction to news of his
conviction and execution was beaming and with a
"thumbs-up" as if he had just won an award.299
4.3.23 Jessica Stern, a pre-eminent expert on the
issue of terrorism opines:

297 Thomas Michael McDonnell, The Death Penalty-An Obstacle to the "War against
Terrorism?, 37 VAND. J. TRANSNAT'L L. 353, 390 (2004). See also President George W.
Bush's 2002 National Security Strategy, released roughly one year after 9/11, stating
that ''Traditional concepts of deterrence will not work against a terrorist enemy whose
avowed tactics are wanton destruction and the targeting of innocents; whose so-called
soldiers seek martyrdom in death and whose most potent protection is
statelessness...Deterrence-the promise of massive retaliation against nations-means
nothing against shadowy terrorist networks with no nation or citizens to defend''-
Commencement Address at the United States Military Academy in West Point, New
York, 38 W EEKLY COMP. PRES. DoC. 944, 946 (June 1, 2002); Bush's 2006 address
also addressed the same point "the terrorist enemies we face today hide in caves and
shadows and emerge to attack free nations from within. The terrorists have no borders
to protect or capital to defend. They cannot be deterred-but they will be defeated"- See
Commencement Address at the United States Military Academy in West Point, New
York, 42 W EEKLY COMP. PRES. Doc. 1037, 1039 (May 27, 2006).
298 Thomas Michael McDonnell, The Death Penalty-An Obstacle to the "War against

Terrorism?, 37 VAND. J. TRANSNAT'L L. 353 2004, 401.
299 Jane Perlez, Court Decides to Sentence Bali Bomber to Death, N.Y. TIMES, Aug.

8, 2003.

85
One can argue about the effectiveness of the death
penalty generally. But when it comes to terrorism,
national security concerns should be paramount.
The execution of terrorists, especially minor
operatives, has effects that go beyond retribution or
justice. The executions play right into the hands of
our adversaries. We turn criminals into martyrs,
invite retaliatory strikes and enhance the public
relations and fund-raising strategies of our
enemies.300
4.3.24 Similarly, while commenting on the specific
case of the Boston marathon Bomber, Dzhokhar
Tsarnaev, Alan Dershowitz writes:
Seeking the death penalty against Tsarnaev, and
imposing it if he were to be convicted, would turn
him into a martyr. His face would appear on
recruiting posters for suicide bombers. The
countdown toward his execution might well incite
other acts of terrorism. Those seeking paradise
through martyrdom would see him as a role
model...301

4.3.25 It is useful also to refer to Jeremy Bentham,
the pioneer of the deterrence theory. In the context of
"rebels" or in cases of "rebellion" (which can be roughly
equated to anti-nationals or terrorists), Bentham said
that executing them would not deter other potential
rebels, but in fact make the executed person a martyr,
whose death would inspire, and not deter potential
followers.302

4.3.26 Although there is no valid penological
justification for treating terrorism differently from other
crimes, concern is often raised that abolition of death
penalty for terrorism related offences will affect national
security. There is a sharp division among law-makers
due to this concern. Given these concerns raised by the

300 Jessica Stern, Execute Terrorists at Our Own Risk, NY Times, 28th February, 2001.
301 Alan Dershowitz, Dzhokhar Tsarnaev should not face the death penalty, even for a
capital crime, The Guardian, 24th April 2013.
302 HA Bedau, Bentham's Utilitarian Critique of the Death Penalty, 74 Journal of

Criminal Law and Criminology 1033, 1046 (1983).

86
law makers, the Commission does not see any reason
to wait any longer to take the first step towards abolition
of the death penalty for all offences other than terrorism
related offences.
D. Incapacitation
4.4.1 The theory of incapacitation advocates
dealing with offenders in such a way that they are not
in a position to re-offend.303 It is generally used as a
justification to impose longer sentences on repeat
offenders,304 "dangerous" criminals and "career
criminals."305 Capital punishment is the most extreme
form of incapacitation, since it implies taking the life of
the offender to ensure that he/she does not reoffend. A
person is sentenced to death using the incapacitation
rationale if it is determined that his/her existence
causes an unreasonable threat to society.306
4.4.2 To be able to use the incapacitation rationale,
it is essential that the sentencing court make an
assessment of "dangerousness" of the offender and the
possibility that the person is likely to reoffend.
4.4.3 The primary objection to executing a person
on grounds of incapacitation is the predictability
problem. Theorists have argued that it is virtually
impossible to be able to predict if the convicted offender
is likely to reoffend.307 Any exercise to predict recidivism
will always be over-inclusive and "identify false
positives."308 Such act of prediction is itself an arbitrary
exercise, which adds to the already existing

303 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE, 80 (4th ed. 2005)
304See: Christy A. Visher, Incapacitation and Crime Control: Does a "Lock 'Em Up"
Strategy Reduce Crime? 4 JUST. Q. 513, 539 (1987).
305 Christy A. Visher, Incapacitation and Crime Control: Does a "Lock 'Em Up" Strategy

Reduce Crime? 4 JUST. Q. 513, 539 (1987).
306 Harvey D. Ellis, Jr., COMMENTARY: Constitutional Law: The Death Penalty: A Critique

of the Philosophical Bases Held to Satisfy the Eight Amendment Requirements for Its
Justification, 34 OKLA. L. REV. 567, 609.
307 Sara F. Werboff, Halting the Sudden Descent into Brutality How Kennedy v.

Louisiana Presents a More Restrained Death Penalty Jurisprudence, 14 LEWIS & CLARK
L. REV. 1601, 1639 (2010).
308 James R. Acker, New York's Proposed Death Penalty Legislation: Constitutional

and Policy Perspectives, 54 ALB. L. REV. 515, 572 (1989-1990).

87
arbitrariness in imposition of the death penalty.309
Further, incapacitation involves punishing a person
severely for something that s/he has not done yet - that
is, for something that the person may or may not do in
the future, an outcome which is not just.310 Long
perfectly sums up the issue of "risk of future
dangerousness" by not executing a "dangerous" person
when he states - "such may simply be an inevitable risk
of living in a free, albeit imperfect, democratic society."311
4.4.4 Another argument that can be made against
executing an individual on grounds of incapacitation is
that it completely negates the possibility of reform,
which remains an important penological consideration
in India.312
4.5.5 In the cases of persons already incarcerated,
the possibility of reoffending is confined to situations
where convicts kill other convicts, or jail officials when
in prison.313 In the Indian context, the mandatory death
penalty that existed for such a situation was held
unconstitutional in Mithu v. State of Punjab.314 The
sentencing court will have to apply the 'rarest of rare
case' analysis to determine whether death is the
appropriate sentence. A person, even in such a
situation, cannot be executed in India on grounds only
of incapacitation.
4.4.6 The death penalty is an excessive
punishment when used for the purposes of
incapacitation, 315 since the incapacitation function can
be achieved by life imprisonment, as much as

309 Donald L. Beschle, What's Guilt (or Deterrence) Got To Do With It? The Death
Penalty, Ritual, and Mimetic Violence,38 W M. & MARY L. REV. 487, 502 (1996).
310 34 Okla. L. Rev. 567, 610
311 62 UMKC. L. Rev. 107, 170 (1993).
312 See part on Reformation below.
313 Donald L. Beschle, What's Guilt (or Deterrence) Got To Do With It? The Death

Penalty, Ritual, and Mimetic Violence, 38 W M. & MARY L. REV. 487, 502 (1996).
314(1983) 2 SCC 277. The Supreme Court also notes statistics in the United States with

respect to convicted murder convicts reoffending. It observed that although there is no
study in this regard in India, it is fair to assume that the incidence of murders by people
convicted of murder was minimal. See: (1983) 2 SCC 277, 292.
315 14 Lewis & Clark L. Rev. 1601, 1639 (2010).

88
execution.316 The convicted offender, being in custody,
does not get the opportunity to reoffend.317 Thus, it is
clear that incapacitation cannot be used as a
justification for the death penalty, but may be a valid
justification for life imprisonment.
E. Retribution
4.7.1 The theory of retribution focuses on the
offence committed and just treatment of the individual,
rather than prevention of crime.318 It asserts that blame
is made effective through punishing persons who
deserve unpleasant consequences on account of some
wrongful act that they intentionally and willingly did.319
4.7.2 There are two accounts of retribution - one
considers retribution as revenge. The other states that
retribution does not demand committing an equivalent
act on the offender, as is suggested by the "eye for an
eye" philosophy ("mirror punishment"). It rather
advocates a measured and appropriate level of
punishment for the offender's conduct.320
(i) Retribution as Revenge
4.7.3 The conception of retribution as revenge is
based on the understanding that the "undeserved evil"
inflicted by the criminal on the victim should be
matched by a similar amount of punishment to
him/her.321 As stated earlier, the oft-quoted adage - "an
eye for an eye," is an articulation of this approach.322
4.7.4 The Supreme Court has disapproved the
revenge based approach of retribution. In Deena v.

316 38 W M. & MARY L. REV. 487, 502 (1996). This was also articulated by the United
States Supreme Court in Furman v. Georgia, 408 U.S. 238, 311 (White, J. concurring).
317 See: Furman v. Georgia, 408 U.S. 238 (1972).
318 R. Wasserstrom, Some Problems with Theories of Punishment, in JUSTICE AND

PUNISHMENT 189 (J. Cederblom & W. Blizek eds., 1977).
319 Mary Ellen Gale, Retribution, Punishment, and Death, 18 U.C. Davis L. Rev. 973,

999-1000 (1985).
320 SUSAN EASTON AND CHRISTINE PIPER, SENTENCING AND PUNISHMENT: THE QUEST FOR

JUSTICE 57 (2012).
321 IMMANUEL KANT, THE METAPHYSICS OF MORALS 141-42 (M.J. Gregor trans., 1996);

JEFFRIE G. MURPHY, KANT : THE PHILOSOPHY OF RIGHT 124 (1994).
322 SUSAN EASTON AND CHRISTINE PIPER, SENTENCING AND PUNISHMENT: THE QUEST FOR

JUSTICE 57 (2012).

89
Union of India,323 the Court ruled that "[t]he retribution
involved in the theory 'tooth for tooth' and 'an eye for an
eye' has no place in the scheme of civilized
jurisprudence."324 More recently, in Shatrughan
Chauhan v. Union of India,325the Supreme Court ruled
that "retribution has no Constitutional value"326in
India. It held that "an accused has a de- facto protection
under the Constitution and it is the Court's duty to shield
and protect the same."327 It further held that such
protection extends to "every convict including death
convicts."328 Thus, the Supreme Court has now clearly
recognized that retribution in the form of revenge as a
justification for punishment does not pass
Constitutional muster. The Court has also reiterated
that "the retributive theory has had its day and is no
longer valid."329
4.7.5 In Bachan Singh,330 the Court observed that
"retribution in the sense of society's reprobation for the
worst of crimes is not an altogether outmoded
concept."331 This understanding views retribution not as
"revenge," but as condemnation of the offender's
actions. Thus, Bachan Singh did not advocate the "eye
for an eye" approach.
(ii) Retribution as Punishment Deserved by the
Offender
4.7.6 The concept of "desert" provides the modern
understanding and the basis of the retributive theory.332
It prescribes that a wrong action should be met by a
sanction appropriate to the action, and deserved by the
offender.333 It states that retribution being equated with

323 (1983) 4 SCC 645.
324 Deena v. Union of India, (1983) 4 SCC 645, at para 10.
325 (2014) 3 SCC 1.
326 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 245.
327 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 245.
328 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 245.
329 Rajendra Prasad v. State of U.P., (1979) 3 SCC 646, at para 88.
330 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
331 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 102.
332 Mary Ellen Gale, Retribution, Punishment, and Death, 18 U.C. Davis L. Rev. 973,

1003 (1985).
333 SUSAN EASTON AND CHRISTINE PIPER, SENTENCING AND PUNISHMENT: THE QUEST FOR

JUSTICE 57 (2012).

90
revenge is a myth,334 since conflating retribution and
revenge does not incorporate "the complexity of modern
criminal law, with its focus on degrees of intent and on
matters of mitigation and excuse."335
4.7.7 In Dhananjoy Chatterjee v. State of West
Bengal, 336 the Supreme Court ruled that "imposition of
appropriate punishment is the manner in which the
courts respond to the society's cry for justice against the
criminals."337 Subsequently, 'Society's cry for justice'
has been regularly used by the Supreme Court as a
justification to impose the death sentence.338
4.7.8 The justification of punishment using "
'society's cry for justice' does not fit into the conception
of retribution as punishment deserved by the offender,
since it fails to focus on whether the convict deserves
the punishment, including the death sentence. Most
cases that have relied on 'society's cry for justice' as a
sentencing justification have generally not analysed
aggravating and mitigating factors in each individual
case,339 a step that is required for assessing whether the
sentence is deserved.340
4.7.9 Further, retribution does not provide any
guidance in relation to the question of "how much" to
punish, or how approximate the punishment should
be.341 Retributive justice is said to have calibration
334 Gerard V. Bradley, Retribution: The Central Aim of Punishment, 27 Harv. J.L. & Pub.
Pol'y 19, 21 (2003).
335 H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 164-165 (1968); Mary Ellen Gale,

Retribution, Punishment, and Death, 18 U.C. Davis L. Rev. 973, 1013 (1985).
336 (1994) 2 SCC 220.
337 Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220, at para 15.
338 Dhananjoy Chatterjee v. State of West Bengal, 1994) 2 SCC 220; Jameel v. State

of U.P., (2010) 12 SCC 532; State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v.
State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra,
(2008) 7 SCC 561; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of
U.P. v. Sri Krishan, (2005) 10 SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999)
5 SCC 1; Ravji v. State of Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of
Rajasthan, (1994) 2 SCC 467; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12
SCC 715; State of U.P. v. Sattan @ Satyendra, (2009) 4 SCC 736; State of Madhya
Pradesh v. Santosh Kumar, (2006) 6 SCC 1; Shailesh Jasvantbhai v. State of Gujarat,
(2006) 2 SCC 359.
339 Om Prakash v. State of Haryana, (1999) 3 SCC 19; Jameel v. State of U.P., (2010)

12 SCC 532; State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008)
11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561.
340 Om Prakash v. State of Haryana, (1999) 3 SCC 19, at para 7.
341 Claire Finkelstein, Death and Retribution, 21 Crim. Just. Ethics 12, 13 (2002)

91
problems, wherein one cannot know where to stop while
sliding "a scale of punishments past a scale of
crimes".342 Theorists say that the use of capital
punishment cannot be justified in a retributive system
of criminal justice.343
F. Proportionality
4.8.1 Censuring the offender and communicating
society's disapproval of his/her actions is a primary goal
of the theory of proportionality.344 The society's censure
of the offender's actions is communicated to him/her by
imposing a proportionate sentence - one that is not
greater than what s/he deserves.345 Proportionality
through its communicative function aims to make the
offender repent his/her actions.346 This is done by
providing the offender the means to express remorse.
Further, a core requirement of the theory of
proportionality is that the punishment imposed should
not be "out of proportion to the gravity of the crime
involved."347 Section 143(1) of the [U.K.] Criminal
Justice Act, 2003 provides an illustration of this
principle. It states that "In considering the seriousness
of any offence, the court must consider the offender's
culpability in committing the offence and any harm which
the offence caused, was intended to cause or might
foreseeably have caused."
4.8.2 The severity of the sentence is an important
consideration for the theory of proportionality, since a
disproportionate or severe punishment overpowers the
element of censure.348 Consequently, the theory favours

342 Andrew Oldenquist, Retribution and the Death Penalty, 29 U. Dayton L. Rev. 335,
338 (2003).
343 MATTHEW H. KRAMER, THE ETHICS OF CAPITAL PUNISHMENT: A PHILOSOPHICAL

INVESTIGATION OF EVIL AND ITS CONSEQUENCES DEATH FOR RETRIBUTION 77 (2011).
344 P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 1 (1974); Andrew

von Hirsch, Proportionality in the Philosophy of Punishment: From "Why Punish?" to
"How Much?", 25 Isr. L. Rev. 549, 561 (1991),
345 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 84 (2005).
346 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 84 (2005). See: Andrew von

Hirsch, Proportionality in the Philosophy of Punishment, 16 Crime & Justice 67 (1992);
R.A. DUFF, TRIALS AND PUNISHMENTS (1986).
347 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 84 (2005).
348 ANDREW VON HIRSCH AND ANDREW ASHWORTH, PROPORTIONATE SENTENCING:

EXPLORING THE PRINCIPLES 143 (2005).

92
lower levels of incarceration and a pro rata reduction of
existing penalty scales across jurisdictions.349
Proportionality respects rule of law values, and places
limits on the sentencing power.350
4.8.3 In some cases, the Supreme Court has used
proportionality as a penological goal.351 Ruling that
"[t]he criminal law adheres in general to the principle of
proportionality in prescribing liability according to the
culpability of each kind of criminal conduct,"352 the Court
has used proportionality as a justification to impose the
death penalty.353 The Court has also read into the
principle of proportionality, the requirement of taking
societal considerations into account. It observed: "the
doctrine of proportionality has a valuable application to
the sentencing policy under the Indian criminal
jurisprudence...[T]he court will not only have to examine
what is just but also as to what the accused deserves
keeping in view the impact on the society at large."354 It
has also stated that "imposition of sentence without
considering its effect on the social order in many cases
may be in reality a futile exercise."355
4.8.4 A three-judge Bench of the Supreme Court
has recently provided guidance on how the doctrine of
proportionality can be applied in the death penalty
context. The Court held:

349 SUSAN EASTON AND CHRISTINE PIPER, SENTENCING AND PUNISHMENT: THE QUEST FOR
JUSTICE 61 (2012); Malcolm Thorburn, Proportionate Sentencing and the Rule of Law,
in PRINCIPLES AND VALUES IN CRIMINAL LAW AND CRIMINAL JUSTICE: ESSAYS IN HONOUR
OF ANDREW ASHWORTH 269 (Lucia Zedner and Julian V. Roberts eds. 2012); Barry
Pollack, Deserts and Death: Limits on Maximum Punishment, 44 Rutgers L. Rev. 985
(1991-1992).
350 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 84 (2005).
351See Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Lehna

v. State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish, (2005) 3 SCC 114;
Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561.
352 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713, at para 25;

Lehna v. State of Haryana, (2002) 3 SCC 76, at para 27; State of U.P. v. Satish, (2005)
3 SCC 114, at para 29; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC
561, at para 21; Lehna v. State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish,
(2005) 3 SCC 114; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561.
353 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Lehna v.

State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish, (2005) 3 SCC 114; Mohan
Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561.
354 Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289, 305 (citing

Ramnaresh and others v. State Of Chhattisgarh, (2012) 4 SCC 257, 287.)
355Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667, at para 15.

93
In dealing with questions of proportionality of
sentences, capital punishment is considered
to be different in kind and degree from
sentence of imprisonment. The result is that
while there are several instances when capital
punishment has been considered to be
disproportionate to the offence committed,
there are very few and rare cases of sentence
of imprisonment being held
disproportionate. 356

4.8.5 An accurate understanding and application
of the theory of proportionality can be found in Bariyar,
in which the Court provided a framework within which
the sentencing exercise should be undertaken in a
death penalty case. It said that the court should first
compare the facts of the case before it with a "pool of
equivalently circumstanced capital defendants."357 The
gravity and nature of the crime, as well as the motive of
the offender may be considered in this analysis. The
aggravating and mitigating circumstances should then
be identified. These should also be compared with a pool
of comparable cases. This would ensure that the court
considers similarly placed cases together, and the
exercise would inform the court of how a similar case
has been dealt with earlier. The Court opined that this
exercise may point out excessiveness in sentencing, if
any, and at the same time reduce arbitrariness to a
certain extent. It also advised that the exercise proposed
by it should definitely be undertaken if the sentencing
court opts to impose the death penalty on the convicted
person. Importantly, the court also held that reasoning
is the most important element to ensure "principled
sentencing."358
4.8.6 As mentioned earlier, the core focus of
proportionality is censure. The communicative aspect of
punishment is also an important consideration. The

356 Vikram Singh v. Union of India, Criminal Appeal No. 824 of 2013 (SC), dated 21
August, 2015, at para 49.
357 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498,

at para 131.
358 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

94
censure and communicative aspect are better achieved
through life imprisonment, rather than by imposing the
death penalty on the offender. Incarceration provides
the offender the means to express remorse and
communicates the society's disapproval for his/her
actions. The death penalty, on the other hand,
undermines the communicative aspect of the
punishment, since the offender's life is taken away.
Hence, from this perspective, life imprisonment serves
the proportionality goal more adequately than the death
penalty.

4.8.7 The other communicative aspect of
proportionality is the communication to society that the
offender's actions are not acceptable. In this context, it
is pertinent to note the "brutalization effect."359 Bowers
and Pierce argue that when killings are carried out by a
state, it undermines the communicative aspect by
justifying what it seeks to condemn. It also devalues life
in the eyes of the common person which further
empowers offenders.360

G. Reformation

4.9.1 The theory of reformation strives to
transform all offenders into peaceful, productive and
capable citizens of society. Reformation assumes that
offenders are capable of change, and once the reasons
for the commission of the crime are removed, they can
lead ordinary and fulfilling lives.361
4.9.2 While it is clear that when a person is
sentenced to death, the ideal of reformation has clearly
lost its priority in sentencing, discussions of
reformation have often been (and indeed, are required
to be) a part of death penalty adjudication. This is
because reformation is a central normative commitment
359 William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect
of Executions?, 26 Crime & Delinq. 453 (1980); Joanna Shepherd, Capital
Punishment's Differing Impacts among States, 104 MICHIGAN LAW REVIEW (2005).
360 William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect

of Executions? 26 Crime & Delinq. 453 (1980). See also: H.L.A. HART, PUNISHMENT AND
RESPONSIBILITY, 88 (2008).
361 Andrew Ashworth, Sentencing and Criminal Justice 82 (2005).

95
of our criminal justice system, and because only those
offenders who are adjudged beyond reform, and proven
to be so, through conclusive evidence adduced by the
prosecution, can ever be sentenced to death.
(i) Supreme Court on Reformation
4.9.3 Even before the Supreme Court in Bachan
Singh advocated reformation as a theory to be
considered in death sentence adjudication, this penal
policy was being consistently articulated by the Court,
both in the death penalty and non-death penalty
contexts. In Ediga Annamma v. State of Andhra
Pradesh,362 the Court emphasized the need to adduce
evidence regarding the "facts of a social and personal
nature" at the sentencing stage. This was to ensure that
reformation was given as much importance as
deterrence.363
4.9.4 Similarly, in Sunil Batra v. Delhi
Administration 364 the Court held that rehabilitation and
reformation are very much a part of sentencing policy
in our criminal justice system, and tried to align current
prison practices with constitutional norms which
demand the rehabilitation of prisoners. It observed that
"[a] rehabilitation purpose is or ought to be implicit in
every sentence of an offender unless ordered otherwise
by the sentencing court."365
4.9.5 The court in Batra also referred to
Mohammad Giasuddin v. State of A.P,366 where it had
held that the modern community has a primary stake
in reformation of the offender, and the focus should be
therapeutic rather than an "in terrorem" outlook.367
The Court observed: "The whole man is a healthy
man and every man is born good. Criminality is a
curable deviance.... Our prisons should be correctional
houses, not cruel iron aching the soul...We make these

362 (1974) 4 SCC 443
363 See Ediga Anamma, (1974) 4 SCC 443, at para 14.
364 Sunil Batra v. Delhi Admn. (1978) 4 SCC 494.
365 See Sunil Batra,(1978) 4 SCC 494, at para 30.
366 (1977) 3 SCC 287.
367 See Giasuddin,(1977) 3 SCC 287, at para 8.

96
persistent observations only to drive home the
imperative of Freedom -- that its deprivation, by
the State, is validated only by a plan to make the
sentences more worthy of that birth right.368
(Emphasis supplied)
4.9.6 The reformation ideal has similarly been
articulated by the Supreme Court in other cases.369 In
this background came Bachan Singh which
emphatically made this reformatory aspect a part of
death penalty adjudication while evolving the 'rarest of
rare case' test.

4.9.7 In Bachan Singh v. State of Punjab,370 the
Supreme Court held that rehabilitation is an express
sentencing goal, and must never be ignored especially
in the death penalty context. It held that the death
penalty should not be imposed "save in the rarest of rare
cases when the alternative option is unquestionably
foreclosed."371(Emphasis supplied)
4.9.8 The Supreme Court has again recently
reiterated the need for the production of evidence of
'beyond reform' in death penalty cases.372 Discussing
the "rarest of rare" test as laid down in Bachan Singh,
the court split the test into two parts; the first step
involves deciding whether the case should belong to the
'rarest of rare' category, and the second deciding
whether the alternative option of life imprisonment will
not suffice in the facts of the case. Commenting on the
second step, the Court held: [L]ife imprisonment [is]
completely futile, only when the sentencing aim of
reformation can be said to be unachievable. Therefore,
for satisfying the second exception to the rarest of
rare doctrine, the court will have to provide clear
evidence as to why the convict is not fit for any

368See Giasuddin,(1977) 3 SCC 287, at paras 24-25.
369Bishnu Deo Shaw v. State of West Bengal, (1979) 3 S.C.C 714; Maru Ram v. Union
of India, (1981) 1 SCC 107.
370 (1980) 2 SCC 684.
371Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
372 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498.

97
kind of reformatory and rehabilitation scheme.373
(Emphasis supplied)
4.9.9 Thus, in addition to adjudging a case "rarest
of rare," an equally important part of imposing the death
penalty is whether the offender is amenable to reform
or not. Various circumstances need to be assessed while
determining whether an offender should be sentenced
to death. It is important to note that these are
circumstances of both the criminal and the crime, as
has been held by the Supreme Court.374
4.9.10 The mandate of the Court in Bachan Singh,
which requires the court to assess whether the offender
is capable of reform and whether life imprisonment is
unquestionably foreclosed, has often been ignored in
death penalty adjudication.375 Evidence regarding the
offender being 'beyond reform' is seldom adduced and
considered.376
4.9.11 Some critics have opined that if reformation
is a principle of sentencing, and evidence of 'beyond
reform' is to be considered, it is never possible to
conclude that an offender is beyond reform, since there
are always some extenuating circumstances to be
found. In Justice Bhagwati's words:
There is no way of accurately predicting or knowing
with any degree of moral certainty that murderer
will not be reformed or is incapable of reformation.
All we know is that there have been many
successes even with the most vicious of
cases...[M]any...examples clearly show that it
is not possible to know beforehand with any
degree of certainty that a murderer is beyond
reformation.377 (Emphasis supplied)

373Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498.
374Rajendra Prasad v. State of U.P; see also Bachan Singh v. State of Punjab, (1980)
2 SCC 684 Santosh Bariyar, (2009) 6 SCC 498, Ediga Anamma, (1974) 4 SCC 443.
375 See discussion in Chapter 5 on arbitrariness in death penalty adjudication.
376See discussion in Chapter 5. See also: Aparna Chandra, A Capricious Noose: A

Comment on the Trial Court Sentencing Order in the December 16 Gang Rape Case,
2 J. NLUD 124 (2014).
377Madhu Mehta v. Union of India (1984) 4 SCC 62.

