Asian Centre For Human Rights May 2015 INDIA: Death despite dissenting judgements 1. Preface Inside Justice P N Bhagwati in his minority judgement in 1. Preface ......................................................... 1 the Bachan Singh1 case held that the “only way in which 2. Death despite dissenting judgements .................... 2 the vice of arbitrariness in the imposition of death penalty 3. Experiences of the US: Lessons for India ................ 5 4. Conclusion and recommendations ........................ 6 can be removed is by the law providing that in every case Annexure I: Summary of the cases referred .............. 6 where the death sentence is confirmed by the High Court i. Acquittal Vs death sentence ............................... 6 there shall be an automatic review of the death sentence Case 1: Gurmeet Singh, Uttar Pradesh ............... 6 by the Supreme Court sitting as a whole and the death Case 2: Lalit Kumar Yadav, Uttar Pradesh ............. 7 ii. Death penalty vs life imprisonment .................... 7 sentence shall not be affirmed or imposed by the Supreme Case 1: Saibanna Nigappal Natikar, Karnataka ...... 7 Court unless it is approved unanimously by the entire Case 2: B A Umesh, Karnataka .......................... 8 court sitting enbanc and the only exceptional cases in Case 3: Swamy Shraddananda, Karnataka ............ 9 which death sentence may be affirmed or imposed should Case 4: Rameshbhai Chandubhai Rathod, Gujarat ..10 be legislatively limited to those where the offender is found iii. Normal capital crimes vs terror capital crimes .....10 Case 1: Bishnu Prasad Sinha and Anr. Vs. to be so depraved that it is not possible to reform him by State of Assam ............................................10 any curative or rehabilitative therapy and even after his Case 2: Devender Pal Singh Bhullar, Delhi ...........11 release he would be a serious menace to the society and Case 3: State (N.C.T of Delhi) Vs. Navjot Sandhu @ Afsan Guru And Shaukat Hussain Guru Vs. therefore in the interest of the society he is required to be State (N.C.T. of Delhi) ...................................13 eliminated”. Case 4: State through Superintendent of Police, CBI/SIT vs. Nalini and Ors .....................15 The vice of arbitrariness on imposing death penalty iv. The issue of determining juvenility ...................17 Case 1: Ram Deo Chauhan @ Rajnath has come to haunt Indian justice system. The Supreme Chauhan, Assam ..........................................17 2 Court in Sangeet & Anr Vs State of Haryana of 20 Abbreviations November 2012 admitted “judge centric” character CrPC Code of Criminal Procedure in death sentencing, a euphemistic term to describe FIR First Information Report IPC Indian Penal Code the vice of the arbitrariness. JJB Juvenile Justice Board MHA Ministry of Home Affairs The lack of unanimity in death sentencing is a serious NHRC National Human Rights Commission issue of concern. The ratio of differences of opinion TADA Terrorist and Disruptive Activities (Prevention) Act 2 INDIA: DEATH DESPITE DISSENTING JUDGEMENTS whether somebody convicted for offences punishable has come for India to make imposition of death with death should die or live in most cases is 2:1. The penalty solely based on unanimous decisions of a differences of opinion are not usual one of whether constitutional bench of the Supreme Court. The to impose death penalty or life imprisonment, but President of India too ought to automatically grant ranges between acquittal and death sentence. In mercy if there are differences of opinion at any stage exceptional cases, there are differences on the issue of the proceedings, and not only at the stage of of determining juvenility while for terror capital the High Court. The differences of opinion at the crimes, death sentencing is the rule. level of the Supreme Court ought to be given more importance. The experiences of the United States on the need for unanimity of judges for death sentencing are 2. Death despite dissenting judgements instructive. In 2002, the United States Supreme Court in Timothy Ring (Ring v. Arizona) ruled “312. Before I part with this topic I may point out Arizona’s death penalty statute as unconstitutional that only way in which the vice of arbitrariness in because it allowed “a sentencing judge, sitting without the imposition of death penalty can be removed is a jury, to find an aggravating circumstance necessary by the law providing that in every case where the for imposition of the death penalty.”3 A study in the death sentence is confirmed by the High Court US in 2005 had shown that if there is no unanimity there shall be an automatic review of the death for imposition of death penalty, in 20 states of the sentence by the Supreme Court sitting as a whole United States, courts must impose a lesser penalty and the death sentence shall