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Capital Punishment in India: SC upholds constitutional validity of death penalty; Justice Kurian Joseph dissents

While delivering the judgment, a three-judge bench comprising Justices Kurian Joseph, Deepak Gupta and Hemant Gupta expressed different opinions with Justice Joseph saying that the provision of capital punishment has failed to become a deterrent and the other two holding its continuance in the rarest of rare cases.

Nov 29, 2018 13:24 IST
SC upholds constitutional validity of death penalty Justice Kurian Joseph dissents

The Supreme Court on November 28, 2018 upheld the constitutional validity of death penalty while awarding life term imprisonment to Chhannu Lal Verma instead of death penalty for murdering three persons including two women.

While delivering the judgment, a three-judge bench comprising Justices Kurian Joseph, Deepak Gupta and Hemant Gupta expressed different opinions with Justice Joseph saying that the provision of capital punishment has failed to become a deterrent and the other two holding its continuance in the rarest of rare cases.

Though the three judges differed on the applicability of death penalty, they were unanimous in commuting or reducing the death sentence of Chhannu Lal Verma.

Unanimous view of judges on commuting death sentence of Chhannu Lal Verma

The three judges were unanimous in their view that the Chhattisgarh High Court has wrongly confirmed death penalty on Chhannu Lal Verma without correctly applying the law laid down in Bachan Singh and other cases.

As per the judges, the decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest of rare case.

They noted that the superintendent of the jail has given a certificate that his conduct in jail has been good during the pendency of his appeal in apex court for past four years.

Thus, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed.

Verma was convicted by a Sessions Court in Chhattisgarh and then by the Chhattisgarh High Court for killing Anand Ram Sahu, his wife Firanteen Bai and raping and murdering their daughter-in-law Ratna Sahu in 2011 and was subsequently awarded a death penalty.

Justice Kurian Joseph's views on the applicability of death sentence

constitutional validity of death penaltyJustice Kurian Joseph, who superannuated on November 29, 2018, referring to the 262nd report of the Law Commission and said, "The constitutional regulation of capital punishment attempted in Bachan Singh versus State of Punjab in 1980 has failed to prevent death sentences from being 'arbitrarily and freakishly imposed' and that capital punishment has failed to achieve any constitutionally valid penological goals..."

He further added that "Every death penalty case before the court deals with a human life that enjoys certain constitutional protection and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards."

The irrevocable nature of the sentence and the way the death row convicts hang between life and death, are to be duly considered.

His views on public discourse on crimes

Justice Joseph also voiced his views on public discourse on crimes which have an impact on the trial, conviction and sentence. He said that it has almost become a trend for the investigating agency to present their version and blow the collective conscience of the society regarding the crime and criminal.

While referring to the law commission report, he said that the court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses. This puts mounting pressure on the courts at all the stages of the trial.

Judgment delivered by Justices Deepak Gupta and Hemant Gupta

Justices Deepak Gupta and Hemant Gupta gave contradictory opinion on the views expressed by Justice Joseph on applicability of death sentence.

They mentioned that a five-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had already held the constitutional validity of death penalty provided in Indian Penal Code. Thus, there is no need to re­examine the same at this stage.

Capital Punishment or Death Penalty in India

Capital punishment is a legal penalty in India. The execution of death sentence in India is carried out by hanging by the neck until death or by shooting. However, the issue of death penalty has been debated and discussed from time to time in India with no conclusion drawn till now.

There have been diverse and distinct opinions regarding the death penalty in India as some are in the favour while others are against it.

India is one of the 78 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’.

According to Amnesty International ‘Death Sentences and Executions’ report released in April 2018, the Indian courts gave away 109 death sentences in 2017 but no executions were carried out. Overall, there were 371 people on death row in India in 2017.

Cases which challenged constitutional validity of the death penalty

  • The constitutional validity of the death penalty was challenged from time to time in numerous cases starting from Jagmohan Singh v State of UP where the Supreme Court rejected the argument that the death penalty is in violation of Article 19 of the Indian constitution which guarantees “Right to Life”.
  • In Rajendra Prasad v State of UP in 1979, Justice Krishna Iyer of the Supreme Court ruled that death penalty violates Articles 14, 19 and 21.
  • In Bachan Singh  v State of  Punjab case of 1980,  the Supreme  Court overruled  its  earlier  decision  in  Rajendra  Prasad case.  It expressed that death penalt is an alternative punishment for murder and hence not violative of Articles 14, 19 and 21. The court also  pronounced  the  principle  of  awarding  death penalty only in the ‘rarest of rare cases’.
  • In Machhi Singh v State of Punjab, the apex court laid down the broad outlines of the circumstances when death sentence should be imposed and held that five categories of cases may be regarded as rarest of rare cases:
  1. Manner of carrying out murder : When the murder is committed in an extremely brutal manner to arouse intense fury in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the inhuman torture.
  2. Motive : When the murder is committed for a motive such as a murder by a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
  3. Anti-social or socially abhorrent nature of the crime :  A scheduled caste or minority community person is murdered in circumstances which arouse social wrath; or bride burnt for dowry or for remarriage.
  4. Magnitude of the crime : Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
  5. Personality of victim of murder

Recent death sentence executions

  • The last time India had carried out an execution was in 2015 when Yakub Memon was hanged after being found guilty in the 1993 Mumbai terrorist bombings that killed 257 people.
  • In February 2013, Afzal Guru, convicted of conspiracy in connection with the 2001 Indian Parliament attack, was hanged till death at Delhi's Tihar Central Jail.
  • Prior to that, on November 21, 2012, Ajmal Kasab was hanged in the Yerwada Central Jail in Pune. Kasab was a Pakistani terrorist and a member of the Lashkar-e-Taiba Islamist group and took part in the 2008 Mumbai terrorist attacks. Kasab was the only attacker captured alive by police.