The author, Barkha Batra, is a third-year student at Ashoka University, majoring in Political Science with a minor in International Relations.
To kill or not to kill: The Constitutionality of Capital Punishment
Capital punishment has been part of the Indian Penal Code since 1898. In 2018, the Supreme Court of India accorded the death penalty to the 162 people - the highest number in the last twen- ty years. India is also one of only fifty eight countries in the world that haven’t entirely abolished or introduced a moratorium on capital punishment law. This begs the question: in a country with a constitution so robust and committed to the preservation of individual rights and liberty, does capital punishment still have a place in penological law? Since the establishment of the Indian Constitution, a number of challenges to the constitutionality of the death sentence have arisen through Supreme Court petitions. The matter was seen as ‘settled’ in the landmark judgement of Bachan Singh vs State of Punjab (1980), which held that the death penalty is indeed constitutional. However, the judgement also promulgated the ‘Rarest of Rare’ Doctrine, holding that the death penalty should only be accorded in exceptional or rare cases. This essay essentially seeks to make a case against capital punishment and the rarest of rare doctrine, arguing that it is both ineffective, and that it violates the principles enshrined in the Constitution - particularly those of Article 14, Article 19, and Article 21.
1. History and Scope of the Death Penalty
There are seven crimes under which offenders may be sentenced to the death penalty . These include inter alia: (i) murder, (ii) dacoity accompanied with murder, (iii) abetment of suicide of a minor or insane or intoxicated person. The first challenge to the death penalty came in 1973, with Jagmohan Singh vs State of Uttar Pradesh.4 This claimed, under Articles 14, 91, and 21, (i) judges possessed the arbitrary power to impose the death penalty, (ii) the death penalty annihilat- ed all fundamental freedoms under Article 19, and (iii) there was no fair sentencing procedure with regard to the death penalty. The Bench in this judgement disagreed with the claims, uphold- ing that the death penalty did not violate any fundamental rights or freedoms, and that it was in- deed constitutional. The next development in capital punishment regulation came from Maneka Gandhi vs Union of India, which ensured two essential safeguards: first, that not all fundamental rights are distinct from one-another. This meant that just because a law satisfied the requirement of one fundamental right, it was not exempt from operation within the scheme of other funda- mental rights as well. Specifically, in order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 collectively. Further, this judgement asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’ and couldn’t be ‘fanciful, oppressive, and arbitrary.’ It was under this framework that the five judge Bench considered the landmark challenge to capital punishment in 1980, through Bachan Singh vs State of Punjab.
2. Bachan Singh: The Judgement
In 1979, Bachan Singh was convicted and sentenced to death under Section 302 of the Indian Penal Code8 for the murders of Durga Bai, Veeran Bai, and Desa Singh. The judgement is a de- tailed and comprehensive one, analysing various arguments both against and in favour of the re- tention of capital punishment in India. In particular, the judgement examines whether Section 302 is violative of Articles 19 and 21, and further investigates the morality behind the retention of death penalty. With a 4:1 majority, the Bench concludes that Section 302 is in fact legitimate, and does not violate any fundamental rights. It agrees that capital punishment serves a retributive so- cial purpose and must therefore be retained, although the judiciary must exercise their discretion - imposing the sentence only in the most ‘exceptional and grave circumstances’ - ie, in the rarest of rare cases. The Bench, with input from the 35th report of the Law Commission , puts forth various arguments in support of the same.
First, with regard to Article 19, the judgement claims that the contention against death penalty is invalid, since it incorrectly assumes that the freedoms guaranteed by Article 19 (1) are absolute and inviolable.10 The court provides the analogy of an individual practicing the profession of a hitman, and claiming she has a legal right to do so under Article 19 (1)(g).11 Thus, the court dis- misses the applicability of Article 19 to Section 302 (IPC), asserting that under clauses 2 through 5, these rights are subject to reasonable restrictions imposed by the State, which may even allow the State to prohibit the exercise of these rights under certain circumstances. Thus, it is legitimate for the State to exercise its power as a retributive measure. The court also provides a moral rea- soning under Article 19, claiming that these fundamental freedoms must also be subject to ‘inherent restraints’ wherein a member of society is morally responsible not to use her own freedom to infringe upon someone else’s.
The second argument provided by the judgement, with substantial backing from the 35th Law Commission report, is the fact that capital punishment serves as an effective deterrent against fur- ther crimes being committed. To support this claim, it cites the work of previous Judgements, international governments, Judges, Members of Parliament, and members of Parliament, all of whom seem to agree that retaining the death penalty will deter subsequent criminal behaviour. The judgement therefore concludes: (a) that every human being is afraid of death, (b) death penalty qualitatively stands on a “totally different level” in comparison to alternative punish- ments such as life imprisonment. It is crucial to note, however, that this conclusion comes purely from theoretical arguments, with the judgement admitting that there is no empirical or statistical backing to this claim. Quote: “Due to the inconstancy of social conditions, it is not possible to assess with any degree of accuracy, as to whether the variation in the incidence of capital crime is attributable to the presence or absence of death penalty.”
The judgement then moves on to review death penalty in light of Article 21. Since this judge- ment was passed after the landmark Maneka Gandhi case, Article 21 was to be interpreted using a fair, just, and reasonable procedure. In its defence of capital punishment, the Bachan Singh Bench interpreted the updated Article 21 in ‘converse positive form,’ now reading: “A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.” This logic is further extended to prove that the Constituent Assembly was indeed accepting of the power of the State to deny an individual her life or personal liberty in certain circumstances and in accordance with established procedures. It was therefore established that Article 21 included the stripping of life or personal liberty for punitive purposes.
Finally, the judgement made a number of miscellaneous arguments, including the fact that some murders are so cruel and inhuman that they cannot be blamed on social or psychological factors. Similarly, if the victim is someone who is socially or politically eminent - whose murder will “rock society to its very foundation,” the death penalty will serve as an example of society’s disapproval. Other arguments, resting on the report of the Law Commission, include that due to the diversity in India’s population with respect to morality, education, and area, India cannot risk ‘experimenting’ with abolition.
The judgement was, however, cognisant of the fact that the death penalty is indeed a brutal and barbaric form of punishment, and therefore established the rarest of rare doctrine, advising caution in passing the sentence. However, the court did not lay any guidelines or procedures in light of this doctrine, leaving the passing of the sentence to the discretion of the judge handling any case. The court also acknowledged that the case of death penalty is a contemporary one, and must be re-evaluated with the evolving morals and principles of a society. Almost forty years later, the time to do so has long come.
3. Rights-Based Critique
This section essentially seeks to criticise various fallacies within the Bachan Singh judgement and the promulgation of the ‘rarest of rare’ doctrine, primarily based on Articles 14 and 21 of the Constitution. At the outset, it is critical to take into account the fact that the Constitution cannot merely be read as a didactic, scholastic text. It is also a manifestation of various values and principles cherished by society, and at its core, its project is to sustain and support the the dignity of the individual. The Constitution has therefore enacted Fundamental Rights that ensures a certain social and judi- cial security to the individual, limiting the power of the State and its institutions. The Directive Principles of State Policy, too, are committed to the creation of a society that ensures social, eco- nomic and political justice and security to the individual. Thus, the Constitution does not simply ensure the existence of law and order. At the heart of the text is the commitment to the protection of the basic rights and liberties of the individual. Capital punishment takes away from this core principle.