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H. Other important issues

(i) Public Opinion

4.10.1 An important reason often cited by
governments for retaining the death penalty is that
public opinion demands the same. The 35th Report of
the Law Commission also considered public opinion as
an important factor in the context of the death
penalty.378

4.10.2 One could argue that public opinion is
indeed a factor to be considered while making important
decisions which effect the population at large. However,
it is not necessary for the government to follow public
opinion on every issue. Indeed, the Government has a
duty to drive public opinion towards options which
support fairness, dignity and justice, which are
constitutionally enshrined ideals. It is useful to quote
the former UN Human Rights High Commissioner, Navi
Pillay, who says:

Human progress does not stand still. Popular
support for the death penalty today does not mean
that it will still be there tomorrow. There are
undisputed historical precedents where laws,
policies and practices that were inconsistent with
human rights standards had the support of a
majority of the people, but were proven wrong and
eventually abolished or banned. Leaders must
show the way how deeply incompatible the
death penalty is with human dignity.379
(Emphasis supplied)
4.10.3 There are multiple instances where
governments around the world have abolished the
death penalty contrary to current public opinion, both
378The 35th Report apprehended that if the law were to go against public opinion, it is
possible that the public would indulge in acts of revenge, by killing or injuring offenders
themselves. (See Law Commission of India, 35th Report, 1967, Ministry of Law,
Government of India, at para 265 (22).)
379 Moving away from the Death Penalty: Lessons from South-East Asia, United

Nations Human Rights Commission 9 (2014).

99
in Asia and in the West.380 Very few of the current
abolitionist countries would have been able to ever
abolish the death penalty had they waited for public
opinion to change on the issue.381 Moreover, once the
death penalty was abolished, the legal framework
caused the public opinion to change radically on the
issue, and now the death penalty is thought of as
unthinkable.382 The Indian experience of laws governing
social issues, such as Sati, dowry prohibition,
untouchability, and child marriage is testament to the
fact that the government has the power to lead public
opinion even against deeply entrenched cultural norms
and indeed an obligation to do so when faced with issues
concerning human dignity and equality.
I. The Move towards Restorative Justice
4.11.1 In focusing on death penalty as the ultimate
measure of justice to victims, the restorative and
rehabilitative aspects of justice are lost sight of.
Reliance on the death penalty diverts attention from
other problems ailing the criminal justice system such
as poor investigation, crime prevention and rights of
victims of crime.
4.11.2 A major development in the late-twentieth
century was the focus on the rights and needs of victims
of crime. Restorative theories of criminal justice also
emerged during that time.383 As Ashworth notes "[t]he
fundamental proposition is that justice to victims become
a central goal of the criminal justice system and of
sentencing."384 Ashworth further says that "restorative
justice has considerable attractions as a constructive
and socially inclusive way of responding to criminal
behaviour."385

380 Moving away from the Death Penalty: Lessons from South-East Asia, United
Nations Human Rights Commission 9 (2014).
381Jon Yorke, AGAINST THE DEATH PENALTY 262 (1st ed. 2008).
382Eg. France and UK; See also Roger Hood Speech at the Law Commission National

Consultation on 10 July, 2015.
383 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 88 (2005).
384 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 88 (2005).
385 ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 89 (2005).

100
4.11.3 The need for police reforms for better and
more effective investigation and prosecution has also
been universally felt for some time now and measures
regarding the same need to be taken on a priority basis.
The Supreme Court in Prakash Singh v. Union of
India,386 held:
Having regard to (i) the gravity of the problem;
(ii) the urgent need for preservation and
strengthening of the rule of law; (iii) pendency
of even this petition for the last over ten years;
(iv) the fact that various commissions and
committees have made recommendations on
similar lines for introducing reforms in the
police set-up in the country; and (v) total
uncertainty as to when police reforms would
be introduced, we think that there cannot be
any further wait, and the stage has come for
issuing of appropriate directions for immediate
compliance so as to be operative till such time
a new model Police Act is prepared by the
Central Government and/or the State
Governments pass the requisite legislations. It
may further be noted that the quality of the
criminal justice system in the country, to a
large extent, depends upon the working of the
police force. Thus, having regard to the larger
public interest, it is absolutely necessary to
issue the requisite directions. Nearly ten years
back, in Vineet Narain v.Union of India [(1998)
1 SCC 226 : 1998 SCC (Cri) 307] this Court
noticed the urgent need for the State
Governments to set up the requisite
mechanism and directed the Central
Government to pursue the matter of police
reforms with the State Governments and
ensure the setting up of a mechanism for
selection/appointment, tenure, transfer and
posting of not merely the Chief of the State
Police but also all police officers of the rank of
Superintendents of Police and above. The

386 (2006) 8 SCC 1.

101
Court expressed its shock that in some States
the tenure of a Superintendent of Police is for
a few months and transfers are made for
whimsical reasons which has not only
102oliticizing effect on the police force but is
also alien to the envisaged constitutional
machinery. It was observed that apart from
102oliticizing the police force, it has also the
adverse effect of 102oliticizing the personnel
and, therefore, it is essential that prompt
measures are taken by the Central
Government.387
4.11.4 Measures should be taken to implement the
directions of the Supreme Court in Prakash Singh.
4.11.5 The voices of victims and witnesses are often
silenced by threats and other coercive techniques
employed by powerful accused persons. Hence it is
essential that a witness protection scheme also be
established.388
4.11.6 It is essential that the State establish
effective victim compensation schemes to rehabilitate
victims of crime. At the same time, it is also important
that courts use the power granted to them under the
Code of Criminal Procedure, 1973 to grant appropriate
compensation to victims in suitable cases.
4.11.7 Compensation for criminal acts is provided in
Sections 357 and 357A of the Code of Criminal
Procedure, 1973 ("CrPC"). Under Section 357(1), when
a fine is imposed on a convict as part of the sentence,
the judge can order that whole or part of the fine
amount be paid as compensation to the victim
(including to beneficiaries under the Fatal Accidents
Act, 1855). Under this provision, the compensation
amount cannot be greater than the fine imposed upon
the convict.

387 (2006) 8 SCC 1 at para 26.
388 Witness protection schemes have been proposed judicially by the Delhi High Court
in Neelam Katara v. Union of India, ILR (2003) 2 Del 377. A beginning has been made
in this regard by the Government of Delhi, which notified a witness protection scheme
in July 2015.

102
4.11.8 Under Section 357(3), when no fine has been
imposed as part of the sentence, the judge may order
the convict to pay, by way of compensation, such
amount to the victim, as the judge may specify. While
there is no limit on the amount of compensation that
can be awarded under this provision, the Supreme
Court has held that in fixing the amount of
compensation under Section 357(3), Courts should take
into account the facts and circumstances of each case,
the nature of the crime, the justness of the claim and
the capacity of the accused to pay.389
4.11.9 It is pertinent to note that under clauses (1)
and (3) of section 357, compensation is recoverable only
from the wrongdoer, and only after the guilt of the
wrongdoer is established.
4.11.10 In order to deal with cases where the
compensation amount under Section 357 is not
adequate to rehabilitate the victim,390 or where no
wrongdoer has been identified, traced, or convicted,
Section 357A provides that the State shall create a Fund
for the compensation and rehabilitation of victims of
crime. A scheme under this section is required to be set
up by State Governments in consultation with the
Centre, and the State has to allocate funds for the
scheme. Several state schemes have been established
under this provision since its enactment in 2008.391
4.11.11 In this context, the Supreme Court in Suresh
v. State of Haryana,392 issued directions relating to
victim compensation and ruled that:
We are informed that 25 out of 29 State
Governments have notified victim
compensation schemes. The schemes specify
maximum limit of compensation and subject to
maximum limit, the discretion to decide the

389Ankush Shivaji Gaikwad v. State of Maharashtra, AIR 2013 SC 2454. The Delhi High
Court in Vikas Yadav v. State of Uttar Pradesh, (2015) 218 DLT (CN) 1, summarized
the law with respect to victim compensation and provided guidelines in this regard.
390For the definition of victim for the purposes of the CrPC, see Section 2 (wa), CrPC.
391See e.g., Delhi Victims Compensation Scheme, 2011; Odisha Victim Compensation

Scheme, 2012; Tamil Nadu Victim Compensation Scheme, 2013.
392 (2015) 2 SCC 227.

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quantum has been left with the State/District
Legal Authorities. It has been brought to our
notice that even though almost a period of five
years has expired since the enactment of
Section 357-A CrPC, the award of
compensation has not become a rule and
interim compensation, which is very
important, is not being granted by the courts.
It has also been pointed out that the upper
limit of compensation fixed by some of the
States is arbitrarily low and is not in keeping
with the object of the legislation.
We are of the view that it is the duty of the
courts, on taking cognizance of a criminal
offence, to ascertain whether there is tangible
material to show commission of crime,
whether the victim is identifiable and whether
the victim of crime needs immediate financial
relief. On being satisfied on an application or
on its own motion, the court ought to direct
grant of interim compensation, subject to final
compensation being determined later. Such
duty continues at every stage of a criminal
case where compensation ought to be given
and has not been given, irrespective of the
application by the victim. At the stage of final
hearing it is obligatory on the part of the court
to advert to the provision and record a finding
whether a case for grant of compensation has
been made out and, if so, who is entitled to
compensation and how much. Award of such
compensation can be interim. Gravity of
offence and need of victim are some of the
guiding factors to be kept in mind, apart from
such other factors as may be found relevant in
the facts and circumstances of an individual
case.
We are also of the view that there is need to
consider upward revision in the scale for
compensation and pending such consideration
to adopt the scale notified by the State of
104
Kerala in its scheme, unless the scale
awarded by any other State or Union Territory
is higher. The States of Andhra Pradesh,
Madhya Pradesh, Meghalaya and Telangana
are directed to notify their schemes within one
month from the receipt of a copy of this
order.393
4.11.12 Accordingly, the Commission is of the view
that the victim compensation scheme as recommended
by the Supreme Court in Suresh be implemented.

393 (2015) 2 SCC 227, para 15-17.

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CHAPTER - V
SENTENCING IN CAPITAL OFFENCES
A. The Bachan Singh Framework: Guided
Discretion and Individualized Sentencing
5.1.1 In Bachan Singh v. State of Punjab,394
('Bachan Singh') the Court had to address the following
challenges to the death penalty:
(I) Whether death penalty provided for the offence
of murder in Section 302, Indian Penal Code is
unconstitutional.
(II) If the answer to the foregoing question be in
the negative, whether the sentencing procedure
provided in Section 354(3) of the CrPC, 1973 (Act
2 of 1974) is unconstitutional on the ground that
it invests the Court with unguided and
untrammelled discretion and allows death
sentence to be arbitrarily or freakishly imposed
on a person found guilty of murder or any other
capital offence punishable under the Indian
Penal Code with death or, in the alternative, with
imprisonment for life.395
5.1.2 The Court rejected the first contention,
finding instead that the death penalty met the
requirement of reasonableness in Article 19 and 21,
primarily since a sizable body of opinion holds the view
that the death penalty is a rational punishment. As for
the second, it dealt with the concern that the Cr.P.C.
"invests the Court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily or
freakishly imposed"396 by deriving principles from
legislative policy as well as judicial precedent, to guide
the court in deciding whether to impose the death
penalty in a given case.
5.1.3 To save the death penalty from the vice of
arbitrariness, the Court sought to walk a tightrope
394 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
395 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15.
396 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15.

106
between too much judicial discretion and too little, both
of which could result in arbitrary and unfair sentencing.
On the one hand, the Court held that it was "neither
practicable nor desirable"397 to lay down a rigid or
straight-jacket formula or categories for the application
of the death penalty. No two cases are exactly identical,
and there are "infinite, unpredictable and unforeseeable
variations ... (and) countless permutations and
combinations"398 even with a single category of offences.
A mechanical, formulaic approach, not calibrated to the
"variations in culpability"399 even within a single type or
category of offence, would cease to be judicial in nature.
Rather, such standardization would "sacrifice justice at
the altar of blind uniformity"400 and may end up
"degenerating into a bed of procrustean cruelty."401
5.1.4 At the same time, the Court held that the
legislative policy indicated that the following principles
should guide judicial discretion in determining the
appropriate sentence for murder:

1. For the offence of murder, life imprisonment is
the rule and death sentence an exception.
2. This exceptional penalty can be imposed "only in
gravest cases of extreme culpability" taking
into account the aggravating and mitigating
circumstances in a case, paying due regard to the
"circumstances of the offence," as well as the
"circumstances of the offender."
3. To prevent sentencing from becoming arbitrary,
the Court endorsed the view that the
determination of aggravating and mitigating
circumstances should be based on "well-
recognised principles... crystallised by judicial
decisions illustrating as to what were regarded as
aggravating or mitigating circumstances in those
cases."402 The Court thus prescribed a process

397 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 195.
398 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 172.
399 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173.
400 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173.
401 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 173.
402 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 165.

107
of principled sentencing, and held that the
determination of aggravating and mitigating
factors would be based on a determinate set of
standards created through the evolutionary
process of judicial precedents.
4. Only if the analysis of aggravating and mitigating
circumstances, as indicated above, provided
"exceptional reasons" for death, would capital
punishment be justified, because "[a] real and
abiding concern for the dignity of human life
postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative
option is unquestionably foreclosed."403
5.1.5 According to the Court therefore, the
principles indicated above provided sufficient guidance
for the exercise of judicial discretion in sentencing for
murder, and saved the death penalty from the charge of
arbitrariness.
B. Implementation of the Bachan Singh
Framework
5.2.1 Despite the Court's optimism in Bachan
Singh that its guidelines will minimise the risk of
arbitrary imposition of the death penalty, concerns that
capital punishment is "arbitrarily or freakishly
imposed"404 continue to haunt death penalty
jurisprudence in India. In the last decade itself, in cases
like Aloke Nath Dutta v. State of West Bengal,405 Swamy
Shraddhananda v. State of Karnataka,406 Santosh
Bariyar v. State of Maharashtra,407 Mohd. Farooq Abdul
Gafur v. State of Maharashtra,408 Sangeet v. State of
Haryana,409 Shankar Khade v. State of Maharashtra,410

403 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
404 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15.
405 Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230.
406 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.
407 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
408 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
409 Sangeet v. State of Haryana, (2013) 2 SCC 452.
410 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

108
and Ashok Debbarma v. State of Tripura,411 the Supreme
Court has acknowledged that the application of the
death penalty is subjective and arbitrary and that "even
though Bachan Singh intended "principled sentencing",
sentencing has now really become judge- centric..."412
Thus, "the confirmation of death sentence or its
commutation by this Court depends a good deal on the
personal predilection of the judges constituting the
Bench."413 Recognizing this to be a "serious
admission"414 on its part, the Court in Santosh Bariyar
admitted that "there is inconsistency in how Bachan
Singh has been implemented, as Bachan Singh
mandated principled sentencing and not judge centric
sentencing."415
5.2.2 Noting that "the Bachan Singh threshold of
"the rarest of rare cases" has been most variedly and
inconsistently applied,"416 the Supreme Court has
recognized that "the balance sheet of aggravating and
mitigating circumstances approach invoked on a case-by-
case basis has not worked sufficiently well so as to
remove the vice of arbitrariness from our capital
sentencing system."417 Where Bachan Singh held that
well recognized principles evolved through judicial
precedent would guide courts in capital sentencing, in
Mohd. Farooq, the Supreme Court admitted that "the
precedent on death penalty ... is [itself] crumbling down
under the weight of disparate interpretations."418
5.2.3 Enumerating cases where different Benches
have reached diametrically opposite results in cases
which have similar facts and circumstances,419 the
Supreme Court has called the "lack of consistency" 420

411 Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747 ("Arbitrariness,
discrimination and inconsistency often loom large, when we analyze some of judicial
pronouncements awarding sentence").
412 Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.
413 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC. 767, at para 51.
414 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 54.
415 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 54.
416 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 109.
417 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 109.
418 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para

165.
419 See below.
420 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52.

109
and "want of uniformity" 421 in capital sentencing, "a
poor reflection of the system of criminal administration of
justice."422 The Court has expressed concern that the
"extremely uneven application of Bachan Singh has given
rise to a state of uncertainty in capital sentencing law
which clearly falls foul of constitutional due process and
equality principle."423
5.2.4 In Bachan Singh, the Supreme Court had
called upon judges to "discharge the onerous function (of
deciding whether or not to impose the death penalty) with
evermore scrupulous care and humane concern."424
Echoing a similar sentiment, in Bariyar, the Court noted
that "the conclusion that the case belongs to rarest of rare
category must conform to highest standards of judicial
rigor and thoroughness."425 However, as the Court has
itself recognized over and again, there exist multiple
layers of inconsistencies in India's death penalty
jurisprudence, which make it difficult to achieve rigor in
sentencing decisions in capital offences. At the most
basic level, the death penalty jurisprudence displays
varied and often competing understandings of the
penological purposes of the death penalty itself. Since
this aspect has been covered in the previous chapter, it
will not be dealt with here.426
5.2.5 In what follows, this Report examines the
concerns regarding arbitrariness in India's capital
sentencing regime, as highlighted by the Supreme Court
itself, supplemented by scholarly interventions,
empirical data, and comparative insights.

(i) Doctrinal Frameworks
5.2.6 In Bachan Singh, the Court had emphasized
the importance of individualized yet principled
sentencing. Holding that there are infinite permutations
and combinations even in single category offences, the

421 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52.
422 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52.
423 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 110.
424 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
425 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 61.
426 See Chapter IV above.

110
Court had refused to create categories of offences for
which the death penalty would be applicable. Instead,
the Court required judges to take into account, in each
individual case, the aggravating and mitigating
circumstances of both the crime as well as the criminal,
in determining the sentence. Recognizing that
circumstances relating to the crime and the criminal are
often "so intertwined that it is difficult to give a separate
treatment to each of them,"427 the Court held that it was
"not desirable to consider the circumstances of the
crime and the circumstances of the criminal in two
separate water-tight compartments."428 However, in
subsequent cases, the Court has given varying
interpretations to the Bachan Singh requirements and
different judges have understood the mandate of
Bachan Singh differently.

a. Machhi Singh
5.2.7 Three years after Bachan Singh, a 3 judge
Bench of the Supreme Court in Machhi Singh v. State of
Punjab,429 ('Machi Singh') listed out five categories of
cases for which the death penalty was a suitable option.
The Court held that the death penalty may be imposed
where the "collective conscience"430 of society is so
shocked that "it will expect the holders of the judicial
power centre to inflict death penalty."431 According to
the Court, "[t]he community may entrain such a
sentiment when the crime is viewed from the platform of
the motive for, or the manner of commission of the crime,
or the anti-social or abhorrent nature of the crime."432

427 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 201.
428 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 201.
429 Machhi Singh v. State of Punjab, (1983) 3 SCC 470.
430 Machhi Singh v. State of Punjab, (1983) 3 SCC 470, at para 32.
431 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 at para 32.
432 Machhi Singh v. State of Punjab (1983) 3 SCC 470, at paras 33-37, explained these

categories in detail as follows: I 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. For instance, (i)
When the house of the victim is set aflame with the end in view to roast him alive in the
house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to
bring about his or her death. (iii)When the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II Motive for Commission of murder: When the murder is committed for a motive which
evince total depravity and meanness. For instance when (a) a hired assassin commits

111
5.2.8 Machhi Singh thus crystallized the
applicability of the rarest of rare principle into five
distinct categories which Bachan Singh had expressly
refrained from doing. As the Supreme Court noted in
Swamy Shradhhananda, the Machhi Singh categories
"considerably enlarged the scope for imposing death
penalty"433 beyond what was envisaged in Bachan
Singh.

b. Crime Centric Focus
5.2.9 The Machhi Singh categories relate only to the
circumstances of the crime. While the Court did state
that the sentencing judge should accord full weightage
to mitigating circumstances as well, in subsequent
cases, many judges have invoked the categories in
Machhi Singh in a manner that suggest that once a case
falls within any of the 5 categories it becomes a rarest
of rare case deserving the death penalty.434 An example
murder for the sake of money or reward (2) a cold blooded murder is committed with a
deliberate design in order to inherit property or to gain control over property of a ward
or a person under the control of the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust. (c) a murder is committed in the course for
betrayal of the motherland.
III Anti Social or Socially abhorrent nature of the crime: (a) When murder of a Scheduled
Caste or minority community etc., is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when such a crime is committed
in order to terrorize such persons and frighten them into fleeing from a place or in order
to deprive them of, or make them with a view to reverse past injustices and in order to
restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder
is committed in order to remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation.
IV Magnitude of Crime: When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
V Personality of Victim of murder: When the victim of murder is (a) an innocent child
who could not have or has not provided even an excuse, much less a provocation, for
murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c)
when the victim is a person vis-a vis whom the murderer is in a position of domination
or trust (d) when the victim is a public figure generally loved and respected by the
community for the services rendered by him and the murder is committed for political
or similar reasons other than personal reasons.
433 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.
434 See example, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434, where the

Court cited the Machhi Singh factors and then held that in the present case"[t]he
enormity of the crime is writ large. The accused-appellant caused multiple murders and
attacked three witnesses. ... The brutality of the act is amplified by the manner in which
the attacks have been made on all the inmates of the house in which the helpless
victims have been murdered, which is indicative of the fact that the act was diabolic of
the superlative degree in conception and cruel in execution and does not fall within any
comprehension of the basic humanness which indicates the mindset which cannot be

112
is Devender Pal Singh v. National Capital Territory,435
where the majority opinion cited the Machhi Singh
categories and held that the circumstances of the crime
(without any discussion regarding the circumstances of
the criminal) were such as to require imposing the death
penalty. Pertinently, the dissenting judge in this case
had acquitted the accused, but this factor was not
considered by the majority in deciding whether the case
was one of "rarest of rare."
5.2.10 Machhi Singh and a subsequent line of cases
have focused only on the circumstances, nature,
manner and motive of the crime, without taking into
account the circumstances of criminal or the possibility
of reform as required under the Bachan Singh doctrine.
Machhi Singh's progeny include a large number of cases
in which the Court has decided whether or not to award
the death penalty by only examining whether the crime
is so brutal, depraved or diabolic as to "shock the
collective conscience of the community."436 As the Court
recognized in Bariyar, judges engage in "very little
objective discussion on aggravating and mitigating
circumstances. In most such cases, courts have only been
considering the brutality of crime index."437 Similarly, in
Sangeet the Court recognized that "[d]espite Bachan
Singh, primacy still seems to be given to the nature of
the crime. The circumstances of the criminal, referred
to in Bachan Singh appear to have taken a bit of a back
seat in the sentencing process."438

said to be amenable for any reformation." The nature of the crime is itself held to be an
indication that the person is beyond reformation.
435 Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234.
436 An example is Sudam @ Rahul Kaniram Jadhav v. State Of Maharashtra, (2011) 7

SCC 125, at para 22, where the accused was convicted for killing a woman and four
children. The Court noted that the crime was pre-meditated and held that the facts
show that "the crime has been committed in a beastly, extremely brutal, barbaric and
grotescue manner. It has resulted into intense and extreme indignation of the
community and shocked the collective conscience of the society. We are of the opinion
that the appellant is a menace to the society who cannot be reformed. Lesser
punishment in our opinion shall be fraught with danger as it may expose the society to
peril once again at the hands of the appellant." The Court did not mention or discuss
any mitigating circumstances.
437 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 71.
438 Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 34.

113
5.2.11 In Bariyar, the Court examined the decision
in Ravji alias Ram Chandra v. State of Rajasthan,439
where it was 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. ... The punishment to be awarded
for a crime ... should conform to and be
consistent with the atrocity and brutality with
which the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's cry for justice against the criminal."440
5.2.12 Bariyar held that the exclusive focus in Ravji
on the crime, rendered this decision per incuriam
Bachan Singh. The Court listed a further 6 cases where
Ravji had been followed, and which had therefore relied
on incorrect precedent.
5.2.13 Similarly, the Supreme Court in Khade
doubted the correctness of the imposition of the death
penalty in Dhananjoy Chatterjee v. State of West
Bengal,441 where the Court had held that "the measure
of punishment in a given case must depend upon the
atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in
which the courts respond to the society's cry for justice
against the criminals."442 In Khade the Court opined that
prima facie the judgment had not accounted for
mitigating circumstances relating to the offender.
Dhananjoy Chatterjee was executed in 2004.
5.2.14 So also, in Sangeet, the Court noted an
additional three cases where Bachan Singh's direction

439 Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175.
440 Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175., at para 124.
Held per incuriam Bachan Singh in Santosh Bariyar v. State of Maharashtra, (2009) 6
SCC 498, at para 63.
441 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220.
442 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15. The

exclusive focus of this decision on the crime and not the criminal was questioned in
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

114
to consider both aggravating and mitigating
circumstances had not been followed.443
5.2.15 Despite this recognition by the Supreme
Court that it has erred in cases where only the
circumstances of the crime, but not of the criminal have
been taken into account, judges continue to impose the
death penalty based on the former set of considerations
alone.444

c. Shock to the Collective Conscience and Society's
Cry for Justice
5.2.16 Machhi Singh also introduced into the
vocabulary of India's death penalty jurisprudence, the
notion of 'shock to the "collective conscience"445 of the
community' as the touchstone for deciding whether to
impose the death penalty or not. Similar notions like
"society's cry for justice"446 and "public abhorrence of
the crime"447 have also been invoked by the Court in
subsequent cases. Bachan Singh had expressly warned
that:
Judges should not take upon themselves the
responsibility of becoming oracles or spokesmen
of public opinion.... When Judges...take upon
443 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37; Mohd. Mannan v. State
of Bihar, (2011) 5 SCC 317.
444 See e.g., Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107; Ajitsingh

Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401.
445 Machhi Singh v. State of Punjab (1983) 3 SCC 470, at para 32.
446 Dhananjoy Chatterjee, (1994) 2 SCC 220.Jameel v. State of U.P., (2010) 12 SCC

532, State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11
SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; State of
Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan, (2005) 10
SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1; Ravji v. State of
Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of Rajasthan, (1994) 2 SCC
467;State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715; State of U.P. v.
Sattan @ Satyendra, (2009) 4 SCC 736; State of Madhya Pradesh v. Santosh Kumar,
(2006) 6 SCC 1; ShaileshJasvantbhai v. State of Gujarat, (2006) 2 SCC 359
447 Dhananjoy Chatterjee, (1994) 2 SCC 220.Jameel v. State of U.P., (2010) 12 SCC

115
themselves the responsibility of setting down
social norms of conduct, there is every danger,
despite their effort to make a rational guess of
the notions of right and wrong prevailing in the
community at large ... that they might write their
own peculiar view or personal predilection into
the law, sincerely mistaking that changeling for
what they perceive to be the Community ethic.
The perception of 'community' standards or
ethics may vary from Judge to Judge....Judges
have no divining rod to divine accurately the will
of the people.448
5.2.17 However, in Machhi Singh as well as
subsequent cases, public opinion, through the
articulation of these amorphous standards of "collective
conscience", "society's cry", and "public abhorrence",
have been given an important role to play in sentencing
jurisprudence.
5.2.18 In Bariyar, the Supreme Court has
questioned the relevance and desirability of factoring in
such "public opinion" into the rarest of rare analysis,
since firstly, it is difficult to precisely define what "public
opinion" on a given matter actually is. Further, people's
perception of crime is "neither an objective circumstance
relating to crime nor to the criminal."449 As such, this
factor is irrelevant to the rarest of rare analysis
mandated by Bachan Singh.450 Third, as Bariyar has
also pointed out, the courts are governed by the
constitutional safeguards which "introduce values of
institutional propriety, in terms of fairness,
reasonableness and equal treatment challenge with
respect to procedure to be invoked by the state in its
dealings with people in various capacities, including as a
convict."451 For example, the Court plays a counter
majoritarian role in protecting individual rights against
majoritarian impulses. Public opinion in a given case
may go against the values of rule of law and

448 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 126.
449 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 80.
450 Reiterated in Mohinder Singh v. State of Punjab, (2013) 3 SCC 294.
451 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 82.

