rarest of rare doctrine

‘Never Endeavoured to Make Death Penalty Redundant,’ Says Supreme Court

While stating that capital punishment cannot be ignored as long as it is in the law books, it also qualified that it should be resorted to only in the rarest of rare cases.

New Delhi: The Supreme Court said on Friday signalled that it would not abolish the death penalty, saying there has “never been an endeavour on the part of the judiciary to make the death penalty redundant” and that shall be enforced in “deserving cases”.

A three-judge bench, led by Justice A.M. Khanwilkar, made the remarks on Friday, June 24, while upholding the death penalty awarded to a man for the rape and murder of a seven-and-a-half-year-old mentally and physically challenged girl from Rajasthan in 2013.

“The quest for justice in such cases, with death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has be avoided, even if the matter indeed calls for such a punishment,” LiveLaw quoted the bench as saying.

The order assumes significance as civil society members have argued that the death penalty does not act as a deterrent in cases of sexual violence, while also observing that there it is invoked more often against marginalised sections of society.

The judges clarified that the judiciary cannot ignore the death penalty as an “alternative punishment” as long as it remained in the law books. However, it also affirmed that capital punishment should be awarded only in the rarest of rare cases and even proposed extended prison terms without remission.

In the particular case, the court observed that the crime had been of “extreme depravity”, shocking the conscience, particularly looking at the target (a seven-and-a-half-year-old mentally and physically challenged girl) and then, looking at the manner of committing murder, where the hapless victim’s head was literally smashed, resulting in multiple injuries including a fracture of the frontal bone.

“The judicial process, in our view, would be compromising on its objectivity if the approach is to nullify the statutory provision carrying death sentence as an alternative punishment for major offences (like that of Section 302 IPC), even after it has passed the muster of judicial scrutiny and has been held not unconstitutional,” the bench noted.

The court categorically stated that the hunt for mitigating circumstances to help save a condemned prisoner from the noose should not be an excuse to forsake the death penalty.

“The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found; or if not found, be deduced anyhow so that the sentence of death be forsaken. Such an approach would be unrealistic, unwarranted and rather not upholding the rule of law,” the bench clarified.

The court also rejected the suggestion made on behalf of the appellant that his psychological evaluation report may be called. While upholding the death sentence, the court noted that the man’s conduct even after the crime had shown he was beyond reform. He is also accused of murdering a fellow jail inmate.

The Rajasthan high court sentenced the convict to a death sentence on May 29, 2015, which the apex court upheld. The high court had said the case falls within the category of the rarest of rare cases and had upheld the judgment, in turn, passed by a sessions court.

“In our opinion, the judgment passed by the sessions court suffers from no error,” the high court had said. The man kidnapped, raped and murdered the girl on January 17, 2013.

In April this year, another bench of the Supreme Court commuted the death sentence of a man who was convicted of raping a four-year-old girl to life imprisonment, saying there are other ways of “repairing the crippled psyche of the offender” than handing out the maximum punishment prescribed.

The bench of Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi said it was “balancing the scales of retributive justice and restorative justice” and sentenced the convict to 20 years of imprisonment.

(With PTI inputs)

‘Maximum Punishment Not Always Determining Factor’: SC Commutes Death Sentence of Rape Convict

The top court said there are other ways of “repairing the crippled psyche of the offender” than handing out the maximum punishment prescribed.

New Delhi: The Supreme Court on Tuesday commuted the death sentence of a man who was convicted of raping a four-year-old girl to life imprisonment, saying there are other ways of “repairing the crippled psyche of the offender” than handing out the maximum punishment prescribed.

The court said it was balancing the scales of retributive justice and restorative justice, deeming it appropriate to sentence the convict to 20 years of imprisonment instead of imprisonment for the remainder of his natural life.

According to LiveLaw, the case deals with a man, Feroz, who was convicted by the trial court of raping and murdering a four-year-old in April 2013. The trial court found him guilty of several offences. He was sentenced to death under Section 302 (murder) of the Indian Penal Code (IPC); to undergo rigorous imprisonment for 7 years and pay a fine of Rs 2,000 for the offence under Section 363 (kidnapping); to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs 2,000 for the offence under Section 366 (abducting a woman in order that she may be forced or seduced to illicit intercourse) and to undergo life imprisonment and pay a fine of Rs 2,000 for the offences under sections 376 (rape) read with certain sections of the Protection of Children from Sexual Offences (POCSO) Act.

