Death Penalty Continued: Comments by Mrinal Satish, Visiting Professor, NLSIU

I’d like to highlight some other interesting issues in the Bariyar judgment. The Supreme Court seeks to make a distinction between “principled sentencing” and “judge-centric sentencing” and then again between “principled sentencing” and “consistency”. This raises the question of what “principled sentencing” actually means. The judgment (in my reading) does not offer an explanation to this term. However, reading this judgment with an earlier judgment of the Supreme Court in State of Punjab v. Prem Sagar [JT 2008 (7) SC 66], where the Court (speaking through Justice S.B.Sinha) had stated that sentencing ought to be reasoned and rational, the conclusion one can draw is that the Supreme Court is calling for a more rational approach to sentencing (which also comes out from the decision of the Court in Aloke Nath Dutta, [2006 (13) SCALE 467]. What is “rational” is again debatable.

The second issue that I’d like to highlight is the factors that the court says ought to be considered in a sentencing hearing (Paragraph 49 of the JT Judgment). The Court says that motive, nature of the offence, impact of the crime, culpability of convict, quality of evidence are relevant factors. In the next paragraph, the Court states that socio-economic status of the offender can also play an important role in sentencing. An objective analysis of whether the convict can be reformed or not is considered the most important factor. In this context, in my view, the first set of factors that the Court deems fit to consider while sentencing are all factors that are also considered relevant for convicting/acquitting the accused person. If these factors are re-considered while sentencing, the distinction between the trial phase and the sentencing phase that the Legislature sought to make by introducing S. 235(2) into the Cr.P.C. is obliterated. Further, in my understanding, the purpose of S. 235(2) and analogous provisions of the Cr.P.C. dealing with pre-sentence hearings, appears to be designed to give an opportunity to the court to determine which theory of sentencing is most appropriate for the crime and the criminal, and to make a determination of the appropriate sentence in that context. As regards whether the accused can be reformed or not, most, if not all courts in India, do not have the assistance of a trained probationary officer or a psychologist to make such an assessment. Judges determine the same based on “objective” factors. This in itself leads to arbitrariness, since the “judge-centric” approach kicks in into such an assessment.

The third troubling factor in the jurisprudence of the Supreme Court on the death sentence issues is the power of the High Court (in death reference cases) and the Supreme Court (when these death references are appealed). The Supreme Court in Bariyar cites State of Maharashtra v. Sindhi, [(1975) 1 SCC 647)], where the Court had held that the High Court must reappraise, reassess and reconsider the entire facts and law and come to its own conclusions, independent of the view expressed by the trial judge. While, at one level, this acts as a safeguard and ensures that the evidence is objectively determined, the fact that at each level of the Courts, re-appreciation of evidence is permitted is problematic, since “judge-centric” interpretations might impact such re-appreciation. It is interesting to note that the Supreme Court has in other circumstances stated that re-appreciation of evidence should be an exception and not the norm.

The other very interesting issue that comes out of the Bariyar judgment is the application of Art. 14 of the Constitution of India to sentencing. In the Royappa case [(1974) 4 S.C.C. 3], the Supreme Court had held that that if an act is arbitrary, it is violative of the right to equality guaranteed by the Constitution of India. Discussing the meaning of the term “arbitrary,” the Court ruled that decision making ought to be based on equivalent relevant principles, applicable to all individuals who are similarly situated. Further, the Court also ruled that equality is the very basis of the doctrine of “rule of law,” which is the core value in a democratic Constitution. Commenting on this decision, H.M. Seervai remarked that if the existing system of sentencing in India is tested against the principle laid down by the court, the system will be unconstitutional, since there are no rational rules for sentencing. The Bariyar judgment brings back this debate to the fore. Does “arbitrary” sentencing or disparate sentencing violate Article 14? Bariyar seems to suggest it does. In my opinion, it definitely does. Sentencing also ought to be based on constitutional values, and there cannot be a different set of rules (or no rules at all) for sentencing. Hence, if there are no rational reasons given, the system becomes unconstitutional.

Hence, in my view, it is time to re-visit the Bachan Singh judgment and test the constitutionality of the death penalty in light of the various factors that have emerged post- Bachan Singh. Examined in light of these factors, the only answer that is possible is that the “rarest of rare” case doctrine is not really taking away arbitrariness in sentencing, which then makes imposition of the death sentence fall foul of the Constitution of India.