116
constitutionalism by which the Court is nonetheless
bound.452
5.2.19 A sentencing court does not have the means
to rigorously examine public opinion in a given matter.
Also, a cohesive, coherent and consistent "public
opinion" is a fiction. The opinion of members of the
public can be capricious, and dependent upon the
(mis)information that the "public" is provided not only of
the facts of an individual case, but of the criminal justice
process itself. Focusing on public opinion therefore
carries the danger of "capital sentencing becoming a
spectacle in media. If media trial is a possibility,
sentencing by media cannot be ruled out."453 In such
situations, invoking public opinion instead of focusing
on constitutional standards and safeguards would
defeat the entire framework elaborated in Bachan
Singh.454 As one of the opinion in Rameshbhai Rathod v.
State of Gujarat455 recognized,
[The Court] cannot afford to prioritise the
sentiments of outrage about the nature of the
crimes committed over the requirement to
carefully consider whether the person committing
the crime is a threat to the society. The Court
must consider whether there is a possibility of
reform or rehabilitation of the man committing the
crime and which must be at the heart of the
sentencing process. It is only this approach that
can keep imposition of death sentence within the
'rarest of the rare cases'.456
5.2.20 In Haresh Mohandas Rajput v. State of
Maharashtra,457 the Supreme Court recognized that

452 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
453 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 87.
454 See also Aparna Chandra, A Capricious Noose, 2 JOURNAL OF NATIONAL LAW

UNIVERSITY DELHI 124 (2014) ("A court is a court of law not a court of public opinion. Of
course judges are creatures of society and will be influenced by it, but the encoding of
public opinion into the formal framework of capital sentencing gives it a prescriptive
weight that is problematic. If the opinion of the public matters to questions of
sentencing, then courts are the wrong institutions to be determining sentence.
Parliament or lynch mobs are more apposite").
455 Rameshbhai Rathod v. State of Gujarat, (2009) 5 SCC 740 (per Ganguly J).
456 Rameshbhai Rathod v. State of Gujarat, (2009) 5 SCC 740, at para 108.
457 Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56.

117
Machhi Singh's invocation of "shock to the collective
conscience of the community"458 as a standard for
evaluating whether a case deserved death, had
expanded the rarest of rare formulation beyond what
was envisaged in Bachan Singh. However, as discussed
below, despite this acknowledgment, the Court has
continued to invoke community reactions and public
opinion as a ground for awarding the death penalty.459

d. The Crime Test, the Criminal Test and the Rarest
of Rare Test
5.2.21 In a recent line of cases, the Supreme Court
has responded to the concern that capital sentencing is
"judge centric," by articulating another formulation of
the Bachan Singh doctrine. The Court has held in cases
like Gurvail Singh @ Gala v. State of Punjab, 460 that three
tests have to be satisfied before awarding the death
penalty: the crime test, meaning the aggravating
circumstances of the case; the criminal test, meaning
that there should be no mitigating circumstance
favouring the accused; and if both tests are satisfied,
then the rarest of rare cases test, "which depends on the
perception of the society and not "judge-centric", that is
whether the society will approve the awarding of death
sentence to certain types of crime or not. While applying
this test, the Court has to look into variety of factors like
society's abhorrence, extreme indignation and antipathy
to certain types of crimes..."461 Explaining this test, the
Court in Mofil Khan v. State of Jharkhand, 462 stated that
the test is to "basically examine whether the society
abhors such crimes and whether such crimes shock the

458 Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, at para 20.
459 See also, Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253
(quoting Haresh Rajput on the point that Machhi Singh had expanded the rarest of rare
doctrine beyond the Bachan Singh formulation by introducing the concept of "collective
conscience", but invoking shock to the collective conscience in imposing the death
sentence in the present case nonetheless).
460 Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713. See also Birju v. State

Of M.P., (2014) 3 SCC 421; Ashok Debbarma @ Achak Debbarma v. State Of Tripura,
(2014) 4 SCC 747; Santosh Kumar Singh v. State Of M.P, (2014) 12 SCC 650; Dharam
Deo Yadav v. State Of U.P, (2014) 5 SCC 509; Anil @ Anthony Arikswamy Joseph v.
State Of Maharashtra, (2014) 4 SCC 69. One of the opinions in Shankar Khade also
used the triple test.
461 Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, at para 19.
462 Mofil Khan v. Jharkhand, (2015) 1 SCC 67.

118
conscience of the society and attract intense and
extreme indignation of the community." 463
5.2.22 The triple test limits the possibility of the
imposition of the death penalty to that very narrow
category of cases in which there are no mitigating
circumstances whatsoever. In this, the test is in keeping
with the spirit of Bachan Singh that the death penalty
should be imposed only in the most exceptional of
circumstances.
5.2.23 However, in the triple test analysis, the
"judge centric" nature of the death penalty can be
prevented by focusing on the societal response to the
crime. This is of concern because, as Bachan Singh itself
acknowledged, and Bariyar reiterated, judges are likely
to substitute their own assumptions, values and
predilections in place of the perceptions of society,
because even if one were to assume that society has
determinate, stable and wide shared preferences on
these matters, judges have no means of determining
these preferences.
5.2.24 Further, as mentioned above, Bachan Singh
rejected the notion of categorization of types of crime
which are fit for the death penalty. However, this triple
test formulation seeks to do just that in its "Rarest of
Rare Test" which is predicated on "society's abhorrence,
extreme indignation and antipathy to certain types of
crimes." 464
5.2.25 The dissociation of the aggravating and
mitigating circumstances from the rarest of rare
analysis also moves away from the Bachan Singh
framework. In addition, the triple test formula seeks to
create distinct lists of the circumstances relating to the
crime and the circumstances relating to the criminal,
and evaluate them separately. This goes against the
Bachan Singh injunction that circumstances relating to
the crime and to the criminal cannot be treated as

463 Mofil Khan v. Jharkhand, (2015) 1 SCC 67, at para 46.
464 Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, at para 19.

119
distinct water-tight compartments.465 In fact, the
Supreme Court itself noted this concern with the triple
test in the three judge Bench decision in Mahesh
Dhanaji Shinde v. State of Maharashtra,466 and
cautioned that this triple test "may create situations
which may well go beyond what was laid down in
Bachan Singh."467 The triple test however continues to
be followed and applied by the Supreme Court itself
despite the decision in Mahesh Shinde.468
5.2.26 In departing from Bachan Singh both in
terms of the framework of analysis, and the relevant
factors to be considered (especially the consideration of
public opinion), this three pronged test appears to have
further added to the conceptual confusion around the
rarest of rare analysis.
5.2.27 The discussion above indicates that different
judges have understood the requirements of the rarest
of rare standard differently, resulting in a disparate and
"judge-centric" determination of whether or not a case
falls within the rarest of rare category. As the Court put
it in Sangeet, the Bachan Singh dictum appears to have
been "lost in translation."469 The Supreme Court in
Mohd. Farooq acknowledged the "disparity in sentencing
by [the] court flowing out of varied interpretations to the
rarest of rare expression,"470 and was concerned that
"the precedent on death penalty ... is crumbling down
under the weight of disparate interpretations."471 The
Court cautioned that without a consistent
interpretation to the test, Article 14 would stand
violated.472

465 For a critique of this test, see generally, Aparna Chandra, A Capricious Noose, 2
JOURNAL OF NATIONAL LAW UNIVERSITY DELHI 124 (2014).
466 Mahesh Dhanaji Shinde v. State Of Maharashtra, (2014) 4 SCC 292.
467 Mahesh Dhanaji Shinde v. State Of Maharashtra, (2014) 4 SCC 292, at para. 24.
468 See Ashok Debbarma @ Achak Debbarma v. State Of Tripura, (2014) 4 SCC 747;

Dharam Deo Yadav v. State Of U.P, (2014) 5 SCC 509; Lalit Kumar Yadav @ Kuri v.
State Of U.P, (2014) 11 SCC 129.
469 Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.
470 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para

165.
471 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para

165.
472 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.

120
(ii) Factors considered Aggravating and
Mitigating
5.2.28 In Bachan Singh, the Court recognized and
emphasized that each case is unique and has to be
decided on its own facts and circumstances. For this
reason, the Court refused to provide any
standardization or categorization of offences for which
the death penalty would be applicable. At the same time
however, the Court held that sentencing discretion was
not untrammelled. Rather, it endorsed the holding in
Jagmohan that "sentencing discretion is to be exercised
judicially on well-recognised principles.... crystallised by
judicial decisions illustrating as to what were regarded
as aggravating or mitigating circumstances in those
eases."473 Bachan Singh therefore directed courts to
determine whether a case is rarest of rare keeping in
mind judicial principles derived from a study of
precedents as to the kinds of factors that are
aggravating and those that are mitigating. Bachan Singh
thus endorsed the twin elements of individualized yet
principled sentencing. However, as the Supreme Court
has since recognized and the cases below demonstrate,
"although the court ordinarily would look to the
precedents, but, this becomes extremely difficult, if not
impossible, .... [since] [t]here is no uniformity of
precedents, to say the least."474

a. Non-Consideration of Aggravating and Mitigating
Circumstances
5.2.29 In State of U.P. v. Satish,475 the accused was
convicted for committing the rape and murder of a
minor. On the question of sentence, the Court, after
surveying decisions which have laid down principles
regarding the imposition of the death penalty, stated
that it had "no hesitation in holding that the case at hand
falls in rarest of rare category and death sentence
awarded by the trial Court was appropriate."476 The

473 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 197.
474 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 104.
475 State of U.P. v. Satish, (2005) 3 SCC 114.
476 State of U.P. v. Satish, (2005) 3 SCC 114.

121
judgment is completely silent on the aggravating and
mitigating circumstances of the case, contains no
discussion whatsoever on why the case at hand
deserved the imposition of death.
5.2.30 This is not an isolated instance. Many cases
subsequent to Bachan Singh, for example, Lok Pal Singh
v. State of MP,477 Darshan Singh v. State of Punjab,478
and Ranjeet Singh v. State of Rajasthan,479 have upheld
the death sentence without referring to the "rarest of
rare" formulation at all. In some other cases, such as
Mukund v. State of MP,480 Ashok Kumar Pandey v. State
of Delhi,481 Farooq v. State of Kerala,482 and
Acharaparambath Pradeepan v. State of Kerala, 483 to
name a few, the Court referred to the "rarest of rare"
dicta, but did not apply it in imposing/commuting the
death sentence, thereby paying mere lip service to the
"rarest of the rare" test.

b. Age as a Mitigating Factor
5.2.31 Bachan Singh had recognized that the young
age of the offender is a relevant mitigating circumstance
which should be given great weightage in the
determination of sentence. The Court has repeatedly
held that if the offender committed the crime at a young
age, the possibility of reforming the offender cannot be
ruled out. For example, in Ramnaresh v. State of
Chhattisgarh,484 involving a gang rape and murder, the
Court imposed a life sentence taking into account the
young age of the convicts (all between 21-30 years of
age), which pointed to the possibility of reform.
Similarly, in Ramesh v. State of Rajasthan,485 a case
involving a double murder for gain, the Court imposed
a life sentence by holding that the young age of the
convict was a mitigating factor since he could be
477 Lok Pal Singh v. State of M.P., A.I.R. 1985 SC 891.
478 Darshan Singh v. State of Punjab, (1988) 1 SCC 618.
479 Ranjeet Singh v. State of Rajasthan, (1980) 1 SCC 683.
480 Mukund v. State of M.P., (1997) 10 SCC 130.
481 Ashok Kumar Pandey v. State of Delhi, (2002) 4 SCC 76.
482 Farooq v. State of Kerala, (2002) 4 SCC 697.
483 Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643.
484 Ramnaresh and Ors. v. State of Chhattisgarh, (2012) 4 SCC 257.
485 Ramesh v. State of Rajasthan, (2011) 3 SCC 685.

122
reformed. In Surendra Mahto v. State of Bihar,486 the
primary mitigating factor considered by the Court in
imposing the life sentence was that the offender was
only 30 years old and hence could be reformed.
5.2.32 However, age as a mitigating factor has been
used very inconsistently. In the dissent in Bachan Singh
itself, Justice Bhagwati had cited multiple examples of
otherwise similar cases where the young age of the
offender was or was not considered the basis for
imposing a life sentence instead of death. This trend of
inconsistency in considering the age of the accused as
a mitigating factor continues post-Bachan Singh.
5.2.33 To take one example, in Dhananjoy
Chatterjee v. State of West Bengal,487 the Supreme Court
had imposed the death sentence on the offender for
committing the rape and murder of an 18 year old
woman who lived in a building where he was a security
guard. This case was noticed in Rameshbhai
Chandubhai Rathod (2) v. State of Gujarat,488 which
according to the Court's own assessment involved
similar facts except that the rape and murder in this
case was that of a child. On reference to a larger Bench
because the two judge Bench could not agree on the
sentence, the three-judge Bench of the Court noted the
similarity of the facts to Dhananjoy Chatterjee's case,
but held that offender's age was only 28 years which left
open the possibility of reform, and hence imposed the
life sentence. Therefore in an admittedly similar fact
situation Rameshbhai Rathod was given the life
imprisonment because he was 28 years old. Dhananjoy
Chatterjee was given the death sentence and was
executed in 2004. He was 27 years old.
5.2.34 Purushottam Dashrath Borate v. State of
Maharashtra,489 a very recent case decided by the
Supreme Court in May this year, involved a similar fact
situation of rape and murder. The Court again pointed

486 Surendra Mahto v. State of Bihar, Criminal Appeal No. 211/2009.
487 Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
488 Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764.
489 Purushottam Dashrath Borate v. State of Maharashtra, A.I.R. 2015 SC 2170.

123
to the similarity of the case to that of Dhananjoy
Chatterjee, and following Dhananjoy Chatterjee, it
imposed the death penalty on both the offenders. The
Court did not refer to the decision in Rameshbhai
Rathod; nor to the decision in Shankar Khade which had
doubted the imposition of the death penalty in
Dhananjoy Chatterjee on the ground that the Court had
not accounted for mitigating factors. The age of the
offenders in Purushottam Dashrath Borate was 26 years
and 20 years respectively.490
5.2.35 The Supreme Court in Shankar Khade
pointed to the inconsistent use of age as a mitigating
factor in otherwise similar cases of rape and murder. On
the one hand the offenders in Amit v. State of
Maharashtra,491 (aged about 20 years), Rahul v. State of
Maharashtra,492 (aged 24 years), Santosh Kumar Singh
v. State,493 (aged 24 years), Rameshbhai Chandubhai
Rathod (2) v. State of Gujarat,494 (aged 28 years),
and Amit v. State of Uttar Pradesh,495 (aged 28 years),
were not given the death sentence since their age was
considered a mitigating factor, on the other in
Dhananjoy Chatterjee,496 (aged 27 years), Jai Kumar v.
State of Madhya Pradesh,497 (aged 22 years), and Shivu
& Anr. v. Registrar General, High Court of Karnataka,498
(aged about 20 and 22 years), the young age of the
accused was either not considered or was deemed
irrelevant.

c. Nature of offence as an Aggravating Factor
5.2.36 Since the death penalty is to be awarded only
in the rarest of rare cases, Bariyar required judges to

490 The age of the accused is taken from the High Court judgment in this case. See
State of Maharashtra v. Purushottam Dashrath Borate, Criminal Appeal No.
632/2012(Bom), 25.09.2012.
491 Amit v. State of Maharashtra, (2003) 8 SCC 93.
492 Rahul v. State of Maharashtra, (2005) 10 SCC 322.
493 Santosh Kumar Singh v. State, (2010) 9 SCC 747.
494 Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764.
495 Amit v. State of Uttar Pradesh, (2012) 4 SCC 107.
496 Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
497 Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1.
498 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713.

124
survey a pool of similar cases to determine whether the
case before them was rarest of rare or not.
5.2.37 Recently, in Shankar Khade, the Supreme
Court again alluded to the need for evidence based
death sentencing, and was concerned that the rarest of
rare formulation is unworkable unless empirical
evidence is made available which allows the Court to
evaluate whether that a particular case is "rarer" than a
comparative pool of rare cases. In the absence of this
data, the Court felt that the application of the rarest of
rare formulation becomes "extremely delicate" and
"subjective."499 However, as the Court realised in this
case, while surveying a pool of cases relating to rape and
murder, the rape and murder of a young child shocks
the judicial conscience in some cases, not in others.
5.2.38 So, for example, on the one hand the Court
has held that the rape and murder of a one and half year
old child in one case,500 of a 6 year old child in
another,501 and 10 year old child in a third,502 would not
attract the death penalty because though these crimes
were heinous, the offenders were not a danger to society,
and the possibility of reform was not closed. On the
other hand, in another series of cases, the Court has
held that the rape and murder of a 5 year old,503 a 6
year old,504 or a 7 year old,505 or a 9 year old,506 were
by their very nature extremely brutal, depraved,
heinous and gruesome, and were thus deserving of the
ultimate penalty. So for example, in Jumman Khan v.
State of UP,507 involving the rape and murder of a 6 year
old, the Court held that "[t]he only punishment which the
appellant deserves for having committed the
reprehensible and gruesome murder of the innocent child
to satisfy his lust, is nothing but death as a measure of

499 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713, at paras 2-
3.
500 Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28.
501 Bantu v. State of M.P., (2001) 9 SCC 615.
502 Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56.
503 Bantu v. State of U.P., (2008) 11 SCC 113.
504 Jumman Khan v. State of U.P., (1991) 1 SCC 752.
505 Kamta Tiwari v. State of M.P., (1996) 6 SCC 250.
506 Shivaji @Dadya Shankar Alhat v. The State of Maharashtra, (2008) 15 SCC 269.
507 Jumman Khan v. State of U.P., (1991) 1 SCC 752.

125
social necessity and also as a means of deterring other
potential offenders."508
5.2.39 Similarly, in Md. Mannan @ Abdul Mannan v.
State of Bihar,509 the convict had kidnapped, raped and
murdered a seven year old. The Court awarded the
death penalty since the victim was an "innocent,
helpless and defenceless child."510 The Court held that
the crime "had invited extreme indignation of the
community and shocked the collective conscience of the
society. Their expectation from the authority conferred
with the power to adjudicate, is to inflict the death
sentence which is natural and logical."511 With respect,
given the contrary line of cases above, it is not clear from
this judgment why in this case, but not in the ones
mentioned above, the collective conscience of the society
had been so shocked as to invite the punishment of
death. The inconsistencies highlighted here, and
noticed by the Court itself in Khade, make the infliction
of the death penalty in this case anything but "natural
and logical."512
5.2.40 These inconsistencies have moved the
Supreme Court to itself acknowledge that "there is a
very thin line on facts which separates the award of a
capital sentence from a life sentence in the case of rape
and murder of a young child by a young man and the
subjective opinion of individual Judges as to the
morality, efficacy or otherwise of a death sentence cannot
entirely be ruled out."513
5.2.41 Similarly, compare the cases of State of
Maharashtra v. Damu514 against Sushil Murmu v. State
of Jharkhand.515 In the former, the accused were
convicted of murdering three children as human
sacrifice for recovering hidden treasure. The Court did
not impose the death penalty on them even though it
508 Jumman Khan v. State of U.P., (1991) 1 SCC 752, at para 4.
509 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65.
510 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18.
511 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18.
512 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18.
513 Rameshbhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764, at para 8.
514 State of Maharashtra v. Damu, (2000) 6 SCC 269.
515 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338.

126
held that "the horrendous acts" made it "an extremely
rare case."516 Nevertheless, the Court imposed life
imprisonment on the reasoning that the crime was
motivated by ignorance and superstition, which were
considered to be mitigating circumstances. As against
this, in Sushil Murmu, where the accused was convicted
for murdering one child as human sacrifice, the Court
held that given the nature of the crime, the accused
"was not possessed of the basic humanness and he
completely lacks the psyche or mind set which can be
amenable for any reformation to be beyond reform."517
Stating that the crime "borders on a crime against
humanity indicative of greatest depravity shocking the
conscience of not only any right thinking person but of the
Courts of law, as well,"518 the Court refused to consider
the superstitious motivation as a mitigating factor.
Instead it held that "[n]o amount of superstitious colour
can wash away the sin and offence of an unprovoked
killing, more so in the case of an innocent and
defenceless child."519 For the Court, a case of this sort
"is an illustrative and most exemplary case to be treated
as the 'rarest of rare cases' in which death sentence is
and should be the rule, with no exception
whatsoever."520 Therefore, in similar circumstances,
while in one case the Court found the murder of three
children for human sacrifice to not call for the
imposition of the death penalty, in another case it found
the murder of one child for similar reasons to require
the imposition of the death penalty as a rule.

d. Prior Criminal Record of the Offender as an
Aggravating Factor
5.2.42 While the Court has often taken into account
the prior criminal record of the offender in determining
whether the person is capable of reform, the Supreme
Court in Sangeet and Shankar Khade pointed to
instances where the Court had taken into account cases

516 State of Maharashtra v. Damu, (2000) 6 SCC 269, at para 47.
517 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22.
518 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22.
519 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22.
520 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23.

127
that were merely pending before the courts, and had not
been finally decided.521 Holding that basing the decision
to impose the death penalty on such pending cases
would amount to a negation of the principle of
presumption of innocence, the Supreme Court admitted
that these decisions were erroneous.522
5.2.43 One such case was Sushil Murmu v. State of
Jharkhand,523 where the offence involved murder for the
purposes of human sacrifice. In imposing the death
sentence, the Court took into account the "[c]riminal
propensities of the accused [which] are clearly spelt out
from the fact that similar accusations involving human
sacrifice existed at the time of trial."524 Though the Court
recognized that the result of the accusations against
him were not brought on record, and therefore it was
not clear whether the accusations resulted in a
conviction, the Court held that "the fact that similar
accusation was made against the accused-appellant for
which he was facing trial cannot also be lost sight of."525
On this basis, the Court imposed the death sentence on
the accused.
5.2.44 Similarly, in B.A. Umesh v. Registrar
General, High Court of Karnataka,526 where the accused
was convicted for rape, murder and robbery, the
Supreme Court imposed the death sentence on him,
inter alia, on the ground that he had engaged in similar
conduct previously, and had been caught two days after
the present incident, trying to commit a similar crime.
The Court held that "the antecedents of the appellant
and his subsequent conduct indicates that he is a
menace to society and is incapable of rehabilitation."527
As noted by the Supreme Court itself in Sangeet, the

521 B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85; Sushil
Murmu v. State of Jharkhand, (2004) 2 SCC 338; Shivu v. Registrar General, High
Court of Karnataka, (2007) 4 SCC 713. See also, Gurmukh Singh v. State of Haryana,
(2009) 15 SCC 635.
522 Sangeet v. State of Haryana, (2013) 2 SCC 452.
523 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338.
524 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23.
525 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23.
526 B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85.
527 B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85, at

para 84.

128
allegations against Umesh of having committed other
offences was never proved or brought on record.528
Despite this, a review petition against this decision was
dismissed by the Court, again referencing the allegation
that "far from showing any remorse, he was caught
within two days of the incident by the local public while
committing an offence of a similar type in the house of
one Seeba."529
5.2.45 So while on the one hand, in one line of cases
the court has taken into account cases pending (but not
decided) against the accused, in another line of cases,
which includes Sangeet, as well as Mohd. Farooq Abdul
Gafur v. State of Maharashtra,530 the Court has held that
unless a person is proven guilty in a case, it should not
be counted as an aggravating factor against him.

e. The Possibility of Reform
5.2.46 In Bachan Singh the Supreme Court required
that the death penalty should be imposed only in those
exceptional, rarest of rare cases where the "alternative
option is unquestionably foreclosed."531 The Supreme
Court recognized in Bariyar, that under the Bachan
Singh framework, the option of life is "unquestionably
foreclosed" and "completely futile, only when the
sentencing aim of reformation can be said to be
unachievable." 532
5.2.47 Bachan Singh relied on the pre-sentence
hearing requirement in Section 235(2), Cr. P. C. to
provide the information necessary for courts to
determine what mitigating circumstances, if any, were
present in the case, and what, therefore, the
appropriate punishment in the case would be.
According to the Court,

528 Sangeet v. State of Haryana, (2013) 2 SCC 452.
529 B.A. Umesh v. Registrar General, High Court of Karnataka, Review Petition (Crl.)
No (S).135-136 of 2011 in Crl. Appeal Nos.285-286 of 2011.
530 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
531 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
532 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 66; Mohinder

Singh v. State of Punjab, (2013) 3 SCC 294, at para 23.

129
Section 235(2) provides for a bifurcated trial and
specifically gives the accused person a right of
pre-sentence hearing, at which stage, he can
bring on record material or evidence, which may
not be strictly relevant to or connected with the
particular crime under inquiry, but
nevertheless, have, consistently with the policy
underlined in Section 354(3), a bearing on the
choice of sentence. The present legislative policy
discernible from Section 235(2) read
with Section 354(3) is that in fixing the degree
of punishment or making the choice of sentence
for various offences, including one
under Section 302, 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.533
5.2.48 Thus, in Bachan Singh, central to the rarest
of rare formulation is the assessment of the offender's
possibility of reform, which is to be determined through
a distinct pre-sentence proceeding where evidence is to
be led on the issue.
5.2.49 Drawing upon the Bachan Singh endorsed
standard that the state has to lead evidence to show
that the convict cannot be reformed or rehabilitated and
thus constitutes a continuing threat to society,534
Bariyar held that, "the court will have to provide clear
evidence as to why the convict is not fit for any kind of

533 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209. See also Allauddin
Mian v. State of Bihar, (1989) 3 SCC 5, ( "All trial courts, after pronouncing an accused
guilty, must adjourn the hearing on quantum of sentence to another day to enable both
the convict and the prosecution to present material in support of the quantum of
sentence").
534 In Bachan Singh, the Court endorsed the following standards:

(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State
shall by evidence prove that the accused does not satisfy the conditions (3)
and (4) above.

130
reformatory and rehabilitation scheme."535 Such an
evidence based account of the possibility of reform was
deemed essential by the Court for introducing an
element of objectivity into the sentencing process.536
5.2.50 The requirement that the state should justify,
not only through arguments, but through evidence, that
the exceptional penalty of death is the only option in the
case, has been reiterated by the Court in Shankar
Khade. However, Bariyar has rarely been followed,
which is itself a testament to the capricious nature of
the death penalty jurisprudence in India.537 Recently, in
Shankar Khade, Anil @ Anthony Arikswamy Joseph v.
State of Maharashtra,538 and Birju v. State of M.P,539
amongst others, the Court has again reiterated the need
for evidence based assessment of the possibility of
reformation of the offender. However, as these cases
have also noted, "[m]any-a-times, while determining the
sentence, the Courts take it for granted, looking into the
facts of a particular case, that the accused would be a
menace to the society and there is no possibility of
reformation and rehabilitation..."540
5.2.51 An example is Mohd. Mannan v. State,541
where the accused was convicted for rape and murder.
The Court in this case opined that the accused is "a
menace to the society and shall continue to be so and he
cannot be reformed."542 Noticing this case in Sangeet,
the Supreme Court noted that the judgment did not
indicate any material on the basis of which the Court
concluded that the criminal was a menace to society
and "shall continue to be so and he cannot be
reformed."543 It appeared that the only factor upon

535 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 66.
536 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
537 See Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 at para

46 (listing out cases where no evidence was led on whether the possibility of
reformation was "unquestionably foreclosed").
538Anil @ Anthony Arikswamy Joseph v. State Of Maharashtra, (2014) 4 SCC 69
539 Birju v. State Of M.P., (2014) 3 SCC 421.
540 Anil @ Anthony Arikswamy Joseph v. State Of Maharashtra, (2014) 4 SCC 69, at

para 33; Birju v. State Of M.P., (2014) 3 SCC 421.
541 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65.
542 Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18.
543 Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 38.

