The unending uncertainty in the Death sentencing Policy of Indian Courts

A recent judgment of a CJI-led 3 Judges’ Bench decision in Purushottam Dashrath Borate & Anr v. State of Maharashtra has reopened the long-standing controversy on the capricious, uncertain, confused and arbitrary nature of death sentencing policy of Indian courts.Death or life imprisonment was the question that once again vexed the Court in Purushottam Dashrath Borate & Anr v. State of Maharashtra (supra). In a verdict rendered last Friday, the Supreme Court, applying the test of “balance sheet of aggravating and mitigating circumstances” sentenced to death two accused- a cab driver and his accomplice- for “brutally” raping and murdering an “innocent and helpless” BPO employee in Pune in 2007. The 22-year-old woman was traveling in her company’s pick-up cab on November 1, 2007, when the driver Purushottam Borate and his friend Pradeep Kokate raped and killed her in a gruesome manner.Confirming the sentence awarded to the duo by the sentencing court and the Bombay High Court, the Bench said that the offence was so meticulously and carefully planned and was executed with sheer brutality and apathy for humanity that in every probability they have the potency to commit similar offence in future.“It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. The act shocks and repulses the collective conscience of the community and the court,” said the bench led by Chief Justice of India H L Dattu, while rejecting the defence counsel’s plea to commute the death penalty to life term. The convicts were heard by the top court only on the point of sentence since notice in the appeal was issued only on that ground.The Bench also stated that punishments must act as a deterrent in view of the rise in violent crimes against women.“There are a shockingly large number of cases where the sentence of punishment awarded to the accused is not in proportion to the gravity and magnitude of the offence thereby encouraging the criminal and in the ultimate making justice suffers, by weakening the system’s credibility. The object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it,” said the Bench.Evidently, the Bench had taken into account societal perception and public opinion as well apart from the brutality of the crime itself in upholding the death sentence awarded to the appellants by the sentencing court and confirmed in appeal by the High Court. But how correct a yardstick is something as indefinite as societal perception or public opinion in mattes of death sentencing? Can courts be swayed by public opinion? Is brutality of the crime by itself sufficient to attract death in case of capital offences?This judgment certainly raises some troubling questions. In relying entirely on the ‘deterrence and retribution’ theory and misapplying the test of balance sheet of aggravating and mitigating circumstances which has been doubted in several Supreme Court judgments as we shall presently see, the CJI Dattu-led 3 judges Bench seems to have given the go-by to Bachan Singh, and brought into focus yet again, the utter confusion and uncertainty surrounding the sentencing policy of the Courts in India.But first, it is necessary to understand the broad legal position vis-à-vis death sentence in India leading up to the present judgment before proceeding further. Any discussion on the subject of death sentencing policy should without doubt commence with the Constitution Bench decision in Bachan Singh, and an understanding of the pre-Bachan Singh and post-Bachan Singh period.Bachan Singh was heard and decided when the Code of Criminal Procedure, 1973 (for short the Cr.P.C) had come into force with effect from 1st April, 1974.Prior to then, Section 367(5) of the old Code dealt with the sentence to be awarded in case of conviction for an offence punishable with death, which read as follows:-“If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.” In the new Code enacted in 1973, Section 354(3) of the Code of Criminal Procedure, 1973 provides for the sentence to be awarded in case of conviction for an offence punishable with death. The said provision requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof.The Cr.P.C., 1973 thus effectively reversed the position as it existed under the old Code and also placed a requirement that if a sentence of death is awarded, the Court should record special reasons for awarding that sentence.The...

The unending uncertainty in the Death sentencing Policy of Indian Courts

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