The case before us today is a landmark judgment from 1980, of the Supreme Court of India, for the matters of the court relating to the death penalty also known as the capital punishment, under which a criminal is executed due to the grave and exceptionally heinous crimes committed by him. “Bachan Singh vs the State of Punjab” is the case in which the rarest of the rarest cases doctrine was developed by the court which limited capital punishment to only be awarded to criminals in the rarest of rare cases.
The appellant Bachan Singh was convicted by the Sessions Court for the murder of 3 people in a heinous fashion and therefore awarded him the Death Penalty for doing the same to which he contested and appealed before the High Court for a review of the grave punishment of Death given by the lower court. The High Court in its judgment dismissed Bachan Singh’s appeal by agreeing with the order of the lower court and was of a similar view that the death penalty must be awarded to him considering the severity of his crimes. To the order of the High Court, Bachan filed an appeal in the Apex Court to review the orders of the lower courts and repeal the punishment awarded to him as he believed that the death penalty did not align with the constitution.
Is the death penalty to be awarded as a punishment for the crime of murder by the virtue of Section 302 of the IPC, unconstitutional?
Do the courts possess unnecessary and arbitrary power, to award the death penalty to convicts found guilty of heinous crimes?
In the Indian context, the death penalty as a punishment of grave offenses such as murder is governed by the following legislation –
Section 302 of the Indian Penal Code states “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”
Section 354(3) of the Criminal Procedure Code states “When the conviction is for an offense 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 for such sentence.”
The council from the side of the appellant was of the view that the imposition of the death penalty as a punishment of an offense was ultra vires to the provisions of the constitution as it violated the fundamental right to freedom provided by the constitution under Article 19 and therefore the death penalty as a concept provided under Section 302 of the IPC must be thrashed for reasons mentioned above.
The majority of the judges concerned with the matter disregarded the contention that the death penalty as a punishment was infringing the right to freedom granted through Article 19 of the Indian constitution as the right provided under Article 19 are not unalterable and they can be curtailed as they are prone to certain restrictions which can be imposed if an individual infringes the rights of other like in the case of murder in which a criminal restricts the right to life of their victims. The legal maxim of ‘sic utere tuo ut alienum nonlaedas’ which means using your property in a way that does not violate the rights of other individuals was a maxim used by the majority of judges to explain the simple fact that your rights can be restricted if you intervene with others’ rights.
On the second issue, which was whether the courts enjoyed arbitrary power in dealing with such cases and providing capital punishment as a form of justice to the victims, the court was of the view that the death penalty will be only be awarded in the rarest of the rare cases and established this new doctrine which although simply meant that several factors such as the uniqueness of the crime, the personal situation of the criminal, brutality of the offense, will be considered while imposing death penalty punishment on a convict, in hindsight it left a gap in the system in the sense that it is quite subjective what constitutes “rarest of the rare” and it, therefore, falls on the shoulders of the judges to decide the same case by case.
Interestingly, one of the judges of the 5-judge bench of the Supreme Court, Justice PN Bhagwati provided a dissenting opinion from the other judges as he believed that the death penalty was violative of the fundamental right as mentioned in the constitution and must be abolished.
This article is written by Shourya Trehan of MIT WPU PUNE.