131
which the Court had based this conclusion was the
nature of the crime. However, as noted in Shankar
Khade, in otherwise similar facts, the Court has come
to differing conclusions on whether the accused was
capable of reform. Therefore, while on the one hand the
possibility of reformation or rehabilitation was ruled
out, without any expert evidence, in Jai Kumar v. State
of Madhya Pradesh,544 B.A. Umesh v. Registrar General,
High Court of Karnataka545 and Mohd. Mannan v. State
of Bihar,546 on the other hand, again without any expert
evidence, the benefit of this possibility was given in
Nirmal Singh v. State of Haryana,547 Mohd. Chaman v.
State (NCT of Delhi),548 Raju v. State of Haryana,549
Bantu v. State of Madhya Pradesh,550 Surendra Pal
Shivbalakpal v. State Gujarat,551 Rahul v. State of
Maharashtra,552 and Amit v. State of Uttar Pradesh.553

(iii) Rules of Prudence
5.2.52 The Supreme Court, in Mohd. Farooq v. State
of Maharashtra,554 discussed certain "rules of prudence"
to be followed in death penalty adjudication, to address
the concern of the potential fallibility of the system. The
Court held that:
In this particular punishment, there is heavy
burden on court to meet the procedural justice
requirements, both emerging from the black
letter law as also conventions. In terms of rule
of prudence and from the point of view of
principle, a court may choose to give primacy to
life imprisonment over death penalty in cases
which are solely based on circumstantial

544 Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1.
545 B.A. Umesh v. Registrar General, High Court of Karnataka., (2011) 3 SCC 85.
546 Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317.
547 Nirmal Singh v. State of Haryana, (1999) 3 SCC 670.
548 Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28.
549 Raju v. State of Haryana, (2001) 9 SCC 50.
550 Bantu v. State of M.P., (2001) 9 SCC 615.
551 Surendra Pal Shivbalakpal v. State Gujarat, (2005) 3 SCC 127.
552 Rahul v. State of Maharashtra, (2005) 10 SCC 322.
553 Amit v. State of Uttar Pradesh, (2012) 4 SCC 107.
554 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.

132
evidence or where high court has given a life
imprisonment or acquittal.555
5.2.53 Keeping in mind the distinct nature of the
death penalty the Court therefore cautioned that it
would be prudent to avoid imposing the death penalty
in cases based on circumstantial evidence on the one
hand, and those where lower courts have imposed a life
imprisonment or have acquitted on the other. However,
similar to the cases discussed above, there is little
consistency in following these rules of prudence.

a. Circumstantial evidence
5.2.54 Concerned with the potential fallibility of
convictions based only upon circumstantial evidence,
and cognizant of the fact that the death penalty is
irreversible, the Court has, in various cases cautioned
that the death penalty should ordinarily be avoided
when the conviction is based solely upon circumstantial
evidence. Citing the principle that "more serious the
offence, stricter the degree of proof,"556 the Court has
held that cases based on circumstantial evidence
have far greater chances of turning out to be
wrongful convictions, later on, in comparison to
ones which are based on fitter sources of proof.
[C]onvictions based on 'seemingly conclusive
circumstantial evidence' should not be
presumed as foolproof incidences and the fact
that the same are based on circumstantial
evidence must be a definite factor at the
sentencing stage deliberations, considering
that capital punishment is unique in its total
irrevocability. [A]ny characteristic of trial, such
as conviction solely resting on circumstantial
evidence, which contributes to the uncertainty
in the "culpability calculus", must attract

555 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para
164.
556 Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377; Sharad

Bhirdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Kashmira Singh v. State
of M.P., AIR 1952 SC 159.

133
negative attention while deciding maximum
penalty for murder. 557
5.2.55 Therefore, in cases like Sahdeo v. State of
U.P., 558 Sheikh Ishaqe v. State of Bihar,559 Aloke Nath
Dutta v. State of West Bengal,560 Swamy Shraddananda
(2),561 and Bishnu Prasad Sinha v. State of Assam,562 the
Court did not impose the death penalty, inter alia, on
the consideration that the conviction was based on
circumstantial evidence.
5.2.56 However, despite this caution, in a contrary
line of cases the Court has expressly refused to consider
circumstantial evidence as a ground for not imposing
the death penalty. As noticed by the Supreme Court in
Shankar Khade, in cases like Shivaji v. State of
Maharashtra,563 Kamta Tewari v. State of M.P.,564 and
Molai v. State of M.P.565 this Court categorically rejected
the view that death sentence cannot be awarded in a
case where the evidence is circumstantial and has held
that "[i]n the balance sheet of [aggravating and
mitigating] circumstances, the fact that the case rests on
circumstantial evidence has no role to play."566

b. Disagreement on guilt or sentence between judges
5.2.57 The rarest of rare doctrine provides a very
narrow margin for the imposition of the death penalty,
limited only to the most exceptional of cases. Given this
extremely narrow exception, it would be expected that
the judges of the various courts who have heard the
case, would show a degree of unanimity regarding
whether or not the case belongs to the rarest of rare

557 Kalu Khan v. State of Rajasthan, Criminal Appeal 1891-1892/2014 dated
10.03.2015.
558 Sahdeo v. State of U.P, (2004) 10 SCC 682.
559 Sheikh Ishaqe v. State of Bihar, (1995) 3 SCC 392.
560 Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230.
561 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.
562 Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467.
563 Shivaji v. State of Maharashtra, (2008) 15 SCC 269.
564 Kamta Tiwari v. State of M.P., (1996) 6 SCC 250
565 Molai v. State of M.P., (1999) 9 SCC 581.
566 Shivaji v. State of Maharashtra, (2008) 15 SCC 269, at para 27.

134
category.567 Further, given the irreversible nature of the
death penalty, if a judge has doubts about the very guilt
of the accused, this by itself should be a ground for not
imposing the death penalty.568
5.2.58 The Supreme Court endorsed this view in
Mohd. Farooq and held that in order to remove disparity
and bring about a degree of uniformity in the application
of the death penalty, the "consensus approach"569
should be adopted, whereby the death penalty should
be imposed only if there is unanimity vertically across
the various tiers of the court system, as well as
horizontally across Benches.
5.2.59 However, as in the cases mentioned in the
previous sections, on this point too, there exists a
considerable diversity of precedent. Take for instance
the cases of State of Uttar Pradesh v. Satish,570 on the
one hand, and State of Maharashtra v. Suresh,571 on the
other. In the former, the accused was charged with the
rape and murder of a six year old, and was convicted
and sentenced to death by the Trial Court but acquitted
by the High Court. The Supreme Court restored the
order of the Trial Court and imposed the death sentence
on the basis of the brutal and depraved nature of the
crime, without taking into account the doubt regarding
the guilt of the accused by the High Court. Suresh on
the other hand, also involved the rape and murder of a
four year old. Here too, the Trial Court had imposed the
death penalty but the High Court had acquitted. The
Supreme Court restored the order of conviction of the
567 This view was espoused by Justice Thomas in his minority opinion in Suthendraraja
alias Suthenthira Raja alias Santhan v. State, (1999) 9 SCC 323 ("In my opinion, it
would be a sound proposition to make a precedent that when one of the three Judges
refrains from awarding death penalty to an accused on stated reasons in preference to
the sentence of life imprisonment that fact can be regarded sufficient to treat the case
as not falling within the narrowed ambit of "rarest of rare cases when the alternative
option is unquestionably foreclosed.")
568 This view has been endorsed, though less categorically in Mohd. Farooq Abdul

Gafur v. State of Maharashtra, (2010) 14 SCC 641, and Lichhamadevi v. State of
Rajasthan, (1988) 4 SCC 456 ("Where there are two opinions as to the guilt of the
accused, by the two courts, ordinarily the proper sentence would be not death but
imprisonment for life").
569 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para

165.
570 State of U.P. v. Satish, (2005) 3 SCC 114.
571 State of Maharashtra v. Suresh, (2000) 1 SCC 471.

135
Trial Court, and was inclined to impose the death
penalty, but held that "as the accused was once
acquitted by the High Court we refrain from imposing that
extreme penalty in spite of the fact that this case is
perilously near the region of `rarest of rare' cases." 572
5.2.60 Similarly, while in Licchamadevi v. State of
Rajasthan,573 State of U.P. v. Babu Ram,574 State of
Maharashtra v. Damu,575 State of Maharashtra v. Bharat
Fakira Dhiwar,576 State of Tamil Nadu v. Suresh,577 and
Santosh Kumar Singh v. State,578 the Supreme Court
refused to impose the death penalty since a lower court
had acquitted the accused; on the other hand, in State
of Rajasthan v. Kheraj Ram,579 Devender Pal Singh v.
State, N.C.T. of Delhi,580 and Krishna Mochi v. State of
Bihar,581 despite judges having disagreed on the guilt of
the accused, the death penalty was awarded. In
Devender Pal Singh v. State, N.C.T. of Delhi,582 and
Krishna Mochi v. State of Bihar,583 the dissent on the
question of guilt was by the senior most judge of the
Supreme Court itself.
5.2.61 Similar concerns arise in cases like B.A.
Umesh v. Registrar General, High Court of Karnataka,584
Ankush Maruti Shinde v. State of Maharashtra,585 Ram
Deo Chauhan @ Raj Nath Chauhan v. State of Assam,586
and of three appellants in Krishna Mochi v. State of
Bihar,587 where judges across the tiers and Benches had
agreed on the guilt of the offenders, but not on whether
the case belonged to the rarest of rare category. Despite
this disagreement, the Supreme Court imposed the
572 State of Maharashtra v. Suresh, (2000) 1 SCC 471, at para 29.
573 Lichhamadevi v. State of Rajasthan, (1988) 4 SCC 456
574 State of U.P. v. Babu Ram, (2000) 4 SCC 515.
575 State of Maharashtra v. Damu, (2000) 6 SCC 269.
576 State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622.
577 State of Tamil Nadu v. Suresh, (1998) 2 SCC 372.
578 Santosh Kumar Singh v. State, (2010) 9 SCC 747.
579 State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224.
580 Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234.
581 Krishna Mochi v. State of Bihar, (2002) 6 SCC 81.
582 Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234.
583 Krishna Mochi v. State of Bihar, (2002) 6 SCC 81.
584 B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85.
585 Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667.
586 Ram Deo Chauhan @ Raj Nath Chauhan v. State of Assam, (2000) 7 SCC 455.
587 Krishna Mochi v. State of Bihar, (2002) 6 SCC 81.

136
death penalty. In Ram Deo Chauhan, where one
Supreme Court judge had himself imposed life
imprisonment on the ground of the extreme young age
of the accused, a judge in the majority held that this
may be a ground for the offender to seek commutation
from the executive, but would not affect the imposition
of the death penalty by the Court. Similarly, in Krishna
Mochi, where the senior most judge on the Bench had
acquitted on appellant and imposed life imprisonment
on three, all four were given the death sentence by
majority. Contrast these cases with Mayakaur
Baldevsingh Sardar v. State of Maharashtra,588 where,
while the Court found that the case met the rarest of
rare standard, it refused to impose the death penalty
only because the High Court had imposed life
imprisonment on the accused.
5.2.62 Additional concerns arise in those cases
where the Supreme Court is the first court to impose the
death sentence. In 1984, the United Nations Economic
and Social Council adopted certain Safeguards
Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, 589 which was endorsed by consensus
by the UN General Assembly. According to these
Safeguards "[a]nyone sentenced to death shall have the
right to appeal to a court of higher jurisdiction, and steps
should be taken to ensure that such appeals shall
become mandatory."590
5.2.63 Under India's international obligations,
therefore a person sentenced to death has a right to
appeal the imposition of the death sentence, and the
state has an obligation to provide such an appellate
forum. However, where the death penalty is imposed for
the first time at the level of the Supreme Court, this
right is negated. Take for example, the case of Simon v.
State of Karnataka.591 In this case, 4 persons were
convicted for capital offences. The case was tried by the
TADA court, and the first and only appeal lay before the

588 (2007) 12 SCC 654.
589 Resolution 1984/50 of 25 May 1984.
590 Resolution 1984/50 of 25 May 1984.
591 Simon v. State of Karnataka, (2004) 1 SCC 74.

137
Supreme Court. The TADA Court convicted the accused
and sentenced them to life imprisonment. The convicts
appealed the decision to the Supreme Court. No appeal
was filed either by the State or the victims for the
enhancement of sentence. However, the Supreme Court
suo motu enhanced the sentence of the 4 appellants to
death. The Supreme Court was therefore the first and
only court to impose the death penalty. The offenders
had no forum available to them for appealing the
decision. It is noted in this regard that the Commission,
in its 187th Report, had recommended that, "where in
case the Supreme Court thinks that the acquittal is wrong
and the accused should be convicted and sentence to
death; or it thinks that the sentence for a term or life
sentence is to be enhanced to a death sentence, then the
Supreme Court may direct the case to be placed before
the Hon'ble Chief Justice of India for being heard by a
Bench of at least five judges. This also requires the
Supreme Court's rules to be amended."592 However, this
recommendation has not been implemented.
5.2.64 Another concern regarding disparate
treatment in similar fact situations arises in cases
where co-accused, who are accused of having played the
same role in the offence, are given differing treatment.
For example, the same FIR that was the basis of the
conviction and death sentence to the accused in Krishna
Mochi, also named Vyas Ram and ascribed the same role
to him.593 His case was tried separately. Before the
Supreme Court, the judges relied on facts from the
Krishna Mochi judgment to convict the accused.
However, noting that in Krishna Mochi there had been a
dissent on the question of the guilt of one accused, and
the appropriateness of awarding the death sentence for
the other three accused, the Court in Vyas Ram refused
to impose the death penalty. Therefore though Krishna
Mochi and two of his co-accused were given the death
sentence despite a dissenting judgment in their favour,

592 Law Commission of India, 187th Report, 2013, Ministry of Law, Government of India,
at page 62, available at http://lawcommissionofindia.nic.in/reports/187th%20report.pdf,
visited on 25.8.2015.
593 Vyas Ram v. State of Bihar, 2013 (12) SCC 349.

138
Vyas Ram was given a life imprisonment on the basis of
that very judgment.
5.2.65 These cases echo another case highlighted by
Justice Bhagwati in his dissent in Bachan Singh as an
"example of freakishness in imposition of death
penalty."594 In Harbans Singh v. State of U.P.,595
involved three accused - Jeeta Singh, Kashmira Singh
and Harbans Singh. All three were sentenced to death
by the Allahabad High Court for playing an equal part
in the murder of a family of four. Each person preferred
a separate appeal to the Supreme Court. The special
leave petition of Jeeta Singh came up before one Bench
and it was dismissed. He was executed. Kashmira
Singh's special leave petition was placed before a
different Bench. He was granted leave, and
subsequently his sentence was commuted to one for life.
Harbans Singh's special leave petition came up before
yet another Bench. Leave was rejected and a review
petition was also dismissed. Harbans Singh was to be
executed along with Jeeta Singh. However, he filed a
writ petition before the Supreme Court and a stay on his
execution was ordered. When the writ petition was
heard, the Bench came to know about Kahsmira Singh's
commutation. According to Justice Bhagwati in Bachan
Singh,
[t]his is a classic case which illustrates the
judicial vagaries in the imposition of death
penalty and demonstrates vividly, in all its
cruel and stark reality, how the infliction of
death penalty is influenced by the composition
of the Bench. ... The question may well be
asked by the accused: Am I to live or die
depending upon the way in which the Benches
are constituted from time to time? Is that not
clearly violative of the fundamental guarantees
enshrined in Articles 14 and 21?596

594 Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 71.
595 Harbans Singh v. State of U.P., (1982) 2 SCC 101.
596 Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 71.

139
(iv) Empirical Data on the Imposition of the
Death Penalty

a. Rates of Imposition of the Death Penalty
5.2.66 Data presented at the National Consultation
and submitted to the Law Commission in response to
the public consultation, substantiate the picture of
inconsistent, arbitrary and judge centric application of
the death penalty.
5.2.67 Data gathered by the National Crimes Record
Bureau on death sentences indicates that in the period
between 2000 and 2012, 1677 death sentences were
imposed by Indian courts. As was mentioned in the
National Consultation by some participants this implies
that India sends on average 129 persons to death row
every year, or roughly one person every third day. In
Khade, the Supreme Court, took note of these figures
and stated that this number was alarmingly high and
appeared to suggest that the death penalty is being
applied much more widely than was envisaged by
Bachan Singh.597
5.2.68 Juxtaposing the NCRB data on death
sentences imposed against the overall convictions for
murder in the same time period provides another useful,
albeit approximate, insight.598 This data shows that
during the period 2004-2012, convictions were recorded
by courts in 180439 cases involving murder. In the
same time period, the death sentence was imposed in
1178 cases, that is, in 0.65% of the cases involving
murder convictions. In absolute numbers this is a large
figure, as recognized by the Supreme Court in Khade.
In addition, given the arbitrariness and inconsistency in
597 [T]he number of death sentences awarded ... is rather high, making it unclear
whether death penalty is really being awarded only in the rarest of rare cases. -
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
598 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in

the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013)
[forthcoming 2015] (on file). The numbers only provide an approximate insight because
while the conviction rates are for murder, the death sentence figures may take into
account sentences imposed for non-murder capital offences. Since, there are very few
capital sentences imposed in offences that do not involve murder as well, the variation,
if any, between this approximation and the actual number of murder related death
sentences will be negligible.

140
the imposition of the death penalty, the question posed
by the Supreme Court in Shraddananda (2),599 bears
repeating:
[I]f in similar cases or in cases of murder of a far
more revolting nature the culprits escaped the
death sentence or in some cases were even able
to escape the criminal justice system altogether
it would be highly unreasonable and unjust to
pick on the condemned person and confirm the
death penalty awarded to him/her by the courts
below simply because he/she happens to be
before the Court. But to look at a case in this
perspective this Court has hardly any field of
comparison. The court is in a position to judge
'the rarest of rare cases' or an 'exceptional case'
or an 'extreme case' only among those cases that
come to it with the sentence of death awarded by
the trial court and confirmed by the High Court.
All those cases that may qualify as the rarest of
rare cases and which may warrant death
sentence but in which death penalty is actually
not given due to an error of judgment by the trial
court or the High Court automatically fall out of
the field of comparison. More important are the
cases of murder of the worst kind, and their
number is by no means small, in which the
culprits, though identifiable, manage to escape
any punishment or are let off very lightly. Those
cases never come up for comparison with the
cases this Court might be dealing with for
confirmation of death sentence. To say this is
because our Criminal justice System, of which
the court is only a part, does not work with a
hundred percent efficiency or anywhere near it,
is not to say something remarkably new or
original. But the point is, this Court, being the
highest court of the Land, presiding over a
Criminal Justice System that allows culprits of
the most dangerous and revolting kinds of

599 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.

141
murders to slip away should be extremely wary
in dealing with death sentence600
5.2.69 In other words, how can any court in the
country determine whether the cases before them are
the rarest of rare? Each judge can only limit her analysis
to the cases s/he has presided over or read about. In
light of the large volumes of cases, the determination
that one or the other case is a "rarest of rare case" would
remain nothing but a legal fiction. Whether a law that
permits the taking of life on the basis of a legal fiction,
is in consonance with the text and spirit of the
Constitution, bears investigation.
5.2.70 The excessive use of the death penalty is
evidenced by another figure. Data supplied by the
Supreme Court to the Death Penalty Litigation Clinic,
National Law University, Delhi, and presented at the
National Consultation indicates that between 2000-
2015, trial courts imposed the death sentence on 1790
persons.601 Of these, 1512 cases were decided by the
High Court. The remaining are either still pending, or
their judgments have not been located. In 62.8% of
these 1512 cases, the appellate courts commuted the
sentence. That is, though the appellate courts agreed
with the trial court on conviction, they rejected the
court's sentencing determination. In another 28.9 % of
the cases where the trial court awarded the death
sentence, or roughly a third, ended in acquittal,
pointing to an even deeper systemic problem relating to
the quality of adjudication in the lower courts. In all, the
death sentence was confirmed only in 4.3% of the cases.
The Supreme Court's data thus shows that trial courts
erroneously impose the death penalty in 95.7% cases.

b. "Judge Centric" Death Penalty Jurisprudence
5.2.71 An empirical examination of the death
penalty carried out in the 1970s by Professor
Blackshield highlighted the judge-centric nature of
application of the death penalty in those days. This

600 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 45.
601 This figure excludes TADA cases.

142
study analysed over 70 decisions of the Supreme Court
between 1972-1976, where the Court had to decide
between life imprisonment or death penalty. The author
found evidence of judge-centric sentencing when he
noted that a large number of death sentences were
given/confirmed by Benches consisting of Justices
Vaidialingam, Dua, and Alagiriswami.602 Further,
Blackshield also analysed the various aggravating and
mitigating factors employed by the Supreme Court and
found no coherence in the Court's approach in applying
the same. While delay after sentence was given
importance in five cases, it was discounted in another
five. Similarly, the (young) age of the accused was given
due consideration in two cases but discounted in
another case. The "immoral" relationship of the
accused-Appellant was treated as a mitigating factor in
two cases and an aggravating factor in one case.603 The
similarities between Justice Bhagwati's dissent
referenced above, Professor Blackshield's research, and
the present state of the death penalty are striking.
5.2.72 Justice Bhagwati's concern that the death
penalty depends not on the facts of the case, but on the
composition of the Bench echo in recent admissions by
the Supreme Court that the imposition of the death
penalty is "judge centric."604 This concern is further
substantiated by research presented at the National
Consultation examining the impact of judicial
conscience on the outcome of death penalty cases. Post-
2000, one judge of the Supreme Court imposed the
death sentence in 14 out of 30 cases (of which two
involved acquittal by the High Court, two involved
turning life sentences into death, and in two the death
sentence was imposed despite acquittal by another
Supreme Court judge). Pertinently, five of these 15 cases
imposing death, have now been declared per incuriam
by the Supreme Court itself. A second judge imposed
the death sentence in 8 out of 18 cases, whereas two

602 A.R. Blackshield, Capital Punishment in India, 21(2) Journal of the Indian Law
Institute, 156-158 (April-June 1979).
603 A.R. Blackshield, Capital Punishment in India, 21(2) Journal of the Indian Law

Institute, 162. (April-June 1979).
604 Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.

143
other judges imposed no death penalties in adjudicating
10 and 16 cases respectively.605
5.2.73 These studies and examples illustrate the
limited possibility of "principled sentencing" in India,
which is the underlying assumption for the
constitutionality of the death penalty in India.
c. Geographical Variations
5.2.74 The NCRB data cited above also points to
another axis of disparity in death penalty jurisprudence.
When broken down by state, the rate of imposition of
death sentences as a percentage of the rate of
convictions for murder for the period 2004-12, shows
significant disparity by state. For example, a murder
convict in Kerala is about twice as likely to get the death
sentence as a murder convict in the rest of the country
put together; a murder convict in Jharkhand is 2.4
times as likely to get the death sentence compared to
the rest of the country, Gujarat 2.5 times, West Bengal
3 times, Karnataka 3.2 times, Delhi 6 times, and
Jammu and Kashmir 6.8 times. A murder convict in
Karnataka is 5.8 times as likely to get the death
sentence compared to Tamil Nadu. A murder convict in
Gujarat is again 5.8 times more likely to get the death
sentence than one in Rajasthan. Maharashtra sends
murder convicts to death row 2.9 times more frequently
than Madhya Pradesh. Uttar Pradesh sends the most
number of persons to the death row, but as a proportion
of the conviction rate for murder, it is about par with
the national average. Karnataka was the second largest
contributor to the death row in this period, and its death
sentence rate was 3.2 times the national average.606

605
Presentation made by Dr. Yug Mohit Chaudhry at the National Consultation (on file).
606See Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara,
Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-
2013) [forthcoming 2015] (on file).

144
C. Systemic and Structural Concerns with the
Criminal Justice Process: Implications for the
Death Penalty
5.3.1 Apart from concerns regarding the excessive
and arbitrary use of the death penalty, data indicates
that there exists disparity in the imposition of the death
penalty, reflecting systemic and structural
disadvantages, particularly of the socially and
economically marginalized.
(i) Assessing Capacity to Reform
5.3.2 The Bachan Singh formulation requires
judges to impose the death penalty only when the
alternative of life is "unquestionably foreclosed."607 To
make this determination, judges are required to
consider whether the offender is capable of reform.
Crucially, Bachan Singh endorsed the standard that the
prosecution should prove by leading evidence that the
offender cannot be reformed.608
5.3.3 As the Supreme Court has subsequently
noticed, this injunction to determine the possibility of
reformation through leading evidence rather than
hunches, has rarely been followed.609 More often than
not, judges state, rather than evaluate, whether a
person is likely to be a continuing menace to society;
whether he is capable of reform and therefore, whether
sparing his life is "unquestionably foreclosed."610 How
do judges predict the offender's future predilections,
especially (though not only) when they find in otherwise
similar fact situations that in the one case the offender
was not likely to be a menace to society, and in another,
that he was? Comparative experiences, and crucially
our own history cautions us about making such
assessments.
5.3.4 A number of studies, now severely
discredited, have attempted determined whether certain

607 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
608 See discussion above.
609 Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
610 See discussion above.

145
people or groups can be characterized and categorized
according to their criminal propensities or other
tendencies. Studies of this sort tried to show, for
example, that whites had larger brains than "inferior"
races, like blacks, and thus were more intelligent.
However, Stephen Jay Gould, who studied a host of
"scientific" efforts to relate intelligence to brain size over
the last 150 years, has proved these attempts false.611
In some of the works he studied, the methods used were
seriously flawed. In others, existing prejudices of these
"scientists" influenced how they chose and analysed
their data. But crucially, Gould found a tendency in
these studies to convert abstract prejudices -- here,
that blacks are inferior -- into "facts", just so one can
"make the divisions and distinctions among people that
our cultural and political systems dictate."612
5.3.5 Indian history echoes similar problematic
attempts at classifying people. In 1871, for example, the
British passed the "Criminal Tribes Act". The motivating
notion behind the Act "was to regard all members of
these tribes as potentially criminal."613 The Act listed
about 150 tribes by name.614 If a person was born into
one of these tribes, that person would by birth and by
definition be criminal. While introducing the Bill that
became the 1871 Act, T. V. Stephens, a Member of
Britain's Law and Order Commission, observed that
such tribes "were criminals from times immemorial ...
[They are] destined by the usages of caste to commit
crime and [their] descendants will be offenders against
law until the whole tribe is exterminated or accounted for
in the manner of the Thugs...I may almost say his religion
[is] to commit crime."615 Such persons were thus

611 STEPHEN JAY GOULD, THE MISMEASURE OF MAN, 56 (1996).
612 STEPHEN JAY GOULD, THE MISMEASURE OF MAN, 56 (1996).
613Ministry of Education and Social Welfare, Gazetteer of India, (4)1978, New Delhi.
614 The Resist Initiative International, Branded 'Born' Criminals: Racial Abuses against

Detained and Nomadic Tribes in India, Information for the consideration of the
Committee on Elimination of Racial Discrimination in Reviewing India's Fifteenth to
Nineteenth Periodic Reports, 3 (Feb 2007), available at
http://www2.ohchr.org/english/bodies/cerd/docs/ngos/resist.pdf, visited on 23.08.2015.
615 Dilip D'Souza, Declared Criminals at Birth. India's "Denotified Tribes", (2001),

available at: http://www.manushi-
india.org/pdfs_issues/PDF%20file%20123/4.%20Declared%20Criminal%20at%20Birt
h.pdf, visited on 23.08.2015.

