In Shankar Kisanrao Khade v. Maharashtra, the Supreme Court expressed concerns about lack of a coherent and consistent purpose and basis for awarding death and granting clemency. Therefore, it asked the LCI to examine whether death penalty is a deterrent punishment or whether it is retributive justice or serves an incapacitative goal. Another issue that was raised by the court was that while the standard followed by the judiciary for granting death penalty (the rarest of the rare principle) is known, the standard applied by the executive in granting commutation is not known which makes it imperative for the LCI to look into it, .
 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546. Hereinafter, ‘Khade’.
 Law Commission of India, hereinafter, ‘LCI’.
The 35th Report had concluded that “at the present juncture, India cannot risk the experiment of abolition of capital punishment,” and it recommended that “capital punishment should be retained in the present state of the country”. The LCI while trying to understand the current scenario found out that according to the Crime in India reports, published by the National Crime Records Bureau (‘NCRB‘) under the aegis of the Ministry of Home Affairs, the murder rate has been in continuous and uninterrupted decline since 1992, when it was 4.6 per lakh of population. As per the latest figures for 2013, the murder rate is 2.7 per lakh of population, after having fallen further from 2012, when it was 2.8. This decline in the murder rate has coincided with a corresponding decline in the rate of executions, thus raising questions about whether the death penalty has a greater deterrent effect than life imprisonment.
On an average, the NCRB records that 129 persons are sentenced to death row every year, or roughly one person every third day. In the Khade case, the Supreme Court took note of these figures and stated that this number was “rather high” and appeared to suggest that the death penalty is being applied much more widely than was envisaged by Bachan Singh. The subjective and arbitrary application of the death penalty has led “principled sentencing” to become “judge-centric sentencing”, based on the “personal predilection of the judges constituting the Bench.”
In 1967, when the 35th Report was presented, only 12 countries had abolished capital punishment for all crimes in all circumstances. Today, 140 countries have abolished the death penalty in law or in practice. Further, the number of countries that have remained “active retentionists”, namely they have executed at least one person in the last ten years, has fallen from 51 in 2007 to 39 (as of April 2014). A category of countries have also abolished death penalty for ordinary crimes such as murder and retained it for exceptional crimes such as crimes under military law or under exceptional circumstances. The death penalty is most prominently used in Iran, China, Pakistan, Saudi Arabia and the United States of America.
As per Section 367(5) of CrPC, 1898, for offences where the death penalty was an option, courts were required to record reasons where the court decided not to impose a sentence of death:
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 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.
The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were made, notably to Section 354(3):
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 for such sentence.
The first challenge to the constitutionality of the death penalty in India came in the 1973 case of Jagmohan Singh v. State of U. P. The petitioners argued that the death penalty violated Articles 14, 19 and 21 of the Constitution of India. Supreme Court found that the death penalty was a permissible punishment, and did not violate the Constitution.
In Bachan Singh, the Court adopted the ‘rarest of rare’ guideline for the imposition of the death penalty, saying that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal.
ANALYZING PENOLOGICAL JUSTIFICATIONS
The Committee reinstated that what must be shown to merit the retention of the death penalty, is that the marginal benefits offered by the death penalty i.e. benefits not offered by life imprisonment, are high enough to merit the taking of a life. So it went on to analyse the deterrence and incapacitation impacts of death penalty.
Deterrence a myth
The 35th Report had cited the following (amongst other) reasons in favour of the proposition that the death penalty serves a deterrent value:
1. Every human being dreads death.
2. The death penalty stands on a different footing from imprisonment. The difference is one of quality, and not merely of degree.
3. Experts consulted by the Commission, including state governments, judges, Members of Parliament, Members of State Legislatures, police officers, and advocates were of the view that “the deterrent object of capital punishment is achieved in a fair measure in India.”
4. Whether other forms of punishment possess the advantages of capital punishment is a matter of doubt.
5. Statistics of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect, neither can they be regarded as conclusively disproving it.
6. There is a “considerable body of opinion” to state that death penalty acts as a deterrent.
However, for deterrence to work it is important that all these prerequisites are met:
(a) That potential offenders know which offences merit the death penalty
(b) That potential offenders conduct an analysis of the costs and benefits before or while committing the crime and weigh the death penalty as a serious and important cost
(c) That potential offenders view it a probable consequence that they will be subjected to the death penalty if they commit the crime
(d) That potential offenders are risk-averse and not risk-seeking
(e) That potential offenders give more weight to the costs than the benefits, and choose to not perform the act.