not be affirmed or when the jury cannot agree on whether to impose the imposed by the Supreme Court unless it is approved death penalty, in four states the jury can continue to unanimously by the entire court sitting enbanc and deliberate on penalties other than the death penalty the only exceptional cases in which death sentence before the court imposes a sentence, in one State the may be affirmed or imposed should be legislatively judge has the option of imposing a sentence of life limited to those where the offender is found to be imprisonment without parole or impaneling a new so depraved that it is not possible to reform him jury, and in two states, statutes authorise the court by any curative or rehabilitative therapy and even to impanel a new jury if the first jury cannot reach a after his release he would be a serious menace to the verdict.4 society and therefore in the interest of the society he is required to be eliminated. Of course, for The “differences of opinion at the level of High reasons I have already discussed such exceptional Court” is recognised as a ground for commutation cases would be practically nil because it is almost of death sentences under the broad guidelines impossible to predicate of any person that he is on consideration of mercy pleas adopted by the beyond reformation or redemption and therefore, Ministry of Home Affairs (MHA), Government of from a practical point of view death penalty would India.5 However, the MHA regularly flouts its own be almost non-existent. But theoretically it may be guidelines including on ‘the differences of opinion at possible to say that if the State is in a position to the level of High Court’ while advising the President establish positively that the offender is such a social of India on mercy pleas. monster that even after suffering life imprisonment and undergoing reformative and rehabilitative Considering the miscarriage of justice and admitted therapy, he can never be reclaimed for the society, judge-centric character of death sentencing, the time then he may be awarded death penalty. If this test INDIA: DEATH DESPITE DISSENTING JUDGEMENTS 3 is legislatively adopted and applied by following deliberated upon by the Indian judiciary and the the procedure mentioned above, the imposition government. There is need to address this issue of death penalty may be rescued from the vice of considering the fact that the differences of opinion arbitrariness and caprice. But that is not so under range from acquittal to death sentence. the law as it stands today.” Justice P N Bhagwati in his dissenting judgement in Bachan Singh Differences of opinion: acquittal vs death sentence vs State of Punjab (1982 AIR 1325) on 16 There is no doubt that if the difference of opinion August 1982 declaring the death penalty is a serious as acquittal vs death sentence, death provided under Section 302 of the Indian penalty ought not to be imposed as ratio decidendi. Penal Code read with Section 354 Sub-section However, in such cases, the Supreme Court awarded (3) of the Code of Criminal Procedure, 1973 both death sentence and life imprisonment. It is as unconstitutional and void as being violative clear that the Supreme Court has not yet considered of Articles 14 and 21. differences of opinion among judges of a bench as a ground for not imposing death sentences. In India, it is only when two judge bench of the High Courts or the Supreme Court differ on the issue of In the case of Gurmeet Singh of Uttar Pradesh, imposing death penalty that the case is referred to a out of the two judges of the High Court one was third judge at the High Court level and three bench for upholding the Sessions Court’s conviction judges at the Supreme Court. Therefore, the ratio including the death sentence, the other judge was of difference of opinion is often as narrow as 2:1. for acquittal of the accused.8 The matter was referred This makes decisions on imposing death penalty to a third judge who upheld conviction and death extremely vulnerable to arbitrariness, irrationality sentence.9 The Supreme Court also upheld the and unfairness. conviction and death sentence considering the case as ‘rarest of the rare’. On 1 March 2013, President The minority view in the judgements is seldom Pranab Mukherjee rejected the mercy petition referred as stare decisis. Otherwise, the judgement of Gurmeet Singh and failed to comply with the of Justice Bhagwati in the Bachan Singh case in guidelines of the Government of India to grant 1980 would have significantly addressed what mercy in case of “difference of opinion in a Bench of the Supreme Court in Sangeet & Anr Vs State of two Judges necessitating reference to the third Judge of 6 Haryana of 20 November 2012 termed as “judge the High Court”10. Thereafter, the Supreme Court in centric”, an euphemistic term to describe the vice of Shatrughan Chauhan Vs.