146
assumed to be prone to committing crimes by habit,
addiction, or even religious diktats. 616
5.3.6 Assuming criminality based on one's
inherent, genetic or congenital attributes often find their
way into law and the process of justice, including the
death penalty. So much so, that in 1996, Texas had to
amend its Code of Criminal Procedure to state that the
Prosecution in capital punishment cases may not offer
evidence "to establish that the race or ethnicity of the
defendant makes it likely that the defendant will engage
in future criminal conduct."617 That is, as late as 1996,
the law in Texas had to expressly prohibit the tendency
to assume that some people have an inherent, genetic
predisposition to crime because of their race or
ethnicity. The American Bar Association has also urged
that the law do away with the very notion of "future
dangerousness".618 They noted that this idea "often
turns on unreliable scientific evidence."619 Put another
way, the American Bar Association recognized that
there is no scientific evidence for such a thing as an
inherently criminal bent of mind.

5.3.7 Similar concerns with assuming
dangerousness arise in India as well. To again take the
example of the Criminal Tribes Act, though this law was
repealed in 1952 (and the tribes were "de-notified") it
was however replaced by Habitual Offenders Acts in
several states. Persons belonging to de-notified tribes
continue to be presumed (in practice, if not in law) to be

616 Dilip D'Souza, Declared Criminals at Birth. India's "Denotified Tribes", (2001),
available at: http://www.manushi-
india.org/pdfs_issues/PDF%20file%20123/4.%20Declared%20Criminal%20at%20Birt
h.pdf, visited on 23.08.2015.
617 ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE

PERSPECTIVE, 361 (2015).
618 ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE

PERSPECTIVE, 361 (2015); American Bar Association, Evaluating Fairness and
Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment
Report (September 2013), available at
http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratoriu
m/tx_complete_report.authcheckdam.pdf, visited on 23.08.2015.
619 ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A W ORLDWIDE

PERSPECTIVE, 361 (2015).

147
criminal, and genetically predisposed to crime.620 The
attitude of the Criminal Justice functionaries regarding
de-notified tribes can be summed up from this, amongst
many other similar, news reports:

According to Ashti's police chief, S.S.
Gaikawad, a quarter of local thefts are
carried out by Pardhis. His deputy reckons
half of Pardhi men are criminal. Mr
Gaikawad attributes high rates of
criminality to poverty, but believes culture
also plays a part: 'The more criminal cases
against a Pardhi man, the higher his status,
and therefore the better his marriage
prospects are.621

5.3.8 Assumptions like these rest on no scientific
evidence of any kind. And yet Habitual Offenders Acts
remain in place across India. Further, police manuals
till date mandate the opening of history sheets for
registered ex-notified tribe members, "on account of
their active criminality."622 The "taint of inherent
criminality" continues to shape the interaction of
members of de-notified tribes with the state apparatus,
including the police. Infact, the Delhi High Court in Naz
Foundation v. State (N.C.T of Delhi)623 also noted how the
taint of criminality still continues for communities such
as the Hijra community.624

5.3.9 The issue to consider is how members of such
tribes, who are often viewed in such a prejudicial
manner, will be treated within the criminal justice
system, especially when the question of their "future
dangerousness" or "possibility of reform" is in issue. To
what extent, if any, do socially constructed and imbibed
prejudices against the person's identity play a role in

620 International Convention on the Elimination of all forms of Racial Discrimination,
CERD/C/IND/CO/19, 3 (Seventieth Session, March 2007).
621 The Economist, If they were crooks, wouldn't they be richer?, April 22 2010.
622 Mrinal Satish, "Bad Characters, History Sheeters, Budding Goondas and Rowdies":

Police Surveillance Files and Intelligence Databases in India," 23 NAT'L. L. SCH. INDIA
REV. 133, 138 (2011-12).
623 Naz Foundation v. State (N.C.T. of Delhi), 2010 Cri.L.J. 94 (Del).
624 Naz Foundation v. State (N.C.T. of Delhi), 2010 Cri.L.J. 94 (Del), at para 50.

148
such assessment? While it is difficult to be sure of this,
the larger context of adjudication, where individual
judges often make legal assessments based on such
social constructs is indicative of an answer.
Assumptions relating to caste have often been made,
and used during trials for various offences in different
ways, which keeps alive the concern that otherwise
irrelevant factors such as a person's class or caste may
impact the person's interaction with the criminal justice
system.625 It is in this larger context of persistent social
prejudice against certain groups, that so final and
irrevocable a punishment as the death penalty operates,
which may influence not only the police apparatus, the
prosecution machinery, witnesses and the public, but
also the judges themselves.

5.3.10 These are not merely theoretical
suppositions. The reality of the discriminatory impact of
caste, class, and religion is exhibited by data presented
by the Death Penalty Research Project of National Law
University, Delhi at the Commission's National
Consultation. The data indicates that out of 373
prisoners on death row in the country, over 75% belong
to backward classes and religious minorities. 93.5% of
those sentenced to death for terror offences are religious
minorities or Dalits.626 Hence, it appears that there are
plenty of reasons, as well as empirical evidence to fear
the disparate and maybe even discriminatory impact of
the death penalty.

(ii) Economic and Educational Vulnerability

5.3.11 Shibbanlal Saxena, a member of India's
Constituent Assembly, had spent over two years on
death row before Independence. In that time, he saw
several other prisoners executed, among whom were
seven he believed were innocent. During a debate in the
Constituent Assembly, Saxena said:

625 See e.g., Vellapandi v. State, 2001 Cri. L.J. 2772 (Mad), at para15; Dayaram v.
State of M.P., 1992 Cri. L.J. 3154 (M.P.).
626 Presentation made by the Death Penalty Research Project at the National

Consultation on July 11, 2015.

149
I have seen people who are very poor not being
able to appeal [their convictions] as they
cannot afford to pay the counsel. [T]he
Supreme Court may grant special leave to
appeal from any judgement, but it will be open
to people who are wealthy, who can move
heaven and earth, but the common people who
have no money and who are poor will not be
able to [appeal in this way].627

5.3.12 The implication of Saxena's statement was
that it is much harder for an accused with limited
economic means to defend himself than it is for richer
prisoners to do so. If that is an obvious observation that
holds across the board, it is also indicative of the
possibility that a capital punishment trial, by its very
nature, disadvantages the economically vulnerable,
especially in an adversarial system. It is also a reminder
of a serious conundrum every death penalty trial is
faced with: how do we ensure that the accused has
reasonable legal representation throughout the lengthy
process? Often he is too poor to afford a lawyer. In such
cases, the government is obliged to appoint lawyers for
the defence. However, lawyers so appointed are paid
absurdly low amounts for their work. Legal aid lawyers
are generally paid in the range of Rs. 500 - Rs. 1500 per
trial, and Rs. 1000 - Rs. 3000 per appeal. Delhi is an
exception where legal aid lawyers are paid Rs. 12,000
for a Sessions trial where the death penalty is a possible
sentencing option.628 And yet even this number remains
significantly lower than the fees a private advocate
would generally charge.

5.3.13 Empirical evidence also suggests that the
majority of death row convicts in India are from
economically vulnerable sections of society. Data
presented by NLU Delhi's Death Penalty Research
Project shows that nearly 74% of convicts were
economically vulnerable (vulnerability judged in large
627 Constituent Assembly of India, Vol. 8, 3rd June 1949, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm, visited on 25.08.2015
628 Data provided to the Commission by Dr. Yug Chaudhry, as obtained from the

respective State Legal Services Authorities (on file).

150
part by their occupations and landholdings). In terms of
being sole-bread winners, the Clinic could not find
information for 25% of the convicts. Of the remaining
75% of the convicts, 63% were sole breadwinners,629
which would certainly have an impact on whether their
families could afford retaining competent counsel
through the legal process. The competence of counsel
would also impact the entire trial and appellate process.

5.3.14 The issue of ineffective legal aid, especially in
death penalty cases has been debated across the world.
It has been argued that "whether one ends up in death
row is usually determined not by the heinousness of the
crime but by the quality of trial counsel."630 Ineffective
assistance of counsel has a higher tendency to lead to
wrongful convictions.631 Take for example, the case of
Mohd. Hussain @ Julfikar Ali v. State,632 where the
accused was convicted and sentenced to death by the
trial court and high court for a blast that killed 4
persons. The Supreme Court remanded the matter back
for a fresh trial, noting that the accused had been
denied fair trial because of the denial of effective legal
representation. At this fresh trial Mohd. Hussain was
found innocent of all charges and was acquitted. He was
in prison for 15, out of which he was on death row for 7
years and 2 months.
5.3.15 Interestingly, in the recent case of Surendra
Koli v. State of UP,633 where the convicted person filed a
review petition against his conviction and sentence by
the Supreme Court on the ground that he had lacked
effective legal representation before the trial court, the
Supreme Court rejected the petitioner's contention
because "at this belated stage of review in the present
proceedings, this argument would not come to the respite

629 Data presented by the Death Penalty Research Project at the National Consultation
organized by the Law Commission on July 11, 2015.
630Kenneth Williams, Most Deserving of Death? An Analysis of the Supreme Court's

Death Penalty Jurisprudence 17 (2012).
631 Kenneth Williams, Most Deserving of Death? An Analysis of the Supreme Court's

Death Penalty Jurisprudence 18 (2012).
632 Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308.
633 Surendra Koli v. State of UP, Review Petition (Crl.) No. 395 of 2014 dated October

28, 2014.

151
of the petitioner," but observed that "the learned District
Judges while assigning the defence counsel, especially
in cases where legal aid is sought for by the accused
person, must preferably entrust the matter to a counsel
who has an expertise in conducting the Sessions Trial.
Such assignment of cases would not only better preserve
the right to legal representation of the accused persons
but also serve in the ends of ensuring efficient trial
proceedings."634

5.3.16 The empirical data on error further
substantiates the discriminatory impact that poverty,
and consequently, possible ineffective assistance of
counsel has on people charged for a capital offence. The
Supreme Court in Bariyar, Sangeet, and Khade,
acknowledged error in 16 cases, involving death
sentences imposed on 20 individuals. Disturbingly, in
over half these cases in which the Court later found
error, the accused were represented by amicus curie.
Data from a study titled Hanging in the Balance:
Arbitrariness in Death Penalty Adjudication in India
(1950-2013) shows that out of the 281 persons who were
awarded the death sentence by at least one level of court
between 2000 and 2013, and whose cases went up
through all the tiers of the judicial system, 128 persons
were given the death sentence only by the Trial Court.635
Both the High Court and the Supreme Court either
commuted the sentence or acquitted the person in these
cases. 7.03% of such accused were represented by
Amicus Curie. In the same time period, 79 persons were
given the death sentence by both the Trial Court and the
High Court but were either acquitted or had their
sentences commuted by the Supreme Court. The
Amicus Curie representation of this group was 22.8%.
And finally, of the 69 persons who were given the death

634 Surendra Koli v. State of UP, Review Petition (Crl.) No. 395 of 2014 dated October
28, 2014.
635 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in

the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013)
[forthcoming 2015] (on file).

152
sentence by the Supreme Court itself, 36.2% has
amicus representation.636

5.3.17 The over-representation of amicus curie in
cases relating to error and to the imposition of the death
penalty is a cause for caution, not least because it may
signal the impact of structural and systemic biases on
the imposition of the death penalty. Merely because a
person is represented by amicus before the Supreme
Court of course does not imply that the person did not
get good legal representation before the Supreme Court.
However, the fact that an accused is represented by
amicus does indicate the person's economic
circumstances. The ability to hire quality legal
representation before trial courts, and to ensure that a
robust record is created at the trial court level, is likely
to be compromised in such instances. The impact of the
lack of access to quality legal representation,
particularly at the trial stage is also likely to be
compounded by the existence of inconsistencies in the
death penalty jurisprudence, which result in ill-trained
lawyers having to argue before inadequately guided
judges on an incoherent area of law.

5.3.18 This may be partially responsible for the
higher presence of amicus representation in cases in
which the death penalty is upheld by the Supreme
Court. Be that as it may, this data indicates that of the
persons who are given the death sentence at the trial
court level, those who cannot afford to hire their own
legal representation are more likely to have their death
sentences confirmed by the high court, and/or the
Supreme Court. This was in fact acknowledged by the
Supreme Court in Mohd. Farooq Abdul Gafur v. State of
Maharashtra,637 where the Court observed that the
inherent imperfections of the criminal justice system
lead to "swinging fortunes of the accused on the issue of
determination of guilt and sentence."638 It noted that

636 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in
the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013)
[forthcoming 2015] (on file).
637 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
638 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para169.

153
"leading commentators on the death penalty hold the
view that it invariably the marginalized and destitute
who suffer the extreme penalty."639

5.3.19 Echoing a similar sentiment, though in the
context of the US, public interest lawyer Bryan
Stevenson, Executive Director of Equal Justice
Initiative,640 once said "the reality is that capital
punishment in America is a lottery. It is a punishment
that is shaped by the constraints of poverty, race,
geography and local politics."641

5.3.20 Similarly, in his dissenting judgement in the
Bachan Singh case, Justice P.N. Bhagwati wrote:

[The] death sentence has a certain class
complexion or class bias [because] it is largely
the poor and the downtrodden who are the
victims of this extreme penalty. We would
hardly find a rich or affluent person going to
the gallows. Capital punishment, as pointed
out by [San Quentin State Prison] Warden
[Clinton Truman] Duffy, is a "privilege of the
poor.642

5.3.21 He then summed up his argument with the
following and forthright denunciation of the penalty:

There can be no doubt that death penalty in
its actual operation is discriminatory, for it
strikes mostly against the poor and deprived
sections of the community, and the rich and
the affluent usually escape from its clutches.
This circumstance also adds to the arbitrary
and capricious nature of the death penalty
and renders it unconstitutional as being
violative of Articles 14 and 21.643

639 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para169.
640 Equal Justice Initiative, available at www.eji.org.
641 HUGO ADAM BEDAU AND PAUL G. CASSELL, DEBATING THE DEATH PENALTY : SHOULD

AMERICA HAVE CAPITAL PUNISHMENT?, 78 (2004).
642 Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 81.
643 Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 81.

154
5.3.22 This pronouncement of unconstitutionality
found favour with South African Constitutional Court in
1995, when all eleven judges on the Bench agreed that
race and poverty were factors in the outcomes of death
penalty cases, as was "the personality and particular
attitude to capital punishment of the trial judge."644 On
these and other grounds, they pronounced that capital
punishment violated the Interim Constitution of South
Africa. It has since been abolished in South Africa.645
5.3.23 These concerns regarding the excessive,
uncertain, and disparate application of the death
penalty are compounded by the fallibility of the system
as a whole, especially for an irreversible punishment.
This issue is discussed next.
D. Fallibility of the Criminal Justice System and
the Death Penalty
[The] death penalty is irrevocable; it cannot be
recalled. It extinguishes the flame of life forever
...It is by reason of its cold and cruel finality
that death penalty is qualitatively different
from all other forms of punishment.
Bachan Singh v. State of Punjab (Bhagwati J.,
dissenting)646
From this day forward, I no longer shall tinker
with the machinery of death. For more than 20
years I have endeavored--indeed, I have
struggled--along with a majority of this Court,
to develop procedural and substantive rules
that would lend more than the mere
appearance of fairness to the death penalty
endeavor. Rather than continue to coddle the
Court's delusion that the desired level of
fairness has been achieved and the need for
regulation eviscerated, I feel morally and
intellectually obligated simply to concede that
644 State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94,
June 6 1995, at para 48.
645 State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94,

June 6 1995.
646 Bachan Singh v. State of Punjab, (1982) 3 SCC 24, 751, at para 23.

155
the death penalty experiment has failed. It is
virtually self-evident to me now that no
combination of procedural rules or substantive
regulations ever can save the death penalty
from its inherent constitutional deficiencies.
The basic question--does the system
accurately and consistently determine which
defendants "deserve" to die?--cannot be
answered in the affirmative. It is not simply
that this Court has allowed vague aggravating
circumstances to be employed, relevant
mitigating evidence to be disregarded, and
vital judicial review to be blocked. The problem
is that the inevitability of factual, legal, and
moral error gives us a system that we know
must wrongly kill some defendants, a system
that fails to deliver the fair, consistent, and
reliable sentences of death required by the
Constitution.

- Callins v. Collins (Blackmun, J.,
dissenting)647
(i) Guilt Determination
5.4.1 Justice Bhagwati's reminder about the
finality of capital punishment, and Justice Blackmun's
conviction regarding its fallibility should add caution to
any debate on the death penalty. The desirability of
retaining such an irreversible punishment has to be
appreciated in this context of a criminal justice system
that is both fallible and open to manipulation. A recent
egregious example highlights this concern. In the
Akshardham Temple Blasts of 2002, 33 people were
killed and about 85 injured. Adambhai Sulemanbhai
Ajmeri and 5 others were arrested for this attack. They
were tried for various offences, including under the
Prevention of Terrorism Act. Three of the accused were
given the death sentence by the trial court. The High
Court upheld their conviction and sentence. On appeal
before the Supreme Court, the Court not only found all

647 Callins v. Collins, 510 US 1141 (1994).

156
the accused innocent and acquitted them, but also
expressed "anguish about the incompetence with which
the investigating agencies conducted the investigation of
the case of such a grievous nature, involving the integrity
and security of the Nation. Instead of booking the real
culprits responsible for taking so many precious
lives, the police caught innocent people and got
imposed the grievous charges against them which
resulted in their conviction and subsequent
sentencing."648
5.4.2 This was therefore not a case of a mistake in
investigation, but of a complete fabrication by the police.
Despite this, two tiers of courts were convinced beyond
reasonable doubt that all the accused were guilty.
Unfortunately, this is not a one-off case. In multiple
cases, the Supreme Court has found that accused
persons were not only convicted, but also sentenced to
death on the basis of false and fabricated evidence
generated through manipulated investigations, or
through the negligence and callousness by various
actors in the criminal justice system, including the
police, prosecution and lower courts. A report by the
Jamia Teachers' Solidarity Union lists 16 cases of
serious allegations, all of them involving terror charges,
which were found to be completely false and fabricated
by the courts. All of these 16 cases were investigated by
one police cell. Again, however, the problem is more
widespread. As the Supreme Court itself recognized, "[t]t
is well known fact that in our country very often the
prosecution implicates not only real assailants but also
implicates innocent persons so as to spread the net
wide."649

5.4.3 In multiple cases, the Court has noted that
the conviction of the accused (and consequent death
sentence) by lower courts was based on concocted
evidence. An example is Ashish Batham v. State of
Madhya Pradesh,650 where the Supreme Court observed

648 Adambhai Sulemanbhai Ajmeri & Ors v. State of Gujarat, (2014) 7 SCC 716, at para
225.
649Major Singh v. State of Punjab, (2006) 10 SCC 499, at para 15..
650 Ashish Batham v. State of Madhya Pradesh, (2002) 7 SCC 317.

157
that, "we could not resist but place on record that the
appellant seems to have been roped in merely on
suspicion and the story of the prosecution built on the
materials placed seems to be neither the truth nor wholly
the truth and the findings of the courts below, though
seem to be concurrent, do not deserve the merit of
acceptance or approval in our hands having regard to the
glaring infirmities and illegalities vitiating them and
patent errors on the face of the record, resulting in serious
and grave miscarriage of justice to the appellant."651

5.4.4 Similarly, in Rampal Pithwa Rahidas v. State
of Maharashtra,652 where the trial court sentenced 8
persons to death and the high court confirmed the death
sentence against 5 of them, the Supreme Court
acquitted all the accused, on the ground that the main
evidence against them - that of an approver - was not
reliable. The Court not only found the evidence
unconvincing, it also concluded that the witness was
pressured by the police to turn approver because "the
investigation had drawn a blank and admittedly the
District Police of Chandrapur was under constant attack
from the media and the public."653
5.4.5 So also, in Subash Chander etc. v. Krishan Lal
and ors., 654 where the trial court convicted the four
accused and sentenced three of them to death, and the
High Court upheld the conviction, but commuted the
sentence of all to life, the Supreme Court acquitted all
the accused, observing that, "[w]e have noticed with pain
that the aforesaid four accused persons were implicated
not only to mislead the court but also to provide protection
to the real persons, being sure that ultimately no court
could convict and sentence any of the aforesaid accused
persons."655 Despite the Court's opinion that "no court
could convict and sentence any of the aforesaid accused

651 Ashish Batham v. State of Madhya Pradesh, , (2002) 7 SCC 317, at para 15.
652 Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685.
653 Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685, at para 27.
654 Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458.
655 Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458, at para 12.

158
persons,"656 3 of them spent nearly six years on death
row.
5.4.6 Again, in Parmananda Pegu v. State of
Assam, 657 the Supreme Court noted that the
confessions were involuntary and that the medical
evidence and cause of death did not match the
confessions made. The accused had retracted their
confessions and informed the trial court of the torture
that they suffered when they made their statements in
the court under Section 313 CrPC. The Supreme Court
acquitted the accused, and found that the facts
suggested that the police had extracted an involuntary
confession. Notably, both the lower courts had imposed
the death sentence on the accused.
5.4.7 Other factors like the denial of effective legal
representation may send innocent persons to the death
row. An example is Mohd. Hussain @ Julfikar Ali v.
State,658 where the accused was convicted and
sentenced to death for a blast in a bus in Delhi which
killed 4 persons. His conviction and sentence was
upheld by the High Court. 659 Before the Supreme Court,
a division Bench noted that the accused had been
denied fair trial because of the denial of legal
representation.660 Castigating the trial court for its
"casual manner" in conducting a capital punishment
case, the division Bench split over whether to acquit the
accused or to send the case for retrial. 661 The matter
was referred to a three judge Bench which sent the case
for retrial. In January 2013, Mohd. Hussain was found
innocent and acquitted of all charges. He was in prison
for 15, out of which he was on death row for 7 years and
2 months.662

656 Subash Chander etc. v. Krishan Lal and Ors, (2001) 4 SCC 458, at para 12.
657 Parmananda Pegu v. State of Assam, (2004) 7 SCC 779.
658 Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308.
659 State v. Mohd. Hussain @ Julfikar Ali, 140 (2007) DLT 428.
660 Mohd. Hussain @ Julfikar Ali v. State, 2012 (1) SCALE 145.
661 Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308.
662 State v. Mohd. Hussain @ Julfikar Ali, Sessions Case No. 79/2012, dated

04.01.2013 (Del).

159
5.4.8 Another example is the case of Ram Deo
Chauhan v. State of Assam.663 Ram Deo Chauhan was
arrested for an offence that took place in 1992. He was
convicted and sentenced to death by the trial court, and
the high court. His plea of juvenility was rejected. A two
judge Bench of the Supreme Court upheld his death
sentence in 2000.664 On review, one judge recorded the
fact that though Ram Deo was not juvenile at the time
of commission of the offence, he was close to 16 years,
and his young age was a mitigating factor. For this
reason, he refused to impose the death penalty.
However, per majority, Ram Deo Chauhan's death
sentence was upheld.665 In 2002, the Governor of
Assam, on the intervention of the National Human
Rights Commission, commuted his death sentence.
However, in 2009 in a writ filed by the family of the
deceased person, the Supreme Court set aside the
commutation order, and restored the death sentence.666
In a review of this decision, the Supreme Court asked
Ram Deo Chauhan to approach the appropriate forum
for determination of his age at the time of committing
the offence.667 In 2010, the Gauhati High Court finally
determined the Ram Deo was in fact a juvenile at the
time of commission of the offence. By this time he had
spent about 18 years in prison, of which about 6 years
were on death row. In that time, three different Benches
of the Supreme Court had imposed the death penalty on
him.
5.4.9 Ankush Maruti Shinde v. State of
Maharashtra668 is a similar example. In 2006, Ankush
Shinde and 5 others were given the death penalty by the
trial court for rape and murder of a minor. The High
Court upheld the death sentences of three and

663 Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das, Review Petition (C)
1378/2009.
664 Ramdeo Chauhan @ Rajnath Chauhan v. State of Assam, (2007) 7 SCC 455.
665 Ramdeo Chauhan @ Rajnath Chauhan v. State, Review Petition (crl.) 1105/2000.,

10.05.2001 (SC).
666 Bani Kanta Das and Anr. v. State of Assam, Writ Petition (Civil) 457/2005.,

8.05.2009 (SC).
667 Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das, Review Petition (Civil)

1378/2009., 19.11.2010 (SC).
668 Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667.

160
commuted the others to life. On appeal, the Supreme
Court imposed the death sentence on all six (relying on
the per incuriam decision in Ravji for its determination
that the case fell into the rarest of rare category). In
2012, about 3 years after the Supreme Court decision,
a trial court determined that Ankush Shinde was a
juvenile at the time of commission of the offence.669 By
this time, he had spent 6 years on death row, out of a
total of 9 years in prison.
5.4.10 The study Hanging in the Balance referenced
above indicates that the cases mentioned above are not
isolated instances. In the period 2000-2013, 18 persons
who were awarded the death penalty by both the lower
courts were finally acquitted by the Supreme Court. An
additional 67 persons had been given the death penalty
by at least one court and acquitted by another. Of these,
the Supreme Court itself imposed the death penalty
itself on 2 persons who were acquitted by the High
Court, and on 2 other persons who were acquitted by
one judge of the Supreme Court. This data, and the
instances mentioned above raise serious questions
regarding the robustness of the criminal justice process,
which provides the context and structure for the
operation of the irrevocable punishment of death. The
operation of the criminal justice system raises serious
concerns if such a large number of people who are given
the death sentence by one court but are ultimately
found to be innocent. The very existence of an
irreversible punishment like death in such a system is
must be considered in any discussion about the
abolition of the death penalty.
(ii) Admitted Error in Imposing the Death
Sentence
5.4.11 Compounding the concerns regarding a
high reversal rate in cases of capital offences, as well as
the inconsistencies in the application of the rarest of
rare doctrine, is the high rate of error acknowledged by
the Supreme Court itself in its own decisions. In just

669Ankush Maruti Shinde v. State of Maharashtra, Criminal Application 05/2012.,
6.07.2012 (Sessions Court, Nashik).

161
three cases: Bariyar, Sangeet, and Khade, the Court
acknowledged error in 16 cases, involving death
sentence to 20 persons. 16 of these persons were
sentenced to death in the period between 2000-2013,
which implies that the Supreme Court has admitted
error in imposing the death penalty on 16 persons out
of the total of 69 who were given the death penalty by
the Court in this time period. This is an error rate of
23.2%. The Supreme Court therefore has acknowledged
that in close to a quarter of the cases in which it has
given the death penalty in the recent past, the death
penalty was imposed erroneously.
5.4.12 In Bariyar, the Court examined the
decision in Ravji alias Ram Chandra v. State of
Rajasthan,670 where it was 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. ... The punishment to be awarded
for a crime ... should conform to and be
consistent with the atrocity and brutality with
which the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's cry for justice against the criminal. 671
5.4.13 Bariyar held that the exclusive focus in
Ravji on the crime, rendered this decision per incuriam
Bachan Singh. The Court listed a further 6 cases where
Ravji had been followed, and which had therefore relied
on incorrect precedent. Two of the 11 persons given the
death sentence in this manner, including Ravji himself,
were executed, and of the remaining, 3 are still on death
row, with their mercy petitions having been

670
Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175.
671Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, at para 124.
Held per incuriam Bachan Singh in Santosh Bariyar v. State of Maharashtra, (2009) 6
SCC 498, at para 63.

