Author: Ravinandan Bajpai, School of Law, University of Mumbai
ABSTRACT
Capital Punishment also known death penalty and formerly called judicial homicide is a state sanctioned killing of a person who has been found guilty of a crime that is beyond irretrievable limits and is of the potential to terrorise the whole society, the only punishment that can justify their act is the death sentence. Death sentence is a contentious issue not just in India but other parts of the world also, capital punishment is awarded mainly on two contentions : first the criminal should suffer the same pain and injury that he has inflicted upon the victims and the second is the deterrent theory/principle which says that the idea of threat of punishment can deter the people from committing crimes and is used by the governments in order to prevent any undesirable and immoral act that can cause nuisance and public outrage. In India, the capital punishment is reserved for rarest of the rare cases but Right to Life is also protected under Article 21 of Indian Constitution, raising the question that is giving capital punishment even in the rarest of the rare of the rare case necessary? In this Article we will deal with validity of the capital punishment in context of Bachan Singh vs. State of Punjab case.
INTRODUCTION
The Bachan Singh Case is the only matter in which the Constitutional Bench of the Supreme Court of India has discussed about the validity of the death sentence since the Code of Criminal Procedure was enacted in 1973. The Bachan Singh case is considered as one of the biggest contributors to the Indian Jurisprudence on capital punishment. It has answered the questions regarding the judicial validity of the capital punishment and whether the death penalty is in consonance with the provisions of the Indian constitution. This case is widely regarded as a landmark judgement, in which the “rarest of the rare” doctrine regarding the death penalty was given by a 5 Judges constitutional bench of the Supreme Court of India. This case checked the powers of the courts to award the death penalty on their discretion and established the procedure and guidelines for the courts to award the death penalty which must be in consonance with the provisions of the Constitution of India and must not violate the rights if the accused also.
BACKGROUND OF THE CASE
Bachan Singh was accused of murdering his wife for which he was in prison for 14 years. After he was released from the prison, he resided with his cousin Hukum Singh and his family. However, this living arrangement was not accepted by his cousin’s wife and four children. On July 04, 1977 he committed a heinous act and killed 3 children of his cousin with an axe.
Bachan Singh was awarded death sentence by the sessions court for the murder of Desa Singh, Veeran Bai and Durga Bai. He appealed in the High Court of Punjab and Haryana but his death penalty was upheld by the High Court also.
He then challenged the order of Punjab and Haryana High Court in the Supreme Court of India raising the contentions that:
Whether the case will fall under the ambit of “special reasons” as mandated under Section 354(2) of Criminal Procedure Code, 1973?
Whether the procedure for sentencing stipulated in Section 354(2) of CrPc,1973 unconstitutional as it gave unwavering and arbitrary powers to the courts to award death penalty in every case where the law states for death penalty?
Whether death penalty provided under Section 302 of IPC, 1860 for murder unconstitutional?
LEGISLATURE’S STANCE
The legislature introduced significant reforms through the Code of Criminal Procedure (CrPC). One of the key changes was the incorporation of Section 354(3) in the CrPC, 1973, which established a preference for life imprisonment over the death penalty. It further mandated that judges must provide “special reasons” when imposing a death sentence, thereby reserving capital punishment for the rarest of the rare cases.
In contrast, earlier versions of the CrPC treated the death penalty differently. Before the 1955 amendment to the CrPC, 1898, the death penalty was the default punishment for murder, and judges were required to give reasons if they chose life imprisonment instead. The 1955 amendment removed this requirement, allowing courts to impose either life imprisonment or the death penalty without providing justification. However, the CrPC, 1973, reversed this approach by making life imprisonment the norm and requiring judges to justify the imposition of capital punishment.
Additionally, Section 235(2) of the CrPC, 1973, granted an accused the right to be heard separately on the issue of sentencing after conviction. This ensured that before a death sentence was imposed, the court would consider mitigating factors such as the accused’s background, the nature of the crime, and the surrounding circumstances.
