Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes. Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation.

There has been a diverse opinion regarding the death penalty in India as some are in the favour of the retention of the punishment while others are in the favour of its abolishment.

India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court.

The constitution of India guarantees to every person a fundamental right to life subject to its deprivation by the procedure established by law, it has been argued by abolitionists that sentence of death in the present form violates the citizen’s right to life. There are numerous legal luminaries who argue that the very fact that the death penalty is retained in Indian criminal statutes runs counter to one’s right to life. It is submitted that these learned jurists probably overlook the fact that even right to life is not an absolute right.

Further Art. 14 of Constitution declares “equality before law and equal protection of the laws”, which means that no person shall be discriminated against unless the discrimination is required to achieve equality.

The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution. Capital sentence, it seems, is therefore, an anti-thesis of one’s right to life. However, it is an indisputable fact that there is nothing in the Constitution of India which expressly holds capital punishment as unconstitutional.

The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled. According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”.

• Mitigation expert: The Bench indicated the need for mitigation experts to assist trial courts in reaching a correct conclusion on whether one should be sent to the gallows or not.

• The Court seemed to think that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy.

• An analysis of the possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).

• These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

Humane and reformist framework

• The special reason: According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so.

• It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.

• Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused. 

• Not unconstitutional: The Court, in Bachan Singh, refused to declare the death penalty as unconstitutional. 

• It abundantly implied that no person is indubitably ‘irreformable’.

• It had the effect of practically undoing the death penalty provision, if taken in its letter and spirit.

• Person-centric approach: This person-centric approach, for its materialisation, needs a different judicial acumen that recognises the convict in her multitudes.

Bachan Singh doctrine

• The Bachan Singh principle was followed more in its breach than in compliance even by the Supreme Court.

• In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.

• Several other cases also were decided by ignoring the Bachan Singh doctrine, as noted by the Supreme Court itself in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011).

• This egregious judicial error will have to be kept in mind while the Court revisits the issues related to mitigating factors and individual-centered sentencing policy in the Irfan case.

• Shortcomings of Bachan Sing: Bachan Singh did not, in concrete terms, elaborate on the mitigating factors and the methods to gather them to avert the death penalty.

• Nor did it explain the issues such as burden of proof and standard of proof in detail.

Issue of misuse and overuse

• Misuse of sedition provision: The Indian experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.

• The Supreme Court endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) with a rider that it could be invoked only when there is an incitement to violence.

• But the state seldom acts based on interpretation of the law. 

•  Many were booked for the charge of sedition since then for mere words, innocent tweets or harmless jokes.

Social Implications

• Disproportionate effect on the poor: In India, as elsewhere, the poor, rather than the rich, are sent to the gallows.

• Ineffectiveness of legal assistance: In Williams vs Taylor (2000), the U.S. Supreme Court said that failure of the defence lawyer in highlighting the mitigating factors that could lead to avoidance of capital punishment makes the legal assistance ineffective. 

• Therefore, it infringes constitutionally guaranteed rights.

• In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory.

• Mitigating factors not placed: And in the matter of sentencing too, the mitigating factors are either not placed before the trial court or not persuaded adequately to convince the trial judge to avoid the death penalty.

What could be done?

• Taking empirical lessons from the fate of Bachan Singh, the Supreme Court may have to now ask the more fundamental question posed and negatived in Bachan Singh — the question of the constitutional validity of death penalty.

• Comprehensive report: The Court, in the instant case, will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.

• Violation of Article 21: The Court may have to revisit Bachan Singh itself in so far as it refused to declare the death penalty as violative of the right to life envisaged under Article 21 of the Constitution.

• Across the world, 108 nations have abolished death penalty in law and 144 countries have done so in law or practice, according to the Amnesty Report of 2021.

• Judicial errors: In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, what is required is a judicial abolition of death penalty. 

The present matter will have to be referred to a larger Bench, with a view to rectify the foundational omission in Bachan Singh — of not explicitly declaring capital punishment as unconstitutional.