162
subsequently rejected, despite the Court having
acknowledged its error 6 years ago.672
5.4.14 Ankush Maruti Shinde v. State of
Maharashtra, 673 which was delivered about two weeks
before Bariyar, and which imposed the death sentence
on 6 persons relying on Ravji, was not noticed by the
Court in Bariyar. Surprisingly, even after Bariyar
expressly held that Ravji was decided per incuriam, the
decision in that case has been followed by the Supreme
Court in at least three other cases. Though these cases
have not been noticed by the Supreme Court so far, in
all, an additional 9 people have been given the death
sentence relying on Ravji.674
5.4.15 Similarly, the Supreme Court in Shankar
Khade doubted the correctness of the imposition of the
death penalty in Dhananjoy Chatterjee v. State of West
Bengal,675 where the Court had held that "the measure
of punishment in a given case must depend upon the
atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in
which the courts respond to the society's cry for justice
against the criminals." 676 In Khade the Court opined
that prima facie the judgment had not accounted for
mitigating circumstances relating to the offender.
Dhananjoy Chatterjee was executed in 2004.

672 The mercy petitions of Saibanna and Shivaji Alhat have been rejected. News reports
indicate that the Ministry of Home Affairs has recommended the rejection of the mercy
petition presented by Mohan Anna Chavan. See, Reject Mercy Pleas of 2 Convicts,
Pranab Told, THE HINDU, August 18, 2015,
http://www.thehindu.com/news/national/reject-mercy-pleas-of-2-convicts-pranab-
told/article7551067.ece
673 Ankush Maruti Shinde & Ors. v. State of Maharashtra, (2009) 6 SCC 667.
674 Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401; Sunder

Singh v. Uttaranchal, (2010) 10 SCC 611; Jagdish v. State of M.P, 2009 (12) SCALE
580. In these cases, the Court relied on Ravji as a comparator case, to state that in the
facts of this case, the death penalty had been imposed (and using this fact to appreciate
whether the death penalty should be imposed in their own fact situations). The Court
did not note that the imposition of the death penalty in Ravji was based on a wrong
application of the law.
675 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220.
676 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15. The

exclusive focus of this decision on the crime and not the criminal was questioned in
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

163
5.4.16 Similarly, in Sangeet, the court noted an
additional 3 cases where Bachan Singh's direction to
consider both aggravating and mitigating
circumstances had not been followed.677

Table 5.1: List of Cases Doubted in Bariyar,
Sangeet, Khade
Sl. Case No. of Imposition of
No. persons Death Penalty
given expressly678
the held
death erroneous in
sentence
1. Ravji alias Ram Chandra v. State of 1 Bariyar
Rajasthan, (1996) 2 SCC 175
2. Shivaji v. State of Maharashtra, AIR 1 Bariyar
2009 SC 56
3. Mohan Anna Chavan v. State of 1 Bariyar
Maharashtra, (2008) 11 SCC 113
4. Bantu v. State of UP, (2008) 11 SCC 1 Bariyar
113
5. Dayanidhi Bisoi v. State of Orissa, 1 Bariyar
(2003) 9 SCC 310
6. Surja Ram v. State of Rajasthan, (1996) 1 Bariyar
6 SCC 271
7. State of UP v. Sattan, (2009) 4 SCC 736 4 Bariyar
8. Saibanna v. State of Karnataka, (2005) 1 Bariyar
4 SCC 165
9. Shivu v. Registrar General, High Court 2 Sangeet
of Karnataka, (2007) 4 SCC 713
10. Rajendra Pralhadrao Wasnik v. State of 1 Sangeet
Maharashtra, (2012) 4 SCC 37
11. Mohd. Mannan v. State of Bihar, (2011) 1 Sangeet
5 SCC 317
12. B.A. Umesh v. Registrar General, High 1 Sangeet
Court of Karnataka, (2011) 3 SCC 85
13. Sushil Murmu v. State of Jharkhand, 1 Sangeet
(2004) 2 SCC 338
14. Gurmukh Singh v. State of 1 Shankar Khade
Haryana, (2009) 15 SCC 635
15. Dhananjoy Chatterjee v. State of West 1 Shankar Khade
Bengal, (1994) 2 SCC 220
16. Kamta Tiwari v. State of M.P., (1996) 6 1 Shankar Khade
SCC 250

677 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37; Mohd. Mannan v. State
of Bihar, (2011) 5 SCC 317.
678 In many of these cases the Court has pointed out inconsistencies in the application

of aggravating and mitigating circumstances. In a judicial system premised on stare
decisis, especially in the context of the Court in Bachan Singh clearly mandating that
sentencing discretion has to be exercised in light of precedent, these inconsistencies
render many such cases per incuriam as well. However, since the Supreme Court has
not expressly acknowledged that these cases are per incuriam, they have not been
added to the list. See especially, Sangeet and Khade.

164
5.4.17 Disturbingly, in over half these cases in
which the Court later found error, the accused were
represented by amicus curie. The over-representation of
amicus curie in cases relating to error is a cause for
caution, not least because it may signal the impact of
structural and systemic disadvantages on the
imposition of the death penalty, as discussed above.
(iii) Variations in Application of the Rarest of Rare
framework in the same case
5.4.18 In Mohd. Farooq the Supreme Court had
stated that in order to bring about some objectivity and
uniformity in the application of the death penalty, the
"consensus approach" should be adopted, whereby the
death penalty should be imposed only if there is
unanimity vertically across the various tiers of the court
system, as well as horizontally across Benches.679
5.4.19 However, the study Hanging in the Balance
indicates repeated departures from this "consensus
approach." This data shows that in the period 2000-13,
the cases of 281 persons came up before the Supreme
Court where at least one court had imposed the death
sentence. Of these, for 205 persons, the imposition of
the death sentence was in issue before the Court. Out
of these 205, the Supreme Court imposed the death
penalty on 69 (33.7%) people. Of this set, 5.8 % (n=4)
had been acquitted by one court/ SC judge. Another
23.2% (n= 16) had been given life by at least one
court/SC judge. Thus overall in 29% of cases where the
Supreme Court upheld or imposed the death penalty,
there was no unanimity between the judges themselves
on whether the accused was in fact guilty, and/or
whether his case belonged to the rarest of rare category,
calling for the death sentence.
5.4.20 Of the 281 cases where at least one court had
imposed the death sentence, the Supreme Court
acquitted the accused in 60 (21.4%), commuted or
679Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para
165.

165
imposed life imprisonment in 142 (50.5%), and
remanded the matter back to the High Court or Trial
Court in 8 (2.8%) cases. Of the 60 acquitted, 18 had
been awarded the death penalty by all the lower courts.
Of the 142 who were ultimately given life imprisonment,
61 had been given the death sentence by all the lower
courts.
5.4.21 Therefore, in 79 (28.1%) of the 281 cases the
Supreme Court found that on the same facts, both the
lower courts had erroneously imposed the death
sentence.
5.4.22 Further, the Supreme Court itself imposed
the death penalty on 12 persons who were given life
imprisonment by at least one lower court, and a further
4 persons who were given life imprisonment by a judge
of the Supreme Court itself.
5.4.23 It is important to note that merely because
the imposition of the death penalty is finally overturned
in such a large number of cases, does not mean that the
system is functioning well. In most of the instances
mentioned above, both the lower courts have been in
error. Such errors have been corrected only after long
durations in prison, including extended periods on
death row. The trauma of being under a sentence of
death, called the "death row phenomenon" exacts its
own mental and physical punishment, even if the
person is subsequently not executed.680 Therefore, it is
no answer to the charge against excessive imposition of
the death penalty, that most of these cases are
overturned or commuted by the appellate courts
anyway. If two courts, staffed by experienced judges can
commit errors in the determination of guilt or sentence,
there is nothing to suggest that the same mistake
cannot be made by the judge of the third tier as well. In
other countries, most notably the United States, efforts
to correct wrongful convictions, through the use of
scientific evidence such as DNA, has led to the
identification of hundreds of cases where a person was
wrongfully convicted and sentenced, even to death,
680 Discussed in the next chapter.

166
despite multiple layers of appeals and review up to the
highest levels of the judiciary.681 In the absence of such
studies in India, it is not possible to determine whether,
and if so how many such cases exist in India. However,
the examples given above, and the data presented here,
caution us that an irreversible punishment like the
death sentence exists in a fallible system.
5.4.24 Furthermore, since 2000 the Supreme Court
has dismissed in limine at least 9 special leave petitions
('SLP') against the imposition of the death penalty.682 In
a system with such a high reversal rate, the Supreme
Court which is the final appellate court has, as the
Court itself acknowledged "a far more serious and
intensive duty to discharge. The court not only has to
ensure that award of death penalty does not become a
perfunctory exercise of discretion under section 302 after
an ostensible consideration of Rarest of Rare doctrine,
but also that the decision making process survives the
special rigors of procedural justice applicable in this
regard."683 In light of this principle, the practice of
dismissing SLPs against the death penalty in limine
should therefore be done away with, as was also
recommended by the Commission in its 187th Report.
5.4.25 In sum, the death penalty operates in a
system that is highly fragile, open to manipulation and
mistake, and evidently fallible. However objective the
system becomes, since it is staffed by humans, and thus
limited by human capacities and tendencies, the
possibility of error always remains open, as has been
681 See Brandon L. Garrett, The Banality of Wrongful Executions, MICH. L. REV. (2014)
(listing 18 death row exonerations, amongst more than 250 other exonerations by
DNA). In all, so far about 155 death row inmates have been exonerated in the US using
DNA and non-DNA evidence. See The Innocence List, Death Penalty Information
Centre, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row. See
generally The Inevitability of Error, THE DEATH PENALTY PROJECT (2014) (for examples
of erroneous death sentences in various countries).
682 Lal Chand @ Laliya v. State of Rajasthan (on 20.02.2004); Jafar Ali v. State of Uttar

Pradesh (05.04.2004), Tote Dewan @ Man Bahadur Dewan v. State of Assam
(08.08.2005), Sanjay v. State of Uttar Pradesh (03.07.2006), Bandu v. State of
Karnataka (10.07.2006), Dnyaneshwar Borkar v. State of Maharashtra (21.07.2006),
Magan Lal v. State of Madhya Pradesh (09.01.2012), Jitendra @ Jeetu & Ors. v. State
of Madhya Pradesh (06.01.2015), Babasaheb Maruti Kamble v. State of Maharashtra
(06.01.2015).
683 Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para

155.

167
acknowledged the world over, including by the most
highly resourced legal systems.

5.4.26 As the instances cited above indicate, while
the existence of appellate procedures may reduce the
chances of error, these cannot be eliminated altogether.
Given the irreversibility of the death penalty, this
punishment can only be justified where the entire
system works in a fool proof manner, having regard to
the highest standards of due process, the fairest of
investigation and prosecution, the most robust defence,
and the most impartial and astute judges. However,
experiences the world over, including in India suggest,
that "all it takes is one dishonest police officer, one
incompetent lawyer, one over-zealous prosecutor or one
mistaken witness and the system fails."684 In a perfect
criminal justice system, the death penalty may be
imposed error free. However, no such system has been
devised so far. The death penalty therefore remains an
irreversible punishment in an imperfect, fragile and
fallible system.
5.4.27 The constitutionality of the death penalty has
to be evaluated in light of the foregoing discussions on
its stated justifications, as well as the concerns raised
above. As the Supreme Court cautioned in Bariyar,
[The] right to life is the most fundamental of all
rights. Consequently a punishment which aims
at taking away life is the gravest punishment.
Capital punishment imposes a limitation on the
essential content of the fundamental right to life,
eliminating it irretrievably. We realize the
absolute nature of this right, in the sense that it
is a source of all other rights. Other rights may be
limited, and may even be withdrawn and then
granted again, but their ultimate limit is to be
found in the preservation of the right to life. Right
to life is the essential content of all rights under

684 The Inevitability of Error, THE DEATH PENALTY PROJECT (2014) (for examples of
erroneous death sentences in various countries).

168
the Constitution. If life is taken away all, other
rights cease to exist.
5.4.28 Similarly, in Shankarlal Gyarasilal Dixit v.
State of Maharashtra685 the Court held: "The passing of
the sentence of death must elicit the greatest concern and
solicitude of the Judge because, that is one sentence
which cannot be recalled."
5.4.29 In light of the degree of intrusion of capital
punishment into the right to life, and the irrevocability
of the punishment, the Supreme Court has rightly
emphasized that:
[I]n the context of punishments, the protections
emanating from Article 14 and Article 21 have
to be applied in the strictest possible terms. ...
In every capital sentence case, it must be borne
in mind that the threshold of rarest of rare
cases is informed by Article 14 and 21, owing
to the inherent nature of death penalty. Post
Bachan Singh (supra), capital sentencing has
come into the folds of constitutional
adjudication. This is by virtue of the
safeguards entrenched in Article 14 and 21 of
our constitution.686
5.4.30 It is true that Bachan Singh in 1980 held that
the death penalty does not violate the Article 21
requirement on this score.
5.4.31 The Court held that:
by no stretch of imagination can it be said that
death penalty under Section 302 of the Penal
Code, either per se or because of its execution by
hanging, constitutes an unreasonable, cruel or
unusual punishment. By reason of the same
constitutional postulates, it cannot be said that
the framers of the Constitution considered death
sentence for murder or the prescribed traditional
mode of its execution as a degrading punishment

685 (1981) 2 SCC 35.
686 Bariyar.

169
which would defile "the dignity of the individual"
within the contemplation of the preamble to the
Constitution. On parity of reasoning, it cannot be
said that death penalty for the offence of murder
violates the basic structure of the Constitution."
5.4.32 However, the passage of thirty five years since
that decision, and the considerably altered global and
constitutional landscape in that time, are factors to be
considered in any re-evaluation of the constitutionality
of the death penalty.
5.4.33 The options for reforming the present system
to remove the concern regarding arbitrariness and
disparate application of the death penalty, are limited.
On the one hand, as Bachan Singh, and subsequently
Mithu v. State of Punjab687 have held, judicial discretion
cannot be taken out of the sentencing process. A
sentencing process without discretion may be more
consistent, but will also be equally arbitrary for ignoring
relevant differences between cases. In such a system
sentencing is likely to be severely unfair and would
definitely not remain a judicial function.
5.4.34 Comparative experiences also warn against
an approach that focuses on standardization and
categorization. An instructive example is the U.K. As far
back as 1953, the British Royal Commission examined
the death penalty and concluded, "No formula is
possible that would provide a reasonable criterion for the
infinite variety of circumstances that may affect the
gravity of the crime of murder." 688 The Royal
Commission was unanimous in its recommendation
against the adoption of any form of grades or degrees of
murder, especially given the wide variance of the moral
incidence of the crime, making it almost impossible to
determine in advance a category of murder that would
constitute the worst of the worst. This was the basis of
the Commission's recommendation for the abolition of
the death penalty in Great Britain. In 1957, the UK

687
Mithu v. State of Punjab, (1980) 2 SCC 684.
688
Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, at
595, quoted in McGautha v. California, 402 U.S. 183, 205 (1971).

170
government introduced the Homicide Act which tried to
distinguish between different categories of murders and
restricted death penalty to six classes of murder.689
These included murder committed in the course or
furtherance of theft; by shooting or causing explosions;
in the course of or for the purpose of resisting, avoiding
or preventing lawful arrest or effecting or assisting an
escape from lawful custody; murder of a police officer in
the execution of his duty or of a person assisting him;
and by a prisoner of a prison officer in the execution of
his duty or of a person assisting him. Along with this,
the death penalty could be imposed on a person
committing a second separate murder.690 The Act also
introduced the partial defence of "diminished
responsibility" and of killing in the course of a suicide
pact. 691
5.4.35 A major criticism of the Act was this random
basis on which death would be awarded (despite trying
to introduce more principled and exceptional
sentencing) - for instance, plotting a premeditated cold-
blooded murder by poison would not constitute a capital
offence, but accidentally killing someone in the course
of a theft would be punishable with the death sentence.
Similarly, if a person were to kill another using a
hatchet, it would not be capital murder; but ceteris
paribus if the weapon was a gun, it would be.692 This
made the law devoid of any moral or principled basis
and it became unworkable in practice.
5.4.36 This led to the Murder (Abolition of Death
Penalty) Act of 1965, which imposed a five-year
legislative moratorium on the death penalty for murder,

689Graham Hughes, The English Homicide Act of 1957: The Capital Punishment Issue,
and Various Reforms in the Law of Murder and Manslaughter, 49(6) Journal of Criminal
Law and Criminology 521 (1959), available at:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4773&cont
ext=jclc, visited on 25.08.2015.
690 The abolition of hanging in Britain, available at:
http://www.capitalpunishmentuk.org/abolish.html, visited on 25.08.2015.
691 The Law Commission Consultation Paper 177, A New Homicide Act for England

and Wales, available at:
https://www.law.upenn.edu/cf/faculty/cfinkels/workingpapers/Report%20for%20British
%20Law%20Commission%20cp177.pdf, at page 18, visited on 25.08.2015.
692 Gerald Gardiner QC, "Criminal Law: Capital Punishment in Britain", 45 ABA Journal

259, 260-261 (March 1959).

171
which was reaffirmed in December 1969 to formally
abolish death penalty for murder in Britain. A further
vote in 1994 to reinstate capital punishment was
defeated in the House of Commons in 1994.
Subsequently, the death penalty was abolished for
arson in the Royal Dockyards in 1971 and for treason
and piracy with violence in 1998, thus ending it for all
crimes.693
5.4.37 India's own jurisprudence, as well as the
experiences of other countries therefore warns against
standardization and categorization as a response to the
arbitrariness of the death penalty.
5.4.38 The other option is to put in place guidelines
that are less rigid, and allow for flexibility, but
nonetheless limit the scope of application of the death
penalty. But this is precisely the route taken by Bachan
Singh. In that case, the Court sought to carve out a very
narrow exceptional category. However, with the
accretion of precedent the Bachan Singh guidelines have
become more a legitimation for imposing the death
sentence, than any meaningful restriction. In
comparable contexts, when faced with the arbitrariness
and disparity in death sentencing, other countries have
moved towards abolition of the death penalty. In South
Africa for example, death penalty came to a judicial end.
The South African Constitutional Court in
Makwanyane, struck down the constitutional validity
694

of capital punishment, relying on the arbitrariness and
inequality inherent in the punishment, holding that:
It cannot be gainsaid that poverty, race and
chance play roles in the outcome of capital
cases and in the final decision as to who
should live and who should die. It is
sometimes said that this is understood by the
judges, and as far as possible, taken into
account by them. But in itself this is no

693 The abolition of hanging in Britain, available at :
http://www.capitalpunishmentuk.org/timeline.html
694 State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94,

June 6 1995.

172
answer to the complaint of arbitrariness; on
the contrary, it may introduce an additional
factor of arbitrariness that would also have to
be taken into account. Some, but not all
accused persons may be acquitted because
such allowances are made, and others who
are convicted, but not all, may for the same
reason escape the death sentence.695
5.4.39 In light of the Court's own acknowledgment
that the death penalty system operates in an arbitrary
manner the current method of application of the death
penalty has to end. Comparative experience tells us that
the concerns highlighted by Justice Bhagwati in Bachan
Singh, and echoed in Supreme Court judgments
recently, are likely to persist, despite attempts at
reforming the apparatus of the death penalty.

695State v. Makwanyane, Constitutional Court of South Africa, CCT/3/94, June 6 1995,
at para 51.

173
CHAPTER - VI

CLEMENCY POWERS AND DUE PROCESS ISSUES
PERTAINING TO THE EXECUTION OF DEATH
SENTENCE

A. Introduction

6.1 The Supreme Court in Shankar Kisanrao
Khade v. State of Maharashtra696 ('Khade') also referred
the administration of clemency powers by the executive
under Articles 72 and 161 of the Constitution of India
in death cases to the Commission for its consideration.
This chapter delineates the nature, purpose and scope
of the power of the executive to commute a death
sentence. This chapter also analyses the application of
the mercy jurisdiction in individual cases besides
examining decisions of courts where the outcome of the
exercise of these powers has been challenged in writ
proceedings.

B. Nature, Purpose and Scope of Clemency
Powers

6.2.1 The State and Central Governments have
powers to commute death sentences after their final
judicial confirmation. This power, unlike judicial power,
is of the widest amplitude and not circumscribed, except
that its exercise must be bona fide. Issues often alien
and irrelevant to legal adjudication - morality, ethics,
public good, and policy considerations - are intrinsically
germane to the exercise of clemency powers. These
powers exist because in appropriate cases the strict
requirements of law need to be tempered and departed
from to reach a truly just outcome in its widest sense.
The executive's powers to commute a death sentence, in
other words, exist to remedy deficiencies in the strict
application of the law. Therefore, in jurisdictions
retaining capital punishment, the proper exercise of
mercy powers is of the utmost importance given that

696
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at paras 147-
150.

174
human lives depend on it. Every citizen has a right to
petition the government to commute any death
sentence, since the state's power to take life emanates
from the people, and executions are carried out in their
name.

6.2.2 Clemency powers of either pardoning an
offender or reducing or altering the punishment
awarded,697 have their provenance in similar powers,
which, since time immemorial, have vested in the
sovereign. However, their exercise today, in modern
democratic states, is not, as it was of yore, a private act
of grace, but one of solemn constitutional
responsibility.698

6.2.3 Clemency powers in India are enshrined in
the Constitution. Article 72 vests these powers in the
President, and Article 161 vests similar powers in the
Governors of the States. Article 72 states:

Article 72. Power of President to grant pardons, etc.
and to suspend, remit or commute sentences in
certain cases - (1) The President shall have the
power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of
any offence -

(a) in all cases where the punishment or sentence is
by a Court Martial;

(b) in all cases where the punishment or sentence is
for an offence against any law relating to a matter
to which the executive power of the Union extends;

(2) Nothing in sub-clause (a) of clause (1) shall affect
the power conferred by law on any officer of the

697 For the meaning of pardon, reprieve, respite, etc, see State (Govt. of NCT of Delhi)
v. Prem Raj, (2003) 7 SCC 121, at para 10.
698 Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 16-17.

175
Armed Forces of the Union to suspend, remit or
commute a sentence passed by a Court martial.

(3) Nothing in sub-clause of clause (1) shall affect
the power to suspend, remit or commute a sentence
of death exercisable by the Governor of a State,
under any law for the time being in force.

6.2.4 Article 161 states:

Article 161. Power of Governor to grant pardons, etc.
and to suspend, remit or commute sentences in
certain cases - The Governor of a State shall have
the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of
any offence against any law relating to a matter to
which the executive power of the State extends.

6.2.5 Neither of these powers are personal to the
holders of the office, but are to be exercised (under
Articles 74699 and 163700, respectively) on the aid and
advice of the Council of Ministers.

6.2.6 Clemency powers usually come into play after
a judicial conviction and sentencing of an offender. In
exercise of these clemency powers, the President and
Governor are empowered to scrutinize the record of the
case and differ with the judicial verdict on the point of
699 Article74. (1) There shall be a Council of Ministers with the Prime Minister at the
head to aid and advise the President who shall, in the exercise of his functions, act in
accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the
President shall not be inquired into in any court.
700 Article 163. (1) There shall be a Council of Ministers with the Chief Minister at the

head to aid and advise the Governor in the exercise of his functions, except in so far
as he is by or under this Constitution required to exercise his functions or any of them
in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the
Governor is by or under this Constitution required to act in his discretion, the decision
of the Governor in his discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he ought or ought not to
have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the
Governor shall not be inquired into in any court.

176
guilt or sentence. Even when they do not so differ, they
are empowered to exercise their clemency powers to
ameliorate hardship, correct error, or to do complete
justice in a case by taking into account factors that are
outside and beyond the judicial ken. They are also
empowered to look at fresh evidence, which was not
placed before the courts. In Kehar Singh v. Union of India
('Kehar Singh'),701 a Constitution Bench (five judges)
held as follows:

7. ...To any civilized society, there can be no
attributes more important than the life and personal
liberty of its members. That is evident from the
paramount position given by the courts to Article 21
of the Constitution. These twin attributes enjoy a
fundamental ascendancy over all other attributes of
the political and social order, and consequently, the
Legislature, the Executive and the Judiciary are
more sensitive to them than to the other attributes
of daily existence. The deprivation of personal
liberty and the threat of the deprivation of life by the
action of the State is in most civilised societies
regarded seriously and, recourse, either under
express constitutional provision or through
legislative enactment is provided to the judicial
organ. But, the fallibility of human judgment being
undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been
considered appropriate that in the matter of life and
personal liberty, the protection should be extended
by entrusting power further to some high authority
to scrutinise the validity of the threatened denial of
life or the threatened or continued denial of personal
liberty. The power so entrusted is a power belonging
to the people and reposed in the highest dignitary
of the State... The power to pardon is a part of the
constitutional scheme, and we have no doubt, in our
mind, that it should be so treated also in the Indian
Republic. It has been reposed by the people through
the Constitution in the Head of the State, and enjoys
high status. It is a constitutional responsibility of
701 (1989) 1 SCC 204.

177
great significance, to be exercised when occasion
arises in accordance with the discretion
contemplated by the context....

...10. We are of the view that it is open to the
President in the exercise of the power vested in him
by Article 72 of the Constitution to scrutinise the
evidence on the record of the criminal case and
come to a different conclusion from that recorded by
the court in regard to the guilt of, and sentence
imposed on, the accused. In doing so, the President
does not amend or modify or supersede the judicial
record. The judicial record remains intact, and
undisturbed. The President acts in a wholly
different plane from that in which the Court acted.
He acts under a constitutional power, the nature of
which is entirely different from the judicial power
and cannot be regarded as an extension of it. and
this is so, notwithstanding that the practical effect
of the Presidential act is to remove the stigma of
guilt from the accused or to remit the sentence
imposed on him...

...It is apparent that the power under Article 72
entitles the President to examine the record of
evidence of the criminal case and to determine for
himself whether the case is one deserving the grant
of the relief falling within that power. We are of
opinion that the President is entitled to go into the
merits of the case notwithstanding that it has been
judicially concluded by the consideration given to it
by this Court.

...16. ...Indeed, it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised guidelines, for we must remember that
the power under Article 72 is of the widest
amplitude, can contemplate a myriad kinds and
categories of cases with facts and situations
varying from case to case, in which the merits and
reasons of State may be profoundly assisted by
prevailing occasion and passing time. And it is of

178
great significance that the function itself enjoys high
status in the constitutional scheme.702

6.2.7 Thus, it will be seen that clemency powers,
while exercisable for a wide range of considerations and
on protean occasions, also function as the final
safeguard against possibility of judicial error or
miscarriage of justice. This casts a heavy responsibility
on those wielding this power and necessitates a full
application of mind, scrutiny of judicial records, and
wide ranging inquiries in adjudicating a clemency
petition, especially one from a prisoner under a
judicially confirmed death sentence who is on the very
verge of execution.