Also Read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape

The high court confirmed the death penalty and turned down the convict’s appeal. Feroz then approached the Supreme Court.

Dealing with the petition, the Supreme Court acknowledged that though the prosecution’s case was based on circumstantial evidence, it had proved beyond reasonable doubt that all other hypotheses except the guilt of the convict could be ruled out.

“It was duly proved that while committing the barbaric acts of rape and sexual assault on the young child-victim aged about 04 years, the appellant-accused had inflicted bodily injuries as mentioned in the post-mortem report which had caused her death,” the bench of Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi wrote.

The court affirmed the trial court’s order convicting Feroz of offences punishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 of the IPC and section 5(i) read with section 6 and section 5(m) read with section 6 of the POCSO Act.

However, coming to the question of the death penalty, the judges deemed it proper to commute it to life imprisonment. The court observed that since punishment for rape is also applicable to the convict and “considering the gravity and seriousness of the offence”, the sentence of imprisonment for the remainder of his natural life would have been appropriate.

The judges added:

“We are reminded of what Oscar Wilde has said – ‘The only difference between the saint and the sinner is that every saint has a past and every sinner has a future.’ One of the basic principles of restorative justice as developed by this court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender.”

The judge said, while balancing the scales of retributive justice and restorative justice, it would be appropriate to sentence the convict to imprisonment for a period of 20 years instead of imprisonment for the remainder of his natural life for the offence under section 376A of the IPC. The conviction and sentence recorded by the courts for the other offences under the IPC and POCSO Act were also affirmed by the court, adding that the punishments imposed shall run concurrently.

While several governments have passed laws that provide for the death penalty in rape cases, civil society members have argued against using capital punishment as a deterrent against sexual violence. The Supreme Court has also often made the case for reformation rather than retribution, reiterating that the doctrine “rarest of rare” doctrine cannot be applied broadly.

Abhorrent Nature of Crime Alone Cannot Be Decisive Factor to Award Death Sentence: SC

Commuting the death sentence awarded to a man convicted of raping and killing a minor, the court asked judges to also consider the mitigating factors in favour of life imprisonment.

New Delhi: The Supreme Court on Wednesday said the abhorrent nature of the crime alone cannot be the decisive factor for awarding the death sentence, asking judges to also consider the mitigating factors in favour of life imprisonment.

Delivering a judgment that may set a significant precedent, the top court commuted the death sentence awarded to a man for raping and murdering a seven-year-old girl to life imprisonment. “It cannot be said that there is no probability of the convict being reformed and rehabilitated,” the bench of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar said.

According to The Hindu, Justice Maheshwari, who authored the judgment, referred to the “evolution of the principles of penology”, which had grown to accommodate the philosophy of “preservation of human life”.

The judge said though capital punishment serves as a deterrent and is sometimes handed out as a “response to the society’s call for appropriate punishment in appropriate cases”, the principles of penology have “evolved to balance the other obligations of the society, i.e., of preserving the human life” unless “termination thereof is inevitable and is to serve the other societal causes and collective conscience of society”, according to The Hindu.

The verdict says there exist other options, such as life imprisonment without remission or premature release.

The apex court, while upholding the man’s conviction for the offences including that of murder and rape under the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences (POCSO) Act, said the convict shall not be entitled to premature release or remission before undergoing actual imprisonment for 30 years.

The bench delivered its verdict on the appeal against the October 2017 judgment of the Allahabad high court which had confirmed the death sentence awarded to the convict by the trial court.

The trial court had in December 2016 convicted the man for several offences and sentenced him to death for the offence under section 302 (murder) of the IPC.

The appellant was about 33-34 old at the time of the commission of the crime in 2015. Looking at the overall facts and circumstances, the Supreme Court said it would be “just and proper to award the punishment of imprisonment for life to the appellant for the offence under section 302 IPC while providing for actual imprisonment for a minimum period of 30 years”.

In its 98-page judgment, the bench noted that the appellant was accused of enticing a seven-year-old girl to accompany him on the pretext of picking fruits and thereafter raped her. The appellant had murdered her and dumped the body near a bridge on a riverbank.

