Recently, the Supreme Court observed that it was ‘reluctant’ to endorse death penalty even after years of its existence. Death penalty is a subject of perennial controversy in India. We may remind that India is one of the 39 countries that continues with the death penalty. When it comes to actual imposition, of late judges at the highest levels of judiciary have been showing restraint, considering the vagueness in the law concerning the choice between death sentence and life imprisonment.

As much as the law outwardly seems to have refined, yet the choice of imposition largely rests on the judge’s discretion. There are umpteen precedents which point that the judge’s reasoning for imposition of death penalty are often rhetorical and filled with subjectivity leading to inconsistent results.

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Although we may seem critical here, yet our system provides some safeguards by asking well-qualified judges to make this choice rather than public juries, as happens in United States of America or farcical military courts of Pakistan.

Let us first contextualize the conundrum we face; our Constitution provides for ‘right to life subject to the procedure established by law’ under Article 21. Supreme Court once read the same strictly by holding that life can be extinguished by the Government if procedures are promptly followed. However, those days are long gone, and our Supreme Court has expanded right to life in leaps and bounds. Presently it is not enough for the procedure which takes away to be fair, just and reasonable alone, rather the substantive law itself needs to be fair as well. However, it may not be out of context to mention that our founding fathers, as evident from the Constituent Assembly debates, left the implications of death penalty to the wisdom of the legislature. (refer to speeches of Prof. Sibhu Lal Saxena, Pandit Thakur Bhargav Das or Dr. B. R. Ambedkar on 3 June 1949).

In any case we may remind that the constitutionality of death penalty has been unsuccessfully challenged a couple of times before the Supreme Court. The last time the constitutionality of the death penalty was challenged was in Jag Mohan Singh and Bachan Singh Case, almost four decades ago. Considering the changes to jurisprudence, the Supreme Court needs to re-visit this area soon.

Viewed from a different angle, usually a punishment is given to serve multiple purposes, and chief among them is the deterrence it creates in society. There have been many academic studies which indicate that the death penalty does not serve as a good deterrent mechanism. In any case, India voted on 22 September 2017 in UN resolution (A/HRC/36/L.6) against the motion to abolish the ‘death penalty’. Moreover, the number of death penalties granted in 2018 is the highest since 2000 and is pegged at 162. This raise is due to change in the law, which allows death penalty for non-homicidal crimes as well.

Before we go any further, it is relevant to note the statutory changes adopted by the legislature when it comes to death penalty jurisprudence.

To start the narration of the law as it existed, Section 367(5) of the Code of Criminal Procedure, 1898, held that death was the norm for offences and judges had to give special reasons to impose life imprisonment. In 1955 an amendment was introduced whereby the terms of imprisonment and the death penalty were equal possibilities in a capital case. After 1973 with the introduction of present Code of Criminal Procedure, under Section 235(2), judges need to provide special reasons for imposition of the death sentence. The legislative trend shows complete reversal of the law. In this context there is no gainsaying that the recent judicial trend shows an inclination towards abolition.

Most recent cases which raised eyebrows are the Dhananjay Chatterjee case and Nirbhaya case. The criticism has been stark, and some have gone to the extent of calling these ‘judicially authorized violence’. However, we are of the opinion that the criticism stems from non-uniformity in exercise of judges’ discretion, which provides for personal preferences and views, public as well as personal, to play a significant role in making the choice. It is more disturbing to note that Supreme Court is aware of this and has acknowledged this disparity in multitude of cases starting with Shankar Kisanrao Khade Case.

Further the 262nd Law Commission Report highlights the extent of judge-centric arbitrary approach under the present system of death penalty, wherein they observed that the constitutional regulation of death penalty against arbitrary application has failed. It was further observed therein that such a rigid categorisation of the offence is arbitrary as it treats dissimilar cases on an equal parameter, but sadly there exists no uniform principle to remove such arbitrariness from the judge made sentencing policy.

When the Constitutionality of death penalty is beyond reach as the same has been settled by two fivejudge benches of the Supreme Court, the issue which needs to be considered is ‘whether the death penalty has been applied unconstitutionally?’

There have been multiple cases having similar facts but have ended with dissimilar result, due to large discretion available with the Courts. Of more concern are cases wherein the Court accepts that the crime was depraved yet does not convince itself to give a death penalty. It is usually public pressure or other extraneous factors which tip the scales in favour of the death penalty.

Coming back to the hesitancy of the Supreme Court in giving death penalty, there exists explicit acceptance by the judges of the Court itself that there is no judicial uniformity or basis for imposition of death penalty in India. The Standards laid out in catena of cases still provide for large discretion of judges. We may remind that the need for uniform application of criminal law is not a new one.

Ashokan Pillar VI in Delhi recognized the need for such uniformity centuries ago. Having considered a large body of judgments, we are of the opinion that courts in India have been inconsistently applying the death penalty as punishment which has led to unconstitutional and arbitrary application of law.

It is time for the Apex Court to recognize the unconstitutional disparity in application of death penalty and put a temporary moratorium on its use until the legislature provides for better sentencing guidelines for the judiciary to apply. In the meanwhile, we need to reflect as to whether ‘mercy is a charity of a judge’ or ‘leniency is a virtue of civilized society’? A good starting point would be to analyze the last dissent of Justice Kurian Joseph, wherein he observed that death penalty was unconstitutional in India.

(The writers are, respectively, a practicing advocate and a Research Assistant at the Supreme Court of India.)