Death Sentence Despite Dissent? Here’s What Legal Precedents Say

Complex questions about capital punishment have been raised due to the dissent of a judge in a recent case.

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[In a recent case, the Supreme Court confirmed the death sentence of a person convicted of rape and murder of a minor, even while one judge dissented about the quantum of punishment, raising difficult and complex questions about capital punishment in India.]

On 3 October, in the case of Ravi v. State of Maharashtra, a three judge bench of the Supreme Court confirmed the death sentence in a case involving the rape and murder of a minor, with one judge on the bench choosing to dissent, arguing that the case was one that merited commutation to life imprisonment.

The two judgments present a stark contrast in judicial reasoning on the sentencing process, and raise serious questions about the imposition of death in the absence of judicial consensus.

This piece argues that the majority opinion does not meet the standards of sentencing laid down by precedent, particularly in Bachan Singh’s framework of ‘rarest of rare’, while the treatment of mitigating factors by Reddy J in his dissent, is more consistent with Bachan Singh.

Derogation from Sentencing Frameworks Laid Down in ‘Bachan Singh’ and ‘Machhi Singh’

The majority, in its judgment, emphasises the need to adhere to the ‘strict parameters’ laid down in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab. However, in arriving at the conclusion, it ultimately fails to comply with these requirements.

The landmark judgment of ‘Bachan Singh’, which upheld the constitutionality of the death penalty, also developed the sentencing framework that governs the imposition of the death sentence.

It requires the Court to identify and consider all aggravating and mitigating circumstances that relate to the crime and the criminal, with ‘mitigating circumstances’ necessarily given a liberal and expansive interpretation. Finally, it holds that the extreme penalty of death should only be imposed in the ‘rarest of rare’ cases, where the option of life imprisonment is ‘unquestionably foreclosed’.

In the present case, the majority pays no heed to the balancing exercise — it arrives at the sentence by solely relying on one ‘aggravating’ factor, that is, the brutality of the offence, with negligible consideration of mitigating factors. Several relevant mitigating factors presented by the Counsel for the appellant, such as lack of criminal antecedents, young age, poor socio-economic background, were dismissed during the ‘balancing’ exercise, which only focused on the crime.

Death Sentence: What Needs to be Considered

The Supreme Court in several cases such as Panchhi v. State of U.P., Vashram Narshibhai Rajpara v. State of Gujarat, Rajendra Prahladrao Wasnik v. State of Maharashtra and M. A. Antony @ Antappan v. State of Kerala, has expressly held that brutality of an offence cannot be considered as the sole ground for determining appropriate punishment. The majority in Ravi, while acknowledging that the sentencing jurisprudence laid down in Bachan Singh and Machhi Singh has evolved over numerous cases, failed to meaningfully consider these developments.

Machhi Singh requires two questions to be considered before imposing the death sentence:

• whether the sentence of life is inadequate
• whether there is no alternative but the death sentence, despite according maximum weightage to the mitigating factors.

However, the majority makes no attempt to address the two questions before awarding the death penalty.

Similar to the decision in another capital case this year, the judgment also unnecessarily and problematically relies on legislative intent by invoking amendments made to the Protection of Children from Sexual Offences Act, 2012 (POCSO) for the imposition of the death penalty in cases of rape of minor children below the age of twelve years. Enacted in 2018, the amendments to POCSO did not govern the adjudication in either case, yet, were used by the Court as a factor relevant to sentencing.

The dissent rightly notes that inapplicable legislative policy cannot be prioritised over the requirement of individualised sentencing.

Question of Remorse & Reformation

The Supreme Court has repeatedly highlighted the importance of remorse as a factor in commutation of the death sentence, mandating that the accused must be shown to be ‘beyond reformation’ to justify imposition of death.

For the majority in Ravi, the only relevant consideration in determining the possibility of reformation of the accused was his silence during the section 313 statement in trial. Section 313 of the Code of Criminal Procedure provides an opportunity to the accused during the trial, to explain their version of events. Using this statement during sentencing, which is separate from guilt determination, implies punishing an accused for simply exercising their right to contest guilt.

Further, that this is the sole factor considered by the Court on the question of remorse is troubling, especially in light of recent decisions, where the Supreme Court has examined the reports of the accused’s conduct in jail to determine the prospects for rehabilitation. The haste with which the majority has concluded that there was no remorse, with no effort to enquire into mitigating circumstances on record, is a dishearteningly insincere engagement on the question of reform.

A Case for Dissent

The dissent is indicative of the scope that the exercise of mitigation can bring to sentencing in cases. It instead places the burden on the prosecution to present evidence to show that there is no possibility of reform. It states that there must be special reasons compelling the Court to believe that the appellant was beyond reform, with due regard to factors such as the age, lack of prior antecedents and socio-economic background of the offender. In the absence of such evidence and special reasons, it cannot be said that the accused is beyond reform.

In contrast to the majority’s focus on the barbarity of the offence, the dissent culls out mitigating factors, the absence of aggravating factors, and the absence of evidence on the lack of possibility of reform to commute the death sentence of the appellant.

In addition to these factors, the dissent holds that since the conviction was on the basis of circumstantial evidence, the case merited commutation of the death sentence.

In recent cases, the Supreme Court has found that in light of the irreversibility of capital punishment, the ‘residual doubt’ from convictions based on circumstantial evidence should result in commutation of the sentence. On the one hand it is of concern that under similar circumstances, the Court is arriving at different conclusions on the question of sentence. On the other, if there is evidence that raises doubts which merit reconsideration of the sentence, it is worth questioning why such doubts still require the conviction be upheld.

Dissent in Death Sentencing

Another serious question is the very idea of imposing death when the members of the bench disagree on the sentence. Bachan Singh emphasises the ‘scrupulous care and humane concern’ to be taken in making the determination that life should be taken by ‘law’s instrumentality’. We would argue that this ‘care’ necessarily implies imposing death only when there is no doubt — expressed by any judicial mind considering the case — that the sentence of life imprisonment is sufficient. For this to occur at the apex court level twice this year (previously in the case of Manoharan in August) is a cause for concern.

Complexity of Capital Sentencing

Of course, it is important to acknowledge the complexity of the exercise before the judges in sentencing, with Bachan Singh’s failure to provide details of how one must balance aggravating and mitigating circumstances. However, the majority has failed to sufficiently contemplate mitigating factors, including those clearly laid down by Bachan Singh, as relevant considerations.

If the penalty of death is to be pronounced, there is a burden on the Court to establish that the ‘option of life is unquestionably foreclosed’, a standard that has clearly not been met in the present case.

And when the judges on the same bench so fundamentally disagree on the sentencing in this case, the majority’s claim of the case being fit for execution remains dubious.

(The authors are Research Associates at Project 39A, National Law University Delhi. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)