If all the above mentioned prerequisites are met, then it is assumed that the potential offender will be deterred from offending.
A Panel set up by the National Academy of Sciences in the United States, chaired by (Nobel Laureate) Lawrence Klien in its Report concluded that “the available studies provide no useful evidence on the deterrent effect of capital punishment”.
In a similar, extensive review of existing literature, the National Research Council in the United States concluded in a Report published in 2012 that “research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide.”
Knowledge Fallacies: Knowledge fallacies refer to the idea that offenders do not know the penalties applicable to the crimes that they plan on committing. Hence, they do not feel deterred by a severe penalty.
Rationality Fallacies: A major assumption of deterrence theory is that potential offenders are rational decision makers. However, a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or are motivated out of strong emotions such as revenge or paranoia. In circumstances such as these, deterrence is unlikely to operate since the actor is not likely to give due weight, or even a cursory consideration to what penalties might be imposed on him/her subsequently; the focus being on the emotion driving his/her state of mind.
EXCEPTION CARVED OUT FOR TERRORISM
Many are of the view that the death penalty is unlikely to deter terrorists, since many are on suicide missions (they are prepared to give up their life for their ‘cause’), there are other reasons why the death penalty in fact might increase terrorist attacks. The death penalty is often solicited by terrorists, since upon execution; their political aims immediately stand vindicated by the theatrics associated with an execution. They not only get public attention, but often even gain the support of organisations and nations which oppose the death penalty.
The theory of incapacitation deals with offenders in such a way that they are not in a position to re-offend. It is generally used as a justification to impose longer sentences on repeat offenders, “dangerous” criminals and “career criminals.” Capital punishment is the most extreme form of incapacitation, since it implies taking the life of the offender to ensure that he/she does not reoffend. A person is sentenced to death using the incapacitation rationale if it is determined that his/her existence causes an unreasonable threat to society.
This raises a predictability problem as it cannot be known for sure that the person will commit a crime again. Also, death penalty is an excessive punishment when used for the purposes of incapacitation, since the incapacitation function can be achieved by life imprisonment as well.
The Law Commission recognizes that since Dhananjoy Chatterjee v. State of West Bengal, ‘society’s cry for justice’ has been used by as a justification to impose the death sentence. However, this cry for justice fails to focus on whether the convict deservesthe punishment. Such judgments often fail to take into account the aggravating and mitigating factors in each case.
The Law Commission identifies the favourable application of the theory of proportionality in Bariyar. The judgment states that the Court should first compare the facts of the case before it with a “pool of equivalently circumstanced capital defendants.” The death penalty, on the other hand, undermines the communicative aspect of the punishment, since the offender’s life is taken away. Hence, from this perspective, life imprisonment serves the proportionality goal more adequately than the death penalty. Further, death penalty devalues life in the eyes of the common person which is said to empower offenders.
The Court in Mohammad Giasuddin v. State of A.P. held that the modern community has a primary stake in reformation of the offender, and the focus should be therapeutic rather than an “in terrorem” outlook. The Law Commission further reiterates that since there is no way of accurately predicting or knowing with any degree of certainty that a murderer is incapable of reformation dismissal of the same shouldn’t be an option.
ARBITRARY IMPOSITION OF DEATH PENALTY
Despite the Court’s optimism in Bachan concerns that capital punishment is “arbitrarily or freakishly imposed’ continue to grow. The decisions in a number of cases, such as, Swamy Shraddhananda v. State of Karnataka and Mohd. Farooq Abdul Gafur v. State of Maharashtra, are confirmation of the fact that the application of the death penalty is subjective and largely judge centric.
JUDGE CENTRIC APPROACH
The report discusses how the awarding of death sentence or its commutation by the Court depends on the personal predilection of the judges. The Law Commission refers to the Court’s admission in Bariyar in this context.
INCREASED RELIANCE ON MACHHI SINGH
In Bachan Singh, the Court emphasized the importance of individualized yet principled sentencing. In Macchi Singh the applicability of the rarest of rare principle was confined to five distinct categories.