The Code of Criminal Procedure, 1973, has now been replaced by the Bhartiya Nagarik Suraksha Sanhita (BNSS), 2024. However, both Section 354(3) and Section 235(2), along with their underlying principles, have been retained in the new code.
JUDGEMENT IN BACHAN SINGH VS. STATE OF PUNJAB
The court with 4:1 majority dismissed the appeal. It also dismissed the challenge to the constitutionality of Section 302 to offer death penalty, as the court noted that it is not the sole punishment in the same section, awarding death penalty under Section 302 depends upon the circumstance of the case which also differs with every case. The court also dismissed the challenge to the constitutionality of Section 354(3) of Code of Civil Procedure, 1973. Although the majority was of 4:1, Justice P.N. Bhagwati dissented with the opinion of other judges, he was the sole dissenter he just wrote two paragraphs in his opinion for dissent but noted that he will provide the reason for dissent after the court reopens after the summer break. However, it took him two years to provide the reasons for his dissent with other judges in the judgement. In August 1982, he gave the reasons for his dissent and apologised for the undue delay in giving the reasons citing that “there was a large amount of literature which had to be studied and analysed before giving his reason for the dissent”.
ANANLYSIS OF THE JUDGEMENT
The Judgement upheld the constitutional validity of Section 302 of IPC, 1980 and Section 354(3) of CrPc, 1973, the court dismissed the challenge of petitioner regarding the constitutional consonance of these provisions. The Supreme Court also cited that the rights given under Articles 14, 19 and 21 of Indian Constitution are not violated by these provisions. The Supreme Court of India also used the maxim ‘sic utere tuo ut alienumnon laedas’, which means that an individual should use his/her rights within a certain limit. The rights of a person cease to exist where the nose tip of another person starts. These rights provided are subject to reasonable restrictions imposed by the state, this could also lead to seizure of exercise the rights in special circumstances and by using procedure established by law.
Another question before the court was that do the courts have untrampled powers to impose the death sentence and what is the scope of the ‘special reasons’ as stated in Section 354(3) of CrPc, 1973. The apex court clarified the above question of law by laying down the “rarest of the rare” doctrine means that the general rule will be to award the life sentence but the capital punishment will also be there, and will be inflicted only in the cases which will shake the collective conscience of the society. The imposition of death penalty will be in rarest of the rare cases only.
Justice Sarkaria further stated some points in the judgement:
In the cases of grave culpability only, the extreme death sentence can be inflicted upon a person.
While deciding on the matter in which capital punishment is a possibility the court must take into account the circumstances of the accused also. The court must scrutinize the crime as well as the criminal and then decide whether or not to award death sentence to the accused.
The mitigating circumstances which were reiterated in the judgement that the court should take into account while deciding a case of death penalty were:
The offence was committed by an individual who was of unsound mind or he/she was extremely emotionally disturbed.
The age of the offender must also be taken into account, if the offender is minor, he/she must not be sentenced to death.
The state has to prove in toto and rule out all the possibilities that the accused is beyond reformation and rehabilitation, he or she cannot reform and will certainly act as a threat to the society.
The mental state of the offender, was the offender while committing the crime thought that he/ she is morally right in doing so.
If the offender has acted under duress or he was dominate by another person’s will.
The medical condition of the accused showed that he was mentally ill and was not able to understand the nature of the act he was committing.
DISSENTING OPINION OF JUSTICE P.N. BHAGWATI
The rule of law penetrates the entire fabric of the Indian Constitution, Justice P.N. Bhagwati cited four major reasons why death penalty is cruel, inhumane and a disproportionate punishment, they are as under:
Article 14 acts as a safeguard against the arbitrariness of the state against the individuals. According to Justice P.N. Bhagwati the death penalty imposed by Section 302 IPC,1860 was ultra vires as it provides death penalty as an alternative to a life sentence as it infringes Articles 14 and 21 of Indian Constitution, and no clear legislative guidelines are laid down over as to when the life should be extinguished after imposing death sentence by using procedure established by law.
