SC: Can’t avoid handing death term to convicts

NEW DELHI: The judiciary cannot avoid sending convicts to the gallows in appropriate cases, the Supreme Court ruled on Friday, emphasising that a judicial approach to overturn death penalty in one way or the other by giving the statutory punishment a “burial” would be contrary to the rule of law -an order that appeared to open a debate in the higher judiciary on the death sentence in light of two other recent judgments.

Affirming the death sentence for a 32- year- old man from Rajasthan for raping and murdering an eight-year-old mentally and physically disabled girl in 2013, the top court on Friday underlined that the judicial process cannot act “determined to annul the death sentence altogether”, by devising ways for avoiding capital punishment in every case.

“Such an approach would be counterproductive to the entire system of maintenance of order in the society; and could be countenanced only if we would be inclined to think that whatever be the society’s cry for justice, the statutory provision of death sentence should itself be given its interment or burial,” held a bench, headed by justice AM Khanwilkar.

The bench, which included justices Dinesh Maheshwari and CT Ravikumar, remained firm that a court is not bound to keep seeking reports on psychological assessment or possibility of reformation of a convict at every stage when there are overwhelming circumstances to show the depraved conduct of the convict.

“Obviously, this approach would be squarely contrary to the statutory mandates as also the principles enunciated by multiple constitution bench decisions of this court; and would strike at the roots of the rule of law,” it said.

The judicial process, the court added, would be compromising on its objectivity if the approach is to nullify the statutory provision carrying death sentence as an alternative punishment for major offences, even after it has passed muster of judicial scrutiny and has been held not unconstitutional.

The three- judge bench’s decision on Friday came close on the heels of another threejudge bench of the Supreme Court issuing directives last month, focussing on collection of mitigating circumstances and psychiatric and psychological evaluation reports in all death penalty cases in order to ensure that “more objectivity” in the criminal justice delivery system.

In its judgment on May 20, the bench led by justice Uday U Lalit, said: “The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty.”

The goal of reformative punishment, this bench had then held, requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making. This judgment was delivered while commuting the death sentence of three death row convicts from Madhya Pradesh who entered a house to steal in June 2011 and ended up brutally murdering three women.

On Friday, justice Khanwilkar’s bench cited the Supreme Court’s landmark ruling on death sentence cases in the Bachan Singh case (1980), which laid down the doctrine of “rarest of rare” crime in handing down capital punishment while mandating a comparative analysis of aggravating and mitigating circumstances before reaching a conclusion that hanging remained the only suitable punishment for a convict. The Bachan Singh case laid down that a court must scrutinise both the crime as well as the criminal, and then decide whether death penalty is the only suitable punishment in the facts of the case.

Referring to the 1980 verdict, the bench pointed out that the quest for justice in cases, where death sentence has to be awarded only in extreme cases, does not mean that a court would examine the case in the manner that death sentence must be avoided, although the matter indeed calls for the capital punishment.

“The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found; or if not found, be deduced anyhow so that the sentence of death be forsaken. Such an approach would be unrealistic, unwarranted and rather not upholding the rule of law,” it stressed.

In the present case, the bench noted that convict Manoj Pratap Singh deserved the death sentence, considering that he committed the crime against a vulnerable child with extreme depravity coupled with the fact that he was involved in criminal cases in the past as well as after the commission of rape and murder in 2013 when he was lodged in a jail.

Rejecting the plea of Singh’s lawyer to call for his psychological evaluation report from jail, the top court said that calling any such report in the view of Singh’s repeated criminal acts could be proposed only if the judicial process is determined to annul the death sentence altogether.

On April 20, the bench led by justice Lalit and comprising justices S Ravindra Bhat and Bela M Trivedi, spared gallows for a man who raped and murdered a four-year-old child in Madhya Pradesh reducing his sentence to 20 years in jail to enable the convict become a “socially useful individual” upon release from jail.

While modifying the punishment, the bench in its April judgment invoked Oscar Wilde: “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future”. It added: “One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail.”

Back in 1973, a Constitution bench upheld the validity of the death sentence as a punishment under the law.

In Jagmohan Singh Vs the State of Uttar Pradesh, the constitutional validity of capital punishment was challenged on the grounds that the punishment put an end to all the fundamental rights of an individual and that the discretion vested in the judges to impose capital punishment was not based on any standards or policy.

The top court rejected these contentions in the 1973 ruling, concluding that “the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional”.

It further noted that the policy of law in giving a very wide discretion in the matter of punishment to the judge has its origin in the impossibility of laying down standards, coupled with exercise of judicial discretion on well-recognised principles is the safest possible safeguards for the accused.

Such an approach would be counterproductive to the entire system of maintenance of order in the society.