The bench said both the trial court as also the high court had taken the abhorrent nature of the crime alone to be the decisive factor for awarding death sentence in the case.

“In other words, the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature,” it said.

The apex court said the heinous nature of the crime, like that in this case, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience.

It said at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family as well as unblemished jail conduct.

“When all these factors are added together and it is also visualised that there is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category,” it said.

“Putting it differently, when the appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated,” the bench said.

It said even when the case is taken to be not falling in the category of ‘rarest of rare’, the impact of the offences committed on the conscience of the society as a whole cannot be ignored.

While observing that the appellant was rightly convicted by the trial court and his conviction was rightly maintained by the high court, the bench said the sentence awarded, being of termination of natural life, requires closer scrutiny concerning the statutory requirements of section 354(3) of the CrPC as also the principles enunciated by the apex court.

Also Read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape

Referring to an earlier judgment delivered by the apex court on an appeal against conviction and death sentence awarded for rape and murder of a two-and-a-half-year-old girl, the bench noted that in that matter, a table of 67 cases decided by the Supreme Court over the past 40 years was perused.

The bench noted it was observed that when the offences were of sections 376 (rape) and 302 (murder) of the IPC and the age of the victim was under 16 years, capital punishment was confirmed in 15, but in three, it was later on commuted to life in review.

“It could readily be seen that while this court has found it justified to have capital punishment on the statute to serve as a deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society,” it said.

Dealing with the case, the bench observed it is proved beyond doubt that the hapless child met with her gruesome end after having been treated inhumanely and having been subjected to sexual assault.

It noted that the victim was last seen in the company of the appellant and he has failed to satisfactorily explain his whereabouts and his knowledge of the location of the dead body.

The death sentence awarded to the appellant for the offence under section 302 IPC is commuted into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 (thirty) years, the bench said, while partly allowing the appeal filed by the convict.

(With PTI inputs)

Report Reveals 95% of Death Sentences in India are Thrown Out By Higher Courts

Less than 5% of those sentenced to death in trial courts finally have their sentences confirmed, but spend years on death row before their commutation or even acquittal.

In addition, 29.8% of those sentenced to death by trial courts are acquitted of the crime at higher courts.

Credit: pixabay

Discussions around the death penalty in India most often refer to the ‘rarest of rare’ doctrine. This doctrine was formalised in the 1980 Bachan Singh vs State of Punjab judgment, establishing that a person could be sentenced to death only in the rarest of rare cases – both in terms of the crime committed, and also whether the convict was seen as beyond possible reform and rehabilitation.

Source: Death Penalty India Report, Volume II

But how do courts at different levels interpret this doctrine? Recent data published by the Centre on the Death Penalty in their Death Penalty India Report for the period 2000-2015 highlights serious inconsistencies in the judiciary’s approach.

The number of individuals sentenced to death by trial courts in this period across India was 1,810. However, the report’s analysis is based on 1,486 cases where the first appeal had already been decided at the time of research, and where the nature of the offence could be determined through reported judgments.

Two data points literally leap out of the report.

First, is the seemingly unwarranted proliferation of death sentences. It turns out that of the 1,486 prisoners sentenced to death by trial courts, only 73 death sentences – merely 4.9% of the total – are eventually confirmed after the appeals process in the high courts and the Supreme Court ends. However, this doesn’t mean that they will be hanged as they have the final recourse of taking their appeals to the president.

Second, and just as shocking, nearly one-third of those sentenced to death in trial courts were ultimately acquitted. Thus, of the 1,486 individuals sentenced to death, as many as 443 – 29.8% of the total – were found by higher courts to be not just undeserving of the death sentence but actually to be innocent of the crime for which they were being sent to the gallows.

There are two ways of looking at these figures.

One would be to say look, at least the country has a legitimate appeals process, and that only 73 prisoners were finally sentenced to death in the last 15 years. So whatever the trial courts may have said, India’s higher courts are capable of ensuring that the “rarest of rare doctrine” is respected, and that only those who “really deserve it” are sentenced to death once the process is over.

The other view, though, raises more questions than answers. Why aren’t we looking at what the prisoners are going through? Maybe they aren’t being finally made to face the hangman, but what about the years they spent on death row, the trauma they and their families faced? What meaning is really left in the “rarest of rare” doctrine once we know these statistics?