Judges have invoked the categories in Machhi Singh in a manner that suggest that once a case falls within any of the 5 categories it becomes a rarest of rare case deserving the death penalty. Using the same as precedent a line of cases failed to take into account the circumstances of the criminal or the possibility of reform as required under the Bachan Singh. More shockingly, despite this recognition by the Supreme Court, judges continue to impose the death penalty based on the set of considerations laid down by Macchi Singh as opposed to Bachan Singh.
Secondly, Machhi Singh introduced the notion of shock to the collective conscience to death penalty jurisprudence. The applicability of this notion has been questioned in Bariyar.
The desirability of factoring in public opinion and the fact that people’s perception of crime is “neither an objective circumstance relating to crime nor to the criminal.”
LACK OF PRUDENCE IN ADMITTING CIRCUMSTANTIAL EVIDENCE
The Court has, in various cases cautioned that the death penalty should ordinarily be avoided when the conviction is based solely upon circumstantial evidence. Keeping in mind the distinct nature of the death penalty the Court therefore cautioned that it would be prudent to avoid imposing the death penalty. However, similar to the cases discussed above, there is little consistency in following these rules of prudence.
The Law Commission delineates the nature, purpose and scope of the power of the executive to commute a death sentence.
The Supreme Court has critically examined the discharge of mercy jurisdiction by executive authorities in death sentences. It observed that “judicial interference is the command of the Constitution” when the exercise of mercy power by the executive is lacking in due care.
An analysis of the mercy petitions disposed by Presidents suggests that a death-row convict’s fate depends on the ideology and views of the government coupled with the personal views of the Executive Authority himself.
Further, the guidelines issued by the Ministry of Home Affairs have hardly been adhered to.
- Non-Application of Mind
Citing the case of Dhananjoy Chatterjee, where the Governor was not informed about the mitigating circumstances but was advised to reject the mercy petition, the Supreme Court acknowledged that it amounted to a serious error that had prejudiced the convict. The mercy petition preferred by Dhananjoy Chatterjee was subsequently rejected by the executive and he was executed.
- Cases of prisoners sentenced to death under judgments subsequently declared to be per incuriam.
The Law Commission identifies a number of decisions which found the imposition of death sentences to be per incuriam.
- Constitutional implications of pain and suffering imposed on convicts on death row in the pre-execution phase.
It is well acknowledged that death row convicts spend many years exhausting available legal remedies. Even after confirmation of the death penalty by the Supreme Court a convict may have to wait for years on end to hear from the Governor and the President of India on the mercy petition preferred by him. The Supreme Court in its judgment recognizes that delayed executions serve no penological purpose. The Law Commission finds itself in agreement of the same.
RECOMMENDATION AND CONCLUSION
The Law Commission has recommended certain police reforms and a more comprehensive witness protection scheme, in cohesion with a victim compensation system be overseen by the government. Recent trends in the imposition of the death penalty are clearly reflected in the requirement of special reasons for picking life sentences over death penalty in 1955, which transcended to requiring special reasons for the death penalty in 1973. This culminated in the “rarest of rare” threshold of 1980. This is especially significant in light of the widening of the ambit of the right to life’s contents and the strengthening of due process in the nexus between an individual and the state. The heightened importance of human dignity is the largest impetus for the abolition of the death penalty. While there has never been any criminological justification for treating terrorism any differently from other offences in light of the death penalty, concerns have been raised over greater threats to national security. Hence, in light of various legislative concerns, the Law Commission saw no valid justification for resisting the abolition of the death penalty for offences that were divorced from terrorism. Additionally, they emphasized the need for an irreversible, permanent abolition of the death penalty for all other offences.
 Bachan Singh v. State of Punjab, (1980) 2 SCC 684. Hereinafter, ‘Bachan Singh’.
 Sangeet v. State of Haryana, (2013) 2 SCC 452.
 Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767.
 Code of Criminal Procedure, 1973. Hereinafter, ‘CrPC’.
 Jagmohan Singh v. State of U. P., (1973) 1 SCC 20.
 Constitution of India, 1950.
 Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220. Hereinafter, ‘Dhanonjoy Chatterjee’.
 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498. Hereinafter, ‘Bariyar’.
 Mohammad Giasuddin v. State of A.P., (1977) 3 SCC 287.
Supra note 5.
Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
Machhi Singh v. State of Punjab, (1983) 3 SCC 470.
 Bariyar case.
 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.