The irreversible nature of the death penalty unlike other punishments requires utmost accuracy in the criminal justice system so that any innocent must not get punished for someone else’s bad deeds but owing to the possibility of fallibility in the criminal justice system, the possibility of an innocent person getting death penalty cannot be excluded completely.
The entire process of receiving a death sentence, waiting for execution, and ultimately being executed causes severe mental and physical distress, which cannot be imposed under the Constitution.
The Capital Punishment defeats the basic purpose of penology i.e. reformation. When death penalty is inflicted upon a person, the scope of reformation ends. After research of various jurisdictions, it was claimed that death sentence does not have higher deterrence value than that of the life imprisonment.
CONCLUSION
The Bachan Singh case remains as the landmark judgement in the Indian legal history for shaping the Indian Jurisprudence over the death penalty and establishing the “rarest of the rare” doctrine. It upheld the constitutional validity of death penalty in India with a majority of 4:1, while the judgement acts a precedent that it can be used in only exceptional circumstances where the crime is so grave that it shook the collective conscience of the nation. On the other hand, Justice P.N. Bhagwati, the only dissenting judge on the bench gave reasons that highlighted the inhumane, irreversible and arbitrariness of the death penalty. He argued that the death penalty violated the fundamental rights given under Article 14, 19 and 21 of the Indian Constitution, he aligned his reasonings with the evolving jurisprudence on human rights and highlighted the mental agony, judicial errors and failure of capital punishment as a deterrent over life imprisonment.
Finally, a thorough examination of death penalty issue would serve as an adequate reminder to the courts about the commitment of the first Chief Justice of India 75 years ago i.e. to uphold and interpret the constitution with wisdom and openness.
FAQS
1. What is capital punishment?
Capital punishment, also known as the death penalty, is a state-authorized execution of a person who has been convicted of a heinous crime. It is reserved for offenses considered to be of extreme gravity and is implemented through various methods, depending on the jurisdiction.
2. What is the “rarest of the rare” doctrine?
The “rarest of the rare” doctrine, established in Bachan Singh v. State of Punjab (1980), states that the death penalty should only be awarded in exceptional cases where the crime is so gruesome and brutal that it shocks the collective conscience of society.
3. How did the Bachan Singh case shape India’s death penalty laws?
The Supreme Court in Bachan Singh v. State of Punjab (1980) upheld the constitutional validity of the death penalty but ruled that it should be imposed only in the rarest of the rare cases. The judgment provided guidelines for courts to follow while deciding whether a convict deserves capital punishment.
4. What legal provisions govern the death penalty in India?
The key legal provisions related to the death penalty in India include:
Section 302 of the Indian Penal Code (IPC), 1860 – Provides for the death penalty or life imprisonment for murder.
Section 354(3) of the Code of Criminal Procedure (CrPC), 1973 – Requires judges to provide special reasons when awarding the death penalty.
Section 235(2) of the CrPC, 1973 – Grants an accused the right to be heard separately on sentencing, ensuring consideration of mitigating factors before imposing capital punishment.
5. What were Justice P.N. Bhagwati’s objections to the death penalty?
Justice P.N. Bhagwati dissented in the Bachan Singh case and argued that the death penalty is unconstitutional because:
It violates Articles 14 and 21 of the Constitution.
The criminal justice system is fallible, and wrongful executions cannot be undone.
The mental and physical suffering endured by death row convicts amounts to inhuman and cruel punishment.
Capital punishment eliminates the possibility of reformation, contradicting the principles of penology.
6. Has the Code of Criminal Procedure (CrPC) been replaced?
Yes, the Code of Criminal Procedure, 1973 has been replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2024. However, the principles of Sections 354(3) and 235(2) have been retained, ensuring that the safeguards related to the death penalty remain in place.
