Death sentence to be imposed only if no possibility of reform in convict: Supreme Court

Meeting the standard of 'rarest of rare' for the award of the death penalty requires courts to conclude that the convict is not fit for any kind of reformatory and rehabilitation scheme, and does not have to do only with the grave nature of the offence, held a three-judge bench of the court led by the Chief Justice of India.

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IN a significant order, the Supreme Court has held that a death sentence cannot be imposed upon a convict merely on account of the grave nature of the crime, but only if there is no possibility of reformation in a criminal. 

It said multiple previous judgments by it have highlighted that it is the duty of the court to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty.

"Despite this, in the present case, no such enquiry was conducted and the grievous nature of the crime was the only factor that was considered while awarding the death penalty," the court said.

It noted that the law laid down in its Bachan Singh judgment in 1980 requires meeting the standard of 'rarest of rare' for the award of the death penalty, which requires courts to conclude that the convict is not fit for any kind of reformatory and rehabilitation scheme.

A three-judge bench comprising Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices Hima Kohli and P.S. Narasimha passed a judgment to this effect while commuting the death sentence imposed on the petitioner Sundar alias Sundarrajan, who was convicted for kidnapping and murdering a seven-year-old child. The petitioner was alleged to have picked up the victim while he was returning from school in a school van in July 2009.

The bench, however, made it clear that the petitioner would not be entitled to any reprieve or remission until he completes 20 years of imprisonment.

The bench noted that it could not be said that there was no possibility of reformation even though the petitioner had committed a ghastly crime.

"We must consider several mitigating factors: the petitioner has no prior antecedents, was 23 years old when he committed the crime and has been in prison since 2009 where his conduct has been satisfactory, except for the attempt to escape prison in 2013. The petitioner is suffering from a case of systemic hypertension and has attempted to acquire some basic education in the form of a diploma in food catering. The acquisition of a vocation in jail has an important bearing on his ability to lead a gainful life," the bench highlighted.

The ruling came on a review petition filed by the petitioner in view of the law laid down by the Supreme Court in Mohd. Arif alias Ashfaq versus Registrar, Supreme Court of India (2014) in which it was held that review petitions arising from the conviction and the imposition of a sentence of death must be heard in open court and cannot be disposed of by circulation, that is, without an open court hearing. Sundar's review petition had been earlier dismissed by way of circulation.

Though the bench commuted the death sentence, it refused to set aside the conviction, finding that there was no error apparent on the face of record warranting interference by it. It observed that two witnesses saw the accused taking away the victim on his motorbike after he got down from the school bus while returning.

"[Two prosecution witnesses] also identified the petitioner upon his arrest at the time of the test identification parade which was found to have been properly conducted. Furthermore, both of the witnesses also provided unimpeachable evidence in their respective cross-examinations before the trial court. The trial court also followed the proper procedure in taking the testimony of [the second prosecution witness], a child witness, by recording the maturity of the mind of the child, who even identified the motorbike before the Court. The aforementioned evidence shows that the victim was last seen with the petitioner," the bench held.

But on the question of the death sentence, the bench took a grim view of the approach adopted by the trial court and the high court. It noted that a meaningful, real and effective hearing was not afforded to the petitioner-convict while sentencing him to death. Besides, the bench noted that the trial court did not conduct any separate hearing on sentencing and did not take into account any mitigating circumstances pertaining to the petitioner before awarding the death penalty.

The high court also took into account the gruesome and merciless nature of the act. It reiterated the precedents stating that the death penalty is to be awarded only in the rarest of rare cases. However, it did not specifically look at any mitigating circumstances bearing on the petitioner, according to the Supreme Court.

The bench took exception to the use of patriarchal language by the Supreme Court in its judgment considering aggravating circumstances while deciding the appeal against conviction. The Supreme Court had then observed:

"The choice of kidnapping the particular child for ransom was well planned and consciously motivated. The parents of the deceased had four children – three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child, has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances."

In the instant judgment, the CJI-led bench, acting in its review jurisdiction, expressed displeasure at such language, noting that, "We wish to note that the sex of the child cannot be in itself considered as an aggravating circumstance by a constitutional court. The murder of a young child is unquestionably a grievous crime and the young age of such a victim as well as the trauma that it causes for the entire family is in itself, undoubtedly, an aggravating circumstance. In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context."

The bench also made reference to a recent study by Project 39A, a legal research, pro bono litigation and public engagement centre at the National Law University, Delhi, which examined all Supreme Court judgments involving a death sentence delivered between 2007 and 2021, as part of which it analysed the exercise of the review jurisdiction in capital punishment cases.

It noted that during the period covered by the study, before Mohd. Arif, review petitions were dismissed by circulation and capital punishment was confirmed in all of them.

Out of these, 13 were reopened in view of Mohd. Arif, which resulted in only four re-confirmations of the death penalty. On the other hand, seven judgments resulted in commutation of death sentences, one in acquittal, and one case being abated due to the death of the prisoner.

The bench thus said that the data by Project 39A shows that oral hearings in review petitions due to Mohd. Arif led to a change in the outcome of a death penalty confirmation.

The data also indicates that it is not merely the oral hearing of review petitions that have changed the outcomes.

"There may also be a correlation between the ultimate outcome changing and different judges being involved as part of the review process instead of the same judges who had originally decided the appeal. Post Mohd. Arif, this happens when the judges who were members of the original bench have demitted office by the time the open court review comes for hearing," the bench highlighted.

The bench also observed that in the cases in which the sentence of death was commuted to life imprisonment, that is, seven cases from the first lot of 13 re-opened review cases and three cases from the second lot of ten fresh review cases, all of the benches in review were of a different composition from the bench that decided the appeal. The one case which resulted in acquittal also had a different bench in review from the one in appeal. On the other hand, in the 11 cases which re-confirmed the death sentence, seven benches had a composition of one or all the judges being the same as the bench that decided the appeal.

"While the above data is not conclusive and the correlation may not necessarily equate to causation, we find it appropriate to mention as the present case is also one of those being re-opened and re-heard as a result of the decision in Mohd. Arif. We clarify by way of abundant caution that being both a smaller bench and having not been called upon to consider the impact of different judges sitting in the review of an appeal confirming the death sentence, we are not deciding on the merits of the proposition," the bench said.

Before closing the matter, the bench also initiated contempt proceedings against the Sub-Inspector of Police, Kammapuram at Cuddalore district of Tamil Nadu for not disclosing to the court that the petitioner attempted to escape from prison on November 6, 2013. The bench said that the non-disclosure of material facts amounts to misleading this court and to an attempt at interfering with the administration of justice.

Click here to view the Supreme Court's judgment.