6.2.8 The Ministry of Home Affairs, Government of
India, has drafted the "Procedure Regarding Petitions for
Mercy in Death Sentence Cases" to guide State
Governments and the prison authorities in dealing with
mercy petitions submitted by death sentence prisoners.
These rules were summarized by the Supreme Court in
Shatrughan Chauhan v. Union of India703 ('Shatrughan
Chauhan'):

98. The Ministry of Home Affairs, Government of
India has detailed procedure regarding handling of
petitions for mercy in death sentence cases:

98.1. As per the said procedure, Rule I enables a
convict under sentence of death to submit a petition
for mercy within seven days after and exclusive of
the day on which the Superintendent of Jail informs
him of the dismissal by the Supreme Court of his
appeal or of his application for special leave to
appeal to the Supreme Court.

98.2. Rule II prescribes procedure for submission of
petitions. As per this Rule, such petitions shall be
addressed to, in the case of the States, to the
Governor of the State at the first instance and

702 Kehar Singh v. Union of India, (1989) 1 SCC 204, at paras 7, 10 and 16.
703 (2014) 3 SCC 1.

179
thereafter to the President of India and in the case
of the Union Territories directly to the President of
India. As soon as the mercy petition is received, the
execution of sentence shall in all cases be
postponed pending receipt of orders on the same.

98.3. Rule III states that the petition shall in the first
instance, in the case of the States, be sent to the
State concerned for consideration and orders of the
Governor. If after consideration it is rejected, it shall
be forwarded to the Secretary to the Government of
India, Ministry of Home Affairs. If it is decided to
commute the sentence of death, the petition
addressed to the President of India shall be
withheld and intimation to that effect shall be sent
to the petitioner.

98.4. Rule V states that in all cases in which a
petition for mercy from a convict under sentence of
death is to be forwarded to the Secretary to the
Government of India, Ministry of Home Affairs, the
Lt. Governor/Chief Commissioner/Administrator or
the Government of the State concerned, as the case
may be, shall forward such petition, as
expeditiously as possible, along with the records of
the case and his or its observations in respect of any
of the grounds urged in the petition.

98.5. Rule VI mandates that upon receipt of the
orders of the President, an acknowledgment shall
be sent to the Secretary to the Government of India,
Ministry of Home Affairs, immediately in the
manner prescribed. In the case of Assam and
Andaman and Nicobar Islands, all orders will be
communicated by telegraph and the receipt thereof
shall be acknowledged by telegraph. In the case of
other States and Union Territories, if the petition is
rejected, the orders will be communicated by
express letter and receipt thereof shall be
acknowledged by express letter. Orders commuting
the death sentence will be communicated by
express letters, in the case of Delhi and by telegraph

180
in all other cases and receipt thereof shall be
acknowledged by express letter or telegraph, as the
case may be.

98.6. Rule VIII (a) enables the convict that if there is
a change of circumstance or if any new material is
available in respect of rejection of his earlier mercy
petition, he is free to make fresh application to the
President for reconsideration of the earlier order.

99. Specific instructions relating to the duties of
Superintendents of Jail in connection with the
petitions for mercy for or on behalf of the convicts
under sentence of death have been issued:

99.1. Rule I mandates that immediately on receipt
of warrant of execution, consequent on the
confirmation by the High Court of the sentence of
death, the Jail Superintendent shall inform the
convict concerned that if he wishes to appeal to the
Supreme Court or to make an application for special
leave to appeal to the Supreme Court under any of
the relevant provisions of the Constitution of India,
he/she should do so within the period prescribed in
the Supreme Court Rules.

99.2. Rule II makes it clear that, on receipt of the
intimation of the dismissal by the Supreme Court of
the appeal or the application for special leave to
appeal filed by or on behalf of the convict, in case
the convict concerned has made no previous petition
for mercy, the Jail Superintendent shall forthwith
inform him that if he desires to submit a petition for
mercy, it should be submitted in writing within
seven days of the date of such intimation.

99.3. Rule III says that if the convict submits a
petition within the period of seven days prescribed
by Rule II, it should be addressed, in the case of the
States, to the Governor of the State at the first
instance and, thereafter, to the President of India
and in the case of the Union Territories, to the
President of India. The Superintendent of Jail shall
181
forthwith dispatch it to the Secretary to the State
Government in the Department concerned or the Lt.
Governor/Chief Commissioner/Administrator, as
the case may be, together with a covering letter
reporting the date fixed for execution and shall
certify that the execution has been stayed pending
receipt of the orders of the Government on the
petition.

99.4. Rule IV mandates that if the convict submits
petition after the period prescribed by Rule II, the
Superintendent of Jail shall, at once, forward it to
the State Government and at the same time
telegraph the substance of it requesting orders
whether execution should be postponed stating that
pending reply sentence will not be carried out.

100. The above Rules make it clear that at every
stage the matter has to be expedited and there
cannot be any delay at the instance of the officers,
particularly, the Superintendent of Jail, in view of
the language used therein as "at once.

101. Apart from the above Rules regarding
presentation of mercy petitions and disposal
thereof, necessary instructions have been issued for
preparation of note to be approved by the Home
Minister and for passing appropriate orders by the
President of India.

102. The extracts from the Prison Manuals of
various States applicable for the disposal of mercy
petitions have been placed before us. Every State
has a separate Prison Manual which speaks about
detailed procedure, receipt placing required
materials for approval of the Home Minister and the
President for taking decision expeditiously. The
Rules also provide steps to be taken by the
Superintendent of Jail after the receipt of mercy
petition and subsequent action after disposal of the
same by the President of India. Almost all the Rules
prescribe how the death convicts are to be treated
till final decision is taken by the President of India.
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103. The elaborate procedure clearly shows that
even death convicts have to be treated fairly in the
light of Article 21 of the Constitution of India.
Nevertheless, it is the claim of all the petitioners
herein that all these rules were not adhered to
strictly and that is the primary reason for the
inordinate delay in disposal of mercy petitions. For
illustration, on receipt of mercy petition, the
Department concerned has to call for all the
records/materials connected with the conviction.
Calling for piecemeal records instead of all the
materials connected with the conviction should be
deprecated. When the matter is placed before the
President, it is incumbent on the part of the Home
Ministry to place all the materials such as judgment
of the trial court, High Court and the final court viz.
Supreme Court as well as any other relevant
material connected with the conviction at once and
not call for the documents in piecemeal.704

C. Standard of Judicial Review for Examining
Exercise of Mercy Powers

6.3.1 The Supreme Court has characterized the
nature of mercy provisions (Articles"72 and 161) as
constitutional duty rather than privilege or a matter of
grace. The Supreme Court observed the following in
Shatrughan Chauhan:

In concise, the power vested in the President under
Article 72 and the Governor under Article 161 of the
Constitution is a constitutional duty. As a result, it
is neither a matter of grace nor a matter of privilege
but is an important constitutional responsibility
reposed by the People in the highest authority. The
power of pardon is essentially an executive action,
which needs to be exercised in the aid of justice and
not in defiance of it. Further, it is well settled that
the power under Articles 72/161 of the Constitution

704 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 98-103.

183
of India is to be exercised on the aid and advice of
the Council of Ministers.705

6.3.2 The Supreme Court has further held in Epuru
Sudhakar v. Govt. of A.P.706 that the exercise of power
under Article 72 by the President and Article 161 by the
Governor is subject to limited form of judicial review.707
The Supreme Court has also held that the mercy
prerogative under Articles 72 and 161should be
discharged in line with the principle of rule of law, of
which fairness and legal certainty are essential
elements.708 Further, various decisions of the Supreme
Court have provided the following grounds for a
challenge to the exercise of these clemency powers:709

(a) Power has been exercised by the
Governor/President himself without being advised
by the Government,
(b) In the exercise of the power, the
Governor/President has transgressed his
jurisdiction,
(c) If the order passed in pursuance to Articles 72 or
161 betrays non-application of mind or mala fide
basis
(d) Power has been exercised on the basis of political
considerations
(e) That the order suffers from arbitrariness
(f) That the manner of exercise of power suffers from
the following defects:

705 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 19.
706 Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161.
707See also Narayan Dutt v. State of Punjab, (2011) 4 SCC 353, at paras 14-31; B.P.

Singhal v. Union of India, (2010) 6 SCC 331, at para 76; Shatrughan Chauhan v. Union
of India, (2014) 3 SCC 1, at para 22.
708 Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 65-67
709 See Maru Ram v. Union of India, (1981) 1 SCC 107, at paras 62-65; Epuru

Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 34-38; Narayan Dutt v. State of
Punjab, (2011) 4 SCC 353, at para 24; Shatrughan Chauhan v. Union of India, (2014)
3 SCC 1, at paras 23-24.

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 extraneous or wholly irrelevant consideration
have been taken into account;
 that relevant materials have been kept out of
consideration

D. Duty of Writ Courts Carrying Out Judicial
Review of Exercise of Mercy Powers

6.4 The Supreme Court has enjoined a critical
role in examining the discharge of mercy jurisdiction by
the executive authorities in death sentence matters. The
Court has termed this body of jurisprudence as "mercy
jurisprudence"710 and has linked it to the "evolving
standard of decency, which is the hallmark of the
society."711 In fact, the Court in Shatrughan Chauhan
observed that "judicial interference is the command of the
Constitution" when the exercise of mercy power by the
executive is lacking in due care and diligence and has
become whimsical.712 The Court has held the following
in Shatrughan Chauhan in this behalf:

242. In the aforesaid batch of cases, we are called
upon to decide on an evolving jurisprudence, which
India has to its credit for being at the forefront of the
global legal arena. Mercy jurisprudence is a part
of evolving standard of decency, which is the
hallmark of the society.

243. Certainly, a series of the Constitution Benches
of this Court have upheld the constitutional validity
of the death sentence in India over the span of
decades but these judgments in no way take away
the duty to follow the due procedure established by
law in the execution of sentence. Like the death
sentence is passed lawfully, the execution of the
sentence must also be in consonance with the
constitutional mandate and not in violation of the
constitutional principles.

710 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 242.
711 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 242.
712 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 244.

185
244. It is well established that exercising of power
under Articles 72/161 by the President or the
Governor is a constitutional obligation and not a
mere prerogative. Considering the high status of
office, the Constitution Framers did not stipulate
any outer time-limit for disposing of the mercy
petitions under the said Articles, which means it
should be decided within reasonable time.
However, when the delay caused in disposing of the
mercy petitions is seen to be unreasonable,
unexplained and exorbitant, it is the duty of this
Court to step in and consider this aspect. Right to
seek for mercy under Articles 72/161 of the
Constitution is a constitutional right and not at the
discretion or whims of the executive. Every
constitutional duty must be fulfilled with due care
and diligence, otherwise judicial interference is the
command of the Constitution for upholding its
values.

245. Remember, retribution has no
constitutional value in our largest democratic
country. In India, even an accused has a de
facto protection under the Constitution and it
is the Court's duty to shield and protect the
same. Therefore, we make it clear that when
the judiciary interferes in such matters, it
does not really interfere with the power
exercised under Articles 72/161 but only to
uphold the de facto protection provided by the
Constitution to every convict including death
convicts.713 (Emphasis supplied)

E. Subjectivity in Exercise of Power under Article
72 by the President

6.5.1 It is to be noted that in exercise of power
under Articles 72 and 161, the President or the
Governor, as the case may be, is to be guided and
directed by the "aid and advice" rendered by the Council
of Ministers under Articles 74 and 163. The Supreme

713 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 242-245.

186
Court has said so in categorical terms in Maru Ram v.
Union of India714 in the following paragraph:

Because the President is symbolic, the Central
Government is the reality even as the Governor
is the formal head and sole repository of the
executive power but is incapable of acting
except on, and according to, the advice of his
Council of Ministers. The upshot is that the
State Government, whether the Governor likes
it or not, can advice and act under Article 161,
the Governor being bound by that advice. The
action of commutation and release can thus be
pursuant to a governmental decision and the
order may issue even without the Governor's
approval although, under the Rules of
Business and as a matter of constitutional
courtesy, it is obligatory that the signature of
the Governor should authorise the pardon,
commutation or release. The position is
substantially the same regarding the President. It is
not open either to the President or the Governor to
take independent decision or direct release or
refuse release of anyone of their own choice. It is
fundamental to the Westminster system that the
Cabinet rules and the Queen reigns being too
deeply rooted as foundational to our system no
serious encounter was met from the learned
Solicitor-General whose sure grasp of fundamentals
did not permit him to controvert the proposition, that
the President and the Governor, be they ever so high
in textual terminology, are but functional
euphemisms promptly acting on and only on the
advice of the Council of Ministers have in a narrow
area of power. The subject is now beyond
controversy, this Court having authoritatively laid
down the law in Shamsher Singh case [Shamsher
Singh v. State of Punjab, (1975) 1 SCR 814 : (1974)
2 SCC 831 : 1974 SCC (L&S) 550]. So, we agree,
even without reference to Article 367(1) and
Sections 3(8)(b) and 3(60)(b) of the General
714 Maru Ram v. Union of India, (1981) 1 SCC 107.

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Clauses Act, 1897, that, in the matter of
exercise of the powers under Articles 72 and
161, the two highest dignitaries in our
constitutional scheme act and must act not on
their own judgment but in accordance with the
aid and advice of the ministers. Article 74,
after the 42nd Amendment silences
speculation and obligates compliance. The
Governor vis-à-vis his Cabinet is no higher than
the President save in a narrow area which
does not include Article 161. The
constitutional conclusion is that the Governor
is but a shorthand expression for the State
Government and the President is an
abbreviation for the Central Government.715
(Emphasis supplied)

6.5.2 While the President of India in considering a
mercy petition is constitutionally obligated to not
deviate from the advice rendered by the Council of
Ministers, there have been occasions where the
President has refrained from taking any decision
altogether on the said mercy petition, thus, keeping the
matter pending. In the table below, the record of mercy
petitions disposed by various Presidents till date is
discussed:716

Table 6.1. Details of Mercy Petitions Decided by
the President
S. Name of the President Tenure Number Number Total
No. of Mercy of Mercy
Petitions Petitions
Accepted Rejected
1 Rajendra Prasad 26.1.1950 180 1 181
- 3.5.1962
2 SarvapalliRadhakrishnan 13.5.1962 57 0 57
-

13.5.1967 3 ZakirHussain 13.5.1967 22 0 22

- 3.5.1969 715Maru Ram v. Union of India, (1981) 1 SCC 107, at para 61. 716This table is based on archival research and RTI data collected by Bikram Jeet Batra and others. Official figures of mercy petitions disposed of by the Presidents at serial nos. 1-9 are not available, and the figures in the table are based on empirical verification from the archives which may not be complete.

188

4 V.V. Giri 3.5.1969 - 3 0 3 20.7.1969;

24.8.1969

24.8.1974 5 Fakrudhin Ali Ahmed 24.8.1974 NA NA 0

11.2.1977 6 N Sanjeeva Reddy 25.7.1977 NA NA 0

- 5.7.1982 7 Zail Singh 25.7.1982 2 30 32

25.7.1987 8 R. Venkatraman 25.7.1987 5 45 50

25.7.1992 9 S.D. Sharma 25.7.1992 0 18 18

25.7.1997 10 K.R. Narayanan 25.7.1997 0 0 0

25.7.2002 11 A.P.J Kalam 25.7.2002 1 1 2

25.7.2007 12 PratibhaPatil 25.7.2007 34 5 39

25.7.2012 13 Pranab Mukherjee 25.7.2012 2 31 33

     Total                              306   131    437


6.5.3      During the period 1950-1982, which saw six

Presidents, only one mercy petition was rejected as against 262 commutations of death sentence to life imprisonment. As per available records, President Rajendra Prasad commuted the death sentences in 180 out of the 181 mercy petitions he decided, rejecting only one. President Radhakrishnan commuted the death sentences in all the 57 mercy petitions decided by him. President Hussain and President Giri commuted the death sentence in all the petitions decided by them, while President Ahmed and President Reddy did not get to deal with any mercy petitions in their tenure.

6.5.4 In contrast to the first phase (1950-1982), between 1982 and 1997, three Presidents rejected, between then, 93 mercy petitions and commuted seven death sentences. President Zail Singh rejected 30 of the 32 mercy petitions he decided, and President 189 Venkatraman rejected 45 of the 50 mercy petitions decided by him. Subsequently, President Sharma rejected all the 18 mercy petitions put up before him.

6.5.5 In what can be called the third phase i.e. 1997-2007, the two Presidents kept almost all the mercy petitions received by them from the government of the day pending, and only two mercy petitions were decided during this period. While President Narayanan did not take any decision on any mercy petition before him, President Abdul Kalam acted only twice during his tenure resulting in one rejection and another commutation. During their combined tenure of ten years, they put the brakes on the disposal of mercy petitions.

6.5.6 Later, President Pratibha Patil during her Presidency rejected five mercy petitions, and commuted 34 death sentences. The current President of India, Shri Pranab Mukherjee has thus far rejected 31 of the 33 mercy petitions decided by him.

6.5.7 A perusal of the chart of mercy petitions disposed by Presidents suggests that a death-row convict's fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.

F. Judicial Review of Exercise of Mercy Powers 6.6.1 The Supreme Court in Shatrughan Chauhan has recorded that the Home Ministry considers the following factors while deciding mercy petitions:

(a) Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);

(b) Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;

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(c) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;

(d) Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;

(e) Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;

(f) Consideration of evidence in fixation of responsibility in gang murder case;

(g) Long delays in investigation and trial etc.717 6.6.2 However, when the actual exercise of the Ministry of Home Affairs (on whose recommendations mercy petitions are decided) is analysed, it is seen that many times these guidelines have not been adhered to.

Writ Courts in numerous cases have examined the manner in which the executive has considered mercy petitions. In fact, the Supreme Court as part of the batch matter Shatrughan Chauhan case heard 11 writ petitions challenging the rejection of the mercy petition by the executive. Some of these decisions are analysed in the following pages.

(i) Chronic Mental Illness Ignored: The Case of Sunder Singh718 6.6.3 Sunder Singh was sentenced to death for having burnt five of his relatives alive. His mercy petition was dismissed by the Governor on 21.1.2011, and then by the President on 31.3.2013, even though he had stated in his mercy petition that he had committed the offences under the influence of mental illness. This claim was corroborated by the jail records, which showed that due to his abnormal behavior he had been presented before numerous medical boards 717Shatrughan Chauhan v. Union of India,(2014) 3 SCC 1, at paras 55-56.

718Sunder Singh's Writ [Writ Petition (Crl.) No. 192/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 79-87 for discussion on law, and paras 178-195 for the outcome in Writ Petition (Crl.) No. 192/2013.

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consisting of government psychiatrists who had opined that he was suffering from chronic schizophrenia and required long term treatment. This information had been periodically communicated to the State Government and the Ministry of Home Affairs, Government of India, who nevertheless chose to reject his mercy petitions. He was eventually found to be "not mentally fit to be awarded the death penalty"719 by a team of psychiatrists appointed by the State Government and his death sentence was commuted by the Supreme Court.

(ii) Cases involving Long delays in Investigation and Trial a. The Case of Gurmeet Singh720 6.6.4 When a convict on death row has already spent a considerable period of time in prison, before the mercy plea is decided by the President, it becomes a strong factor in deciding whether or not such a prisoner still deserves the additional punishment of execution.

6.6.5 Gurmeet was arrested on 16.10.1986, convicted and sentenced to death by the trial court on 20.7.1992. The High Court confirmed his death sentence (per majority) on 8.3.1996, and the Supreme Court upheld the conviction and death sentence on 28.9.2005. The convict's mercy petition was decided on 1.3.2013, by which time he had spent 27 years in custody, of which about 21 years were under a death sentence. These factors were ignored and his mercy petition was rejected. The Supreme Court in Shatrughan Chauhan commuted the death sentence of Gurmeet Singh on account of inordinate time taken by the executive in disposal of his mercy petition.

719Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 190. 720Gurmeet Singh's Writ [Writ Petition (Crl.) No. 193/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 148-16 for the outcome in Writ Petition (Crl.) No. 193/2013. See also Gurmeet Singh v. State of U.P., (2005) 12 SCC 107.

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 b.      The Cases of Simon and Others721

6.6.6      Simon, Bilavendran, Gnanprakasam and

Madiah were arrested on 14.7.1993, and convicted by the trial court under the Terrorist and Disruptive Activities (Prevention) Acton 29.9.2001. They were sentenced to life imprisonment. The state appealed to the Supreme Court for enhancement of sentence, but its special leave petition was dismissed due to delay. When the criminal appeal filed by the convicts was being heard, the Supreme Court, suo motu, issued notice for enhancement of sentence, and then sentenced the convicts to death on 29.1.2004. This was the first time the convicts had been sentenced to death, and since it had been done by the Supreme Court there was no appeal possible after this. When the convict's mercy pleas were decided 9 years later, they had already spent 19 years and 7 months in custody in prison. Simon, Bilavendran, Gnanprakasam and Madiah were aged 50, 55, 60 and 64 years when their mercy petitions were rejected by the President on 8.2.2013 after a delay of about 9 years. Their petitions were finally allowed by the Supreme Court.

(iii) Partial and Incomplete Summary Prepared for President: The Case of Mahendra Nath Das722 6.6.7 When Mahendra Nath Das challenged the rejection of his mercy petition by the President, the Supreme Court summoned the records relating to the mercy petition and discovered that the recommendation for clemency made by a former President in this very case was not put before or communicated to the President Pratibha Patil when she was asked to reject the mercy petition. The Supreme Court held it to be a very serious lapse, and, combined with the 11 years delay taken in the disposal of the mercy petition, was 721 Writ preferred by Simon and others [(Writ Petition (Crl.) No. 34/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC

1. See paras 120-137 for the outcome in the said Writ Petition (Crl.) No. 34/2013. See also Simon v. State of Karnataka, (2004) 2 SCC 694. 722 Mahendra Nath Das v. Union of India, (2013) 6 SCC 253.

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good enough reason to quash the rejection of the mercy petition and commute the death sentence.

(iv) Non-Application of Mind a. The Case of Dhananjoy Chatterjee723 6.6.8 In the case of Dhananjoy Chatterjee, when the Governor was advised to reject the mercy petition, he was not informed about the mitigating circumstances of the case. The Supreme Court held the same to be a serious error, which had prejudiced the convict, and consequently quashed the rejection of the mercy petition. However, the mercy petition preferred by Dhananjoy Chatterjee was subsequently rejected by the executive and he was executed.

b. The Case of Bandu Baburao Tidke724 6.6.9 Tidke's mercy petition was received in the Ministry of Home Affairs in 2007. On 2.6.2012, it was decided to commute his death sentence. However, unknown to the President, the Ministry of Home Affairs and the State Government, Tidke had expired in prison about five years earlier on 18.10.2007 while awaiting a verdict on his mercy plea. His mercy petition had been decided without obtaining updated information from the prison authorities or the State Government, raising questions about the diligence exercised and procedures in adjudicating mercy petitions.

(v) Mercy Petition Rejected Without Access to Relevant Records of the Case: The Case of Praveen Kumar725 6.6.10 Even though Rule V of the Mercy Petition Rules specifically requires that the entire record be sent to the Central Government when it is deciding the mercy 723 Dhananjoy Chatterjee v. State of W.B., (2004) 9 SCC 751. 724 Bandu Baburao Tidke v. State of Karnataka (Unreported Order in SLP Crl. 3048 of 2006) dated 10.7.2006.

725 Praveen Kumar's Writ [Writ Petition (Crl.) No. 187/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 139-141 for the outcome in the Writ Petition(Crl.) No. 187/2013.

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petition, and even though the Guidelines used by the Ministry of Home Affairs clearly requires the close scrutiny of the record, in many cases it has been found that the Central Government has rejected a convict's mercy petition without reading or obtaining the trial court record.

6.6.11 For example, in Praveen Kumar's case, the Supreme Court found that his mercy petition had been rejected by the Central Government and the President without reading or obtaining the record of the trial court. Consequently, no attention at all was paid to the mitigating circumstances in this case or the circumstances relating to the convict which are necessary for adjudication of mercy petitions as per the Ministry of Home Affairs' guidelines.

(vi) Wrongful Executions and Failure of the Clemency Process

(a) The Case of Jeeta Singh726 6.6.12 The case of Jeeta Singh has been discussed in the previous chapter, but is of relevance here as well. Jeeta Singh, Harbans Singh and Kashmira Singh were sentenced to death by the trial court for equal roles in an offence of murder. The High Court confirmed their death sentences. Each of them filed separate appeals to the Supreme Court which came up for hearing before different Benches. Jeeta's special leave petition ('SLP') was dismissed on 15.4.1976. Kashmira's SLP was admitted on the question of sentence, and on 10.4.1977 his appeal was allowed and the death sentence was commuted by the Supreme Court. Harbans Singh's SLP was dismissed on 16.10.1978. His review petition was dismissed on 9.5.1980, and his mercy petition was rejected by the President on 22.8.1981. While rejecting Harbans and Jeeta's mercy petitions, the executive did not note that the Supreme Court had allowed the appeal and had commuted the death sentence of an identically placed co-accused (Kashmira Singh) more than 4 years 726 Harbans Singh v. State of U.P., (1982) 2 SCC 101.

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earlier. Harbans Singh and Jeeta Singh were scheduled for execution on 6.10.1981. Harbans Singh once again appealed to the Supreme Court by way of an Article 32 petition, and was saved. Jeeta did not, and was hanged.727

(b) The Cases of Ravji Rao728 and Surja Ram729 6.6.13 Cases of Ravji Rao and Surja Ram have been discussed in the previous chapter. Here, the focus is how their mercy petitions were dealt with by the executive.

6.6.14 In Ravji @ Ram Chandra v. State of Rajasthan ('Ravji'),730 a case which was decided by a Bench of two judges, the Supreme Court explicitly held:

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.731 6.6.15 Thus, the Court while confirming the death sentence in Ravji's case held that the circumstances relating to the criminal are irrelevant and focused exclusively on the circumstances relating to the crime.

This aspect of the decision in the Ravji's case is in direct conflict with the Bachan Singh ruling where the Court held that which held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight.732 As noted in the previous chapter, the Court in Santosh Kumar Bariyar v. State of Maharashtra ('Bariyar') noticed the conflict between Ravji's case and Bachan Singh and noted the Ravji decision as a per incuriam judgment.

727 Harbans Singh v. State of U.P., (1982) 2 SCC 101. See also Bachan Singh v. State of Punjab, (Justice Bhagwati's dissent), (1982) 3 SCC 24, at para 71, where he termed Harbans Singh's case as "the most striking example of freakishness in imposition of death penalty".

728 Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175. 729 Surja Ram v. State of Rajasthan, (1996) 6 SCC 271. 730 (1996) 2 SCC 175.

731 Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, at para 24. 732 Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 161.

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6.6.16 Though Ravji was sentenced to death on the basis of a per incuriam judgment, his mercy petition was rejected in a mere 8 days on 19.3.1996 and he was executed on 4.5.1996. Similarly, the mercy petition of Surja Ram, who was also wrongly sentenced to death on the same reasoning, was executed on 7.4.1997. His mercy petition was rejected in 14 days on 7.3.1997.

(vii) Cases of Other Prisoners Sentenced to Death under Judgments Subsequently Declared to be Per Incuriam 6.6.17 The Supreme Court in the recent years has found a number of decisions, which have resulted in death sentences to be per incuriam. This aspect has also been dealt with in the previous chapter.733

(a) Cases which have placed reliance on the Per Incuriam Decision of Ravji 6.6.18 In Bariyar, the Supreme Court, after pointing out the error in Ravji's case, also noted 6 other cases where Ravji's case was followed and held that these decisions were also wrongly decided:

Shivaji v. State of Maharashtra, Mohan Anna Chavan v. State of Maharashtra, Bantu v. State of U.P, Surja Ram v. State of Rajasthan, Dayanidhi Bisoi v. State of Orissa and State of U.P. v. Sattan are the decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.734 6.6.19 The Court, in Bariyar, observed that it is clear that none of the circumstances relating to the 13 733 Refer to Table 5.1 for an exhaustive list of prisoners from all such cases which have been rendered per incuriam.