“[These statistics] call for a deeper interrogation into the reason for the imposition of the death penalty by trial courts in the overwhelming number of cases where it is found to be unwarranted by the high courts. In this context, it is important that we acknowledge the mental anguish as well as the social and economic repercussions of a death sentence on the prisoners and their families before the latters eventual acquittal or commutation,” the report says.

High courts in the country have acquitted 428 prisoners sentenced to death by trial courts in the last 15 years (one of whose sentences was later enhanced to death by the Supreme Court), and the Supreme Court acquitted 15 prisoners whose death sentences were confirmed by high courts and one whose sentence was confirmed by a Terrorism and Disruptive Activities (Prevention) Act (TADA) court. The funnel, as one moves from trial court to high court to Supreme Court gets narrower and narrower:

Source: Death Penalty India Report, Volume II

For the 15 acquitted by the Supreme Court, the average duration spent on death row was 41.1 months – that’s almost 3.5 years. Even the appeals process is often hard to manoeuvre for prisoners, alienated as they are from the justice system.

Source: Death Penalty India Report, Volume II

One of the researchers on the project, Chinmay Konjia, has written about what life after acquittal was like for a former death row prisoner Adambhai Suleiman Ajameri. Ajameri was an accused in the Akshardham Temple case of 2002, and had spent 11 years in prison (eight of those on death row) before his acquittal.

“When we first met Adambhai at the Sabarmati Central Jail in February 2014, we found a man who had given up hope for justice and freedom,” Konjia wrote. “Adambhai had persistently pleaded innocence, but was convinced that nobody wanted to listen. His hopes revived only when the case reached the SC. While acquitting all the accused, the apex court was scathing in its criticism of the incompetent investigation and sharply admonished the police and the then Gujarat home minister, CM Narendra Modi.”

Adambhai’s denials were met with torture, the “horrific details” of which “made my blood run cold”:

“When physical torture didn’t elicit the desired response, investigators would resort to emotional torture by threatening physical and sexual violence on his family. Eleven years of his life cruelly snatched away from him and his family has left Adambhai a broken man. A free man for six months, he was still struggling to rehabilitate himself to many things new. Years passed like a blink, Ahmedabad itself has changed with widespread ‘development’ and old acquaintances had moved on. Adambhai is struggling to make sense of these changes. He had forgotten places, routes and directions in the city he had once lived in. Could the state ever compensate him, give back his children and wife those tortured years? The unspoken question hung in the air as I took his leave.”

Experiences of prisoners currently on death row about their trials and appeals process collected by the death penalty project and published in the Death Penalty India Report may also serve as an example of what this process is like for prisoners:

“Earning his livelihood as a daily wage labourer in the stone crushing industry, Ramanand had no means to hire a private lawyer to argue in his trial. Not only did his legal aid lawyer refuse to explain the case details or how the trial was proceeding, but also failed to discuss the different sentences that could be imposed. Consequently, the initial faith in his lawyer transpired into a complete lack of trust by the end of the trial proceedings.”
“Srajan had little opportunity to understand the evidence presented against him. His lawyer interacted with him only once during the entire trial. While he was present for all hearings, he was made to stand at the back of the courtroom from where he could not even hear the witness depositions, let alone understand the evidence given by them against him.”
“Ramrang, one of the multiple sentenced to death in a case, said that he was examined along with three other accused under section 313. The judge did not ask each of them for their version and posed questions to only two of the four accused. Having never spoken to his privately appointed lawyer, Ramrang was not asked any questions by the sessions judge. As a result, he was sentenced to death without a single opportunity to discuss his defence either with his lawyer or the judge. ‘Be it the government, the police or the judge, no on heard our pleas,’ Ramrang said.”
“Lokesh knew neither the legal aid lawyer who argued his appeal before the high court nor was he taken for the proceedings. During his interview, Lokesh was even unaware about which high court had decided his criminal appeal. The level of awareness was even worse for his family, who had their hopes pinned on the high court’s verdict, where the death sentence had already been confirmed.”

The experiences of prisoners in the legal system during the long confirmation and appeals process, along with stories from those living on death row, create an image of what prisoners sentenced to death and their families go through, even if they may never actually face the gallows.

Names of prisoners have been changed for anonymity More information on the report and the Centre on the Death Penalty is available here.