734 Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 63.

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convicts in these six cases have been brought on record and considered by the Supreme Court during the sentencing deliberations. The cases mentioned above have been declared to be per incuriam in Bariyar by the Supreme Court for having followed Ravji. Another case, Ankush Maruti Shinde and Ors v. State of Maharashtra,735 where six prisoners were sentenced to death by explicitly following Ravji's wrong reasoning like the cases mentioned above, was decided just a few days before Bariyar and was therefore not noticed in that decision.

6.6.20 Subsequent to Bariyar, the Supreme Court again in Dilip Tiwari v. State of Mahrashtra736 raised the issue of error committed in Ravji's case and other cases in which Ravji was followed. The Supreme Court in Rajesh Kumar v. State737 once again emphasized the miscarriage of justice caused in the Ravji Rao case, and other cases, which followed the Ravji's precedent. Thereafter, the Supreme Court in Mohinder Singh v. State of Punjab,738 has held that Ravji's case and those following it have been wrongly decided.

        (b)     The Case of Saibanna739

6.6.21    The Supreme Court in Aloke Nath and

Bariyar has doubted the award of death sentence in Saibanna v. State of Karnataka ('Saibanna'). The facts of the case bear out that Saibanna had killed his first wife as he suspected that she was unfaithful to him. He was convicted and sentenced to life imprisonment on 2.2.1993. He re-married whilst he was out of the prison on parole. Later, on 13.9.1994 when he was again released on parole, he killed his second wife as well suspecting that she too was unfaithful to him. In 1995 he was charged under Section 303 IPC, which prescribed the mandatory death sentence, even though the Section had already been struck down by the 735 (2009) 6 SCC 667 at para 28.

736 Dilip Tiwari v. State of Mahrashtra, (2010) 1 SCC 775, at para 68. 737 Rajesh Kumar v. State, (2011) 13 SCC 706, at paras 66-70. 738 Mohinder Singh v. State of Punjab, (2013) 3 SCC 294, at para 37. 739 Saibanna v. State of Karnataka, (2005) 4 SCC 165.

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Supreme Court in Mithu v. State of Punjab ('Mithu').740 The High Court proceeded to confirm the death sentence under Section 303 IPC. The Supreme Court in appeal upheld the judgment.741 The Court held that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment.

6.6.22 Subsequently, the Supreme Court in Aloke Nath Dutta v. State of West Bengal742 held that the view taken in the petitioner's case by the Supreme Court was "doubtful". Thereafter, in Bariyar, the Court held that its judgment in Saibanna was "inconsistent with Mithu and Bachan Singh,"743 both of which are judgments by Constitution Benches. This admission of error in Saibanna's case by the Supreme Court was also brought to the notice of the President by 14 retired judges (including one former Supreme Court judge, five former Chief Justices of different High Courts, and eight former High Court judges). The President rejected Saibanna's mercy petition on 4.1.2013.

(c) Decisions held to be Per Incuriam by Sangeet and Khade 6.6.23 Similarly, the Supreme Court in Shankar Khade doubted the correctness of the imposition of the death penalty in Dhananjoy Chatterjee v. State of West Bengal,744 where the Court had held that "the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals."745 In Khade, the Court opined that prima facie the judgment had not accounted for 740 Mithu v. State of Punjab, (1983) 2 SCC 277. 741 Saibanna v. State of Karnataka, (2005) 4 SCC 165. 742 Aloke NathDutta v. State of West Bengal, (2007) 12 SCC 230, at paras 149-50. 743 Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at paras 49-52. 744 (1994) 2 SCC 220.

745 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15. The exclusive focus of this decision on the crime and not the aspects pertaining to the convict was questioned in Khade.

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mitigating circumstances relating to the offender. Dhananjoy Chatterjee was executed in 2004.

6.6.24 Similarly, in Sangeet, the Court noted an additional three cases where Bachan Singh's direction to consider both aggravating and mitigating circumstances had not been followed.746 G. Constitutional Implications of Pain and Suffering Imposed on Convicts on Death Row in the Pre-Execution Phase 6.7.1 In India, death row convicts typically spend many years by the time they exhaust their criminal appeals. Once the death sentence is finally confirmed by the Supreme Court, a convict further waits for years on end waiting to hear from the Governor and the President of India on the mercy petition preferred by him. More often than not, death row convicts are shifted to solitary confinement as soon as the trial court awards them death sentence and are also exposed to multiple execution warrants.

6.7.2 A prisoner under a sentence of death ekes out an existence under the hangman's noose and suffers from extreme agony, anxiety and debilitating fear of an impending execution and uncertainty regarding the same. The amalgam of such unique circumstances produces physical and psychological conditions of near- torture for the death row convict.747 This experience thus endured by a prisoner on the death row is also termed as 'death row phenomena'.

6.7.3 One of the main components of the death row phenomena pertain to the unique stresses of living under a sentence of death which includes the convict's mental anguish of anticipating the impending execution. The passage of every moment also presents the convict with a prospect of hope, which in turn 746 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37; Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317.

747 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 61.

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produces constant mental struggle as to whether he will eventually live or not.

6.7.4 Further, the death row phenomenon is compounded by the degrading effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions.

6.7.5 Constitutionally, the question relate to implications flowing from a scenario where a death row convict prior to execution of his death sentence is subjected to a prolonged period of imprisonment where he suffers from anguish, rising levels of agony and stress arising out of living in the ever-present shadow of the noose. The question is whether this dehumanizing and degrading experience borne by the convict constitutes a legal condition which can have the effect of rendering the subsequent execution of death sentence impermissible.

6.7.6 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu748 and thereafter in Sher Singh v. State of Punjab749 ('Sher Singh') and Triveniben v. State of Gujarat750 ('Triveniben') has recognized the degrading and dehumanizing nature of the suffering endured by a death row convict on account of prolonged delay in the execution of his death sentence. The Court has treated prolonged delay as a "supervening circumstance" which has the effect of rendering the sentence of death inexecutable.

6.7.7 Over the years, an international consensus has emerged around the fact that execution after avoidable delay under the harsh conditions of death row constitutes cruel and excessive punishment.751 748 (1983) 2 SCC 68.

749 (1983) 2 SCC 344.

750 (1989) 1 SCC 678.

751 Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989); Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995); Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993).The Privy Council in Pratt [1994] 2 A.C. 33 held that "it was torture, far more cruel that death itself, for a person 201

(i) Enduring Long Years on Death Row 6.7.8 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu ('Vatheeswaran'),752 sets the due process bar very high for an execution to be allowed to be carried out after imposition of an otherwise valid death sentence. The Court in Vatheeswaran for the first time recognized the constitutional implications flowing from the unique nature of suffering and pain implicit in pre-execution imprisonment of a convict on death row waiting for the hanging to take place. The Supreme Court in Vatheeswaran based its analysis on the fact that Article 21 inheres in the prisoner till his last breath and even while the noose is being fastened around his neck. The Court also observed that other than the mass of suffering a prisoner has to endure on account of living for years in the shadow of death sentence, avoidable delay also makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violative of procedural due process guarantees enshrined under Articles 21 , 14 and 19.753 The Court in Vatheeswaran captures the injury done to Article 21 rights of the convict in following terms:

11. While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay.

to be kept on death row in a state of suspended animation, knowing that on any day the authorities could carry out their announced intention to deliberately extinguish life." 752 (1983) 2 SCC 68.

753 T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at para 20; Sher Singh v.

State of Punjab, (1983) 2 SCC 344, at para 23; Jagdish v. State of M.P., (2009) 9 SCC 495, at paras 48-49.

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12. What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death? Let us turn at once to Article 21 of the Constitution, for, it is to that Article that we must first look for protection whenever life or liberty is threatened. Article 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The dimensions of Article 21 which at one time appeared to be constricted by A.K. Gopalan v. State of Madras [AIR 1950 SC 27] have been truly expanded by Maneka Gandhi v. Union of India [(1978) 1 SCC 248] and Sunil Batra v. Delhi Administration [(1978) 4 SCC 494].754 (Emphasis supplied) 6.7.9 The Court while siding with the dissenting opinion of Lord Scarman and Lord Brightman in the Privy Council decision in Noel Riley v. Attorney- General,755 held that prolonged delay in the execution of a death sentence contravenes Article 21 rights of the convict regardless of the cause and nature of delay. The Court held that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death."756 In other words, the Vatheeswaran limit of two years did not treat judicial delay differently from clemency delay i.e. the Court in Vatheeswaran extended this protection also to delays caused during trial and appeal. This aspect of Vatheeswaran came to be doubted by a three judge Bench of Sher Singh.757 The Court observed in Sher Singh that the appellate courts in normal course take upto four or five years to process appeals apart from the time spent by the Constitutional authorities under Articles 72 and 161 in considering the mercy petitions. The Court in Sher Singh therefore, departed from the rule of thumb approach (of 2 years) 754 T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at paras 11-12. 755 1982 Criminal Law Review 679.

756 T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at para 21. 757 Sher Singh v. State of Punjab, (1983) 2 SCC 344.

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propounded by the Vatheeswaran Court and held that no pre-determined period of delay can be held to guarantee frustration of death sentence.

6.7.10 A Constitution Bench of the Supreme Court in Triveniben,758 also found favour with the conclusions arrived at by the Court in Sher Singh. The Court in Triveniben held that a death row convict while waiting for his appeal to be taken up in the appellate life cycle still has a "ray of hope" of getting a favourable judicial order. The Court held that in such circumstances where appeal is still pending, the convict does not suffer from mental torture of waiting for an eventual execution as the sentence of death has not yet become a sure certainty. The Triveniben Court in certain terms held that the delay for the purpose of an Article 21 claim made by the convict could only be said to kick in once the judicial process has come to an end after the Supreme Court has dismissed the appeal.759 6.7.11 The Supreme Court in Sher Singh also held that in such Article 32 petitions a death row convict cannot be allowed to take advantage of delay which is caused on account of proceedings filed by him to delay the execution. The Court held that the equitable basis of a prisoner's plea for commutation in such a case is compromised if he has in any away contributed to the delay caused in disposal of his mercy petition.760 a. Revised Standard of Delay in Pratt 6.7.12 The Supreme Court in Sher Singh and thereafter in Triveniben purportedly rationalized the law on degrading punishment on account of avoidable delay in execution by pushing time taken in the appellate proceedings out of the delay calculation. It also forbids the convict to claim benefit for delay caused on account 758 Triveniben v. State of Gujarat, (1989) 1 SCC 678. 759 Sher Singh v. State of Punjab, (1983) 2 SCC 344, at paras 18-19; Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 16; Triveniben v. State of Gujarat, (1988) 4 SCC 574, at para 2.

760 Triveniben v. State of Gujarat, (1989) 1 SCC 678, at paras 17, 23; Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 48.

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of proceedings preferred by him. It is to be noted that the Supreme Court in Sher Singh cited the common experience of disposal of appeals before the High Court and the Supreme Court to be four or five years on this count. However, the international norms on this count have since undergone change.

6.7.13 A decade after the decision in Noel Riley v. Attorney-General761 came out, the Privy Council reversed itself in Pratt and Others v. AG of Jamaica ('Pratt')762, citing the Indian Supreme Court decisions in Vatheeswaran, Sher Singh and Triveniben, and recognized that prolonged delay renders the death sentence too inhuman and degrading to be executed. But in doing so, the Privy Council presented a wholesome understanding of delay. The Privy Council today does not make a distinction on the basis of nature of delay and causes of delay while considering the oppressive effect of long years of wait on the death row prisoner. The focus of the Privy Council is only on the human rights implications flowing from the delayed execution. The Privy Council in Pratt noticed the shift in Indian law from Vatheeswaran to Triveniben on the aspect of definition of delay constituting degrading punishment and sided with the former. The Privy Council held:

In India, where the death penalty is not mandatory, the appellate court takes into account delay when deciding whether the death sentence should be imposed. In Vatheeswaran v. State of Tamil Nadu Chinnappa Reddy J. said at page 353:-

....The court held that delay exceeding two years in the execution of a sentence of death should be sufficient to entitle a person under sentence of death to demand the quashing of his sentence on the ground that it offended against Article 21 of the Indian Constitution which provides "No person shall be deprived 761 Noel Riley v. Attorney-General, 1982 Criminal Law Review 679. 762 [1994] 2 AC 1.

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of his life or personal liberty except according to procedure established by law."

In Sher Singh and Others v. The State of Punjab the court held:

"Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule that 'delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death' can be laid down as has been in Vatheeswaran."

The court pointed out that to impose a strict time limit of two years would enable a prisoner to defeat the ends of justice by pursuing a series of frivolous and untenable proceedings.

In Smt. Treveniben v. State of Gujarat(1989) 1 S.C.J. 383 the Supreme Court of India approved the judgment in Sher Singh v. The State of Punjab and held that a sentence of death imposed by the "Apex Court", which will itself have taken into account delay when imposing the death sentence, can only be set aside thereafter upon petition to the Supreme Court upon grounds of delay occurring after that date. Oza J. said, at page 410:-

"If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed."

In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after 206 sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence. (Emphasis supplied) 6.7.14 The two-year standard set out by the Supreme Court in Vatheeswaran was neither sensitive to the distinction between executive delay in consideration of mercy petitions and judicial delays nor to the delay caused on account of litigation efforts of the prisoner. The Supreme Court in Vatheeswaran, like the Privy Council now in Pratt, took a principled position on the consequences and the effect of avoidable delay on a death row convict. However, the Vatheeswaran decision, which served as a positive precedent for the Privy Council decision in Pratt, stands overruled today. The law as crystallized in Triveniben does not recognize pending appeals as actionable delay in terms of the death row phenomenon.

(b) Delayed Execution serves No Penological Purpose and is, therefore, Excessive 6.7.15 The Supreme Court has also held that delayed execution of the death sentence does not serve any of the penal purposes originally expected of it at the time the court confirmed the same on the convict. A delayed death sentence to that extent only embodies mindless and medieval retributive quality which offends the present civilizational norms of punishment. The 207 Supreme Court in Jagdish v. State of M.P.,763 invoked the embargo against cruel and unusual punishment in Eighth Amendment to the US Constitution to rule that delayed executions fail to serve both the retributive and deterrence rationales of death penalty. The Court observed:

43. ...Penologists and medical experts agreed that the process of carrying out a verdict of death is often so degrading and brutalising to the human spirit as to constitute psychological torture. Relying on Coleman v. Balkcom [68 L Ed 2d 334 : 451 US 949 (1981)] , US at p. 952 the Court observed that "the deterrent value of incarceration during that period of uncertainty may well be comparable to the consequences of the ultimate step itself" and when the death penalty "ceases realistically to further these purposes, ... its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment." The Courts have, however, drawn a distinction whereby the accused himself has been responsible for the delay by misuse of the judicial process but the time taken by the accused in pursuing legal and constitutional remedies cannot be taken against him.

44. It has been repeatedly emphasised that the death sentence has two underlying philosophies:

(1) that it should be retributive, and (2) it should act as a deterrent and as the delay has the effect of obliterating both the above factors, there can be no justification for the execution of a prisoner after much delay. Some extremely relevant 763 (2009) 9 SCC 495.

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observations have been quoted above from Coleman v. Balkcom [68 L Ed 2d 334 : 451 US 949 (1981)] , US at p. 952.

45. While examining the matter in the background of the Eighth Amendment to the US Constitution which provides that:

"excessive bail should not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted"

it has been observed that though the death penalty was permissible, its effect was lost in case of delay (Gregg v. Georgia [49 L Ed 2d 859 : 428 US 153 (1976)] )764

(ii) Illegal Solitary Conditions of Detention 6.7.16 The Supreme Court outlawed the practice of solitary confinement in 1978 in Sunil Batra v. Delhi Administration ('Sunil Batra').765 Solitary confinement was defined by the Supreme Court as confinement of a prisoner in a single cell apart from other prisoners.766 The Supreme Court in Sunil Batra observed that solitary confinement, absent a specific judicial order, may only be imposed when a prisoner is under an executable sentence of death, i.e. after his mercy petition has been rejected by the President, and even then under severe restrictions and modifications. The Court held:

118. It follows that during the pendency of a petition for mercy before the State Governor or the President of India the death sentence shall not be executed. Thus, until rejection of the clemency motion by these two high dignitaries it is not possible to predicate that there is a self executory death sentence. Therefore, a prisoner becomes legally subject to a self-working sentence of death only when the clemency application by the 764 Jagdish v. State of M.P., (2009) 9 SCC 495, at paras 43-45. 765 (1978) 4 SCC 494.

766 Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, at paras 91-92.

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prisoner stands rejected. Of course, thereafter Section 30(2) [of Prison Act] is attracted. A second or a third, a fourth or further application for mercy does not take him out of that category unless there is a specific order by the competent authority staying the execution of the death sentence.767 6.7.17 While the illegality of solitary confinement has been made amply clear by the Supreme Court in more than one decision, the practice is still rampant especially for prisoners on the death row. In Shatrughan Chauhan, relying upon the Sunil Batra decision, the Supreme Court lamented about the existence of widespread use of solitary confinement for prisoners on death row and urged the prison authorities to implement the Sunil Batra decision in spirit. The Supreme Court observed:

91. Even in Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248] , this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] and would amount to inflicting "additional and separate" punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 :

1979 SCC (Cri) 155] .768 (Emphasis supplied) 767 Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, at para 118. 768 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 91.

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6.7.18 The Supreme Court in Ajay Kumar Pal v.

Union of India,769 noticed that the convict was subjected to solitary confinement while he was on death row. The Court on account of delay in disposal of mercy petition by the executive authorities and imposition of solitary confinement, commuted the death sentence to life imprisonment.

6.7.19 Likewise, solitary confinement was also considered as a relevant supervening circumstance in the case of Peoples' Union of Democratic Rights v. Union of India & Others,770 where the death sentence of prisoner was commuted.

H. Conclusion 6.8.1 The executive's mercy powers cure defects of arbitrary and erroneous death sentences, and provide an additional bulwark against miscarriages of justice. Therefore, cases found unfit for mercy merit capital punishment. Mercy powers are thus a safeguard and necessary precondition for the death penalty.

6.8.2 When the writ courts in pursuance of judicial review powers, on a relative routine basis, find decisions of the executive to reject mercy petitions to be vitiated by procedural violations, arbitrariness and non- application of mind, the safeguard of mercy powers appears to not be working very well.

6.8.3 It is also distressing to note that the death row prisoners are routinely subjected to an extraordinary amalgam of excruciating psychological and physical suffering arising out of oppressive conditions of incarceration and long delays in trial, appeal and thereafter executive clemency. Despite repeated attempts by death row prisoners to invoke judicial review remedies to secure commutations on account of penal transgressions by the executive authorities, the practice of solitary confinement and 769 (2014) 13 SCALE 762.

770 2015 (2) ADJ 398.

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long delays seem to continue unabated. It is the view of the Commission that the death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India.

6.8.4 Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment. The lingering nature of this suffering is triggered as soon as any court sentences a prisoner to death, and therefore extends beyond the limited number of prisoners who come close to an execution after having lost in the Supreme Court and in the mercy petition phase as well.

6.8.5 The capital punishment enterprise as it operates in India, therefore perpetrates otherwise outlawed punitive practices that inflict pain, agony and torture which is often far beyond the maximum suffering permitted by Article 21. The debilitating effects of this complex phenomenon imposed on prisoners what can only be called a living death.

6.8.6 While the illegalities pertaining to death row phenomenon in a particular case may be addressed by the writ courts commuting the death sentence, the illegal suffering which the convicts have been subjected to while existing on death row casts a long shadow on the administration of penal justice in the country.

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CHAPTER - VII CONCLUSIONS AND RECOMMENDATION A. Conclusions 7.1.1 The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole of life subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years.771 7.1.2 Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of "an eye for an eye, tooth for a tooth" has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals. 7.1.3 In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases. The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme also be established. The need for police reforms for better and 771Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC. 600; Maru Ram v. Union of India, (1981) 1 SCC 107. For remission rules, see for example, Category 6 in Maharashtra's "Guidelines for Premature Release" dated 15.3.2010.

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more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.

7.1.4 In the last decade, the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing in death penalty cases. The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied. In the Court's own words "extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle". The Court has also acknowledged erroneous imposition of the death sentence in contravention of Bachan Singh guidelines. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being "arbitrarily and freakishly imposed".

7.1.5 There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardization or categorization of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.

7.1.6 Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains 214 fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.

7.1.7 Clemency powers usually come into play after a judicial conviction and sentencing of an offender. In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence which was not placed before the courts.772 Clemency powers, while exercisable for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice. This casts a heavy responsibility on those wielding this power and necessitates a full application of mind, scrutiny of judicial records, and wide ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution. Further, the Supreme Court in Shatrughan Chauhan773 has recorded various relevant considerations which are gone into by the Home Ministry while deciding mercy petitions.

7.1.8 The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive 772Kehar Singh v. Union of India, (1989) 1 SCC 204 paras 7, 10 and 16 773ShatrughanChauhan v. Union of India, (2014) 3 SCC 1, at paras 55-56.

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has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible. 7.1.9 Safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment. The Courts' attempts to constitutionally discipline the execution of the death sentence has not always borne fruit.

7.1.10 Death row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency. During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution. The Supreme Court has acknowledged that an amalgam of such unique circumstances produces physical and psychological conditions of near-torture for the death row convict.774 Further, the death row phenomenon is compounded by the degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions. The death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India. Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment.

7.1.11 In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations. That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty. The international trend towards successful and sustained abolition also 774Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 61.

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confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.

B. Recommendation 7.2.1 The Commission recommends that measures suggested in para 7.1.3 above, which include provisions for police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government. 7.2.2 The march of our own jurisprudence -- from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases - shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty. 7.2.3 Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.

7.2.4 The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

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7.2.5 The Commission trusts that this Report will contribute to a more rational, principled and informed debate on the abolition of the death penalty for all crimes.

7.2.6 Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible.

Sd/-

                                [Justice A.P. Shah]
                                    Chairman

         Sd/-                          Sd/-                          --
[Justice S.N. Kapoor]   [Prof. (Dr.) Mool Chand Sharma]    [Justice Usha Mehra]
       Member                         Member                      Member



                    --                                         --
            [P.K. Malhotra]                           [Dr. Sanjay Singh]
           Ex-officio Member                          Ex-officio Member



                  Sd/-                                       Sd/-
         [Dr. G. Narayana Raju]                       [R. Venkataramani]
           Member-Secretary                           Member (Part-Time)



                    Sd/-                                     Sd/-
        [Prof. (Dr.) Gurjeet Singh]                    [Dr. B. N. Mani]
           Member (Part-Time)                         Member (Part-Time)




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                                                       Annexure I
                     List of Participants
 I.    Law Commission of India


1.         Justice A P Shah
           Chairman
2.         Justice S N Kapoor
           Member
3.         Justice Usha Mehra
           Member
4.         Prof. (Dr.) Mool Chand Sharma
           Member
5.         Dr. G Narayana Raju
           Member-Secretary
6.         P.K. Malhotra
           Law Secretary (Ex-Officio Member)
7.         Prof. (Dr.) YogeshTyagi
           Member (PT)
8.         R Venkataramani
           Member (PT)
9.         Dr. (Smt.) Pawan Sharma
           Joint Secretary & Law Officer
10.        A.K. Upadhyay,
           Additional Law Officer
11.        Dr. V.K. Singh
           Deputy Law Officer

 II.   Chief Guest

 1.        Gopal Krishan Gandhi
           Former Governor, West Bengal

 III. Other Speakers

1. Justice Prabha Sridevan, Retired Judge, Madras High Court

2. Justice Hosbet Suresh, Retired Judge, Bombay High Court

3. Manish Tewari, Former Minister, Information & Broadcasting

4. Justice Bilal Nazki, Chairman, B.H.R.C.

5. Yug Chaudhry, Advocate, Mumbai

6. Ashish Khetan, Spokes Person, AAP

7. Prof. Dr. C Rajkumar, Vice Chancellor, O.P. Jindal Global University, Sonipat, Haryana

8. Prof. Ranbir Singh, Vice Chancellor, NLU, Delhi

9. Julio Ribeiro, Retired Sr. Police Officer 219

10. Majeed Memon, M.P. & Sr. Advocate

11. Brinda Karat, General Secretary, CPI(M)

12. Sankar Sen, Former D.G., Delhi Police/NHRC

13. Justice K. Chandru, Former Judge, Madras High Court

14. Prof NR Madhava Menon, Former Vice Chancellor, National Juridical School, Kolkota

15. Justice Rajinder Sachar, Former Judge, Delhi High Court

16. Shashi Tharoor, Former Union Minister

17. Kanimozhi, M.P. DMK

18. Prof Roger Hood, Centre of Criminology, University of Oxford

19. Dushyant Dave, Sr. Advocate

20. TR Andhyarujina, Sr. Advocate

21. Prof Mohan Gopal, Chairman, National Court Management system, Supreme Court

22. Anand Grover, Sr. Advocate

23. Wajahat Habibullah, Former, Chief Information Commissioner, Govt. Of India

24. D R Kaarthikeyan, Former Director General, National Human Rights Commission

25. Varun Gandhi, M.P. Lok Sabha

26. Sanjay Hegde, Advocate

27. Chaman Lal, Retired Sr. Police Officer IV. Other Invitees/Participants

1. Kusumjeet Sidhu, Secretary, Deptt. Of Justice, Ministry of Law & Justice, GOI

2. Navaz Kotwal, Consultant, Department of Justice

3. G. S. Bajpai, Registrar, NLU, Delhi

4. Colin Gonsalves, HRLN

5. Nitya Ramakrishnan, Sr. Advocate

6. Jawahar Raja, Advocate

7. Rani Shankardass, PRAJA

8. Aman Lekhi, Sr. Advocate

9. Dr YSR Murthy, President, O.P. Jindal Global University, Haryana

10. Justice S. B. Sinha, Retired Judge, Delhi High Court

11. D Nagasaila, PUCL

12. Vrinda Grover, Sr. Advocate

13. Sanhita Ambast, Advocate

14. Arghya Sengupta, Vidhi Centre of Legal Policy, New Delhi

15. PM Nair, Retired Sr. Police Officer 220

16. Meeran C Borwankar, Additional Director General Maharashtra (Prison)

17. Trideep Pais, Advocate

18. Shalini Gera, Jag Lag

19. Ravi Nair, SAHRDC

20. Vrinda Bhandari, Advocate

21. Suhas Chakma, ACHR

22. Usha Ramanathan, Social Activist

23. Sharib Ali, The Quill Foundation

24. Anil Gulati, Joint Secretary, Deptt. Of Justice, Ministry of Law & Justice, GOI

25. Nimesh Desai, Director, IHBAS

26. Dr. Anup Surendranath, Director, Death Penalty Project, NLU, Delhi

27. Venkatesh, CHRI

28. Manoj Mitta, Sr. Correspondent

29. V Venkatesan, Sr. Correspondent

30. Praveen Swami, Sr. Correspondent

31. Dr. Aparna Chandra, Asstt. Professor, NLU, Delhi

32. Dr. Mrinal Satish, Associate Professor, NLU, Delhi 221

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Report No. 262 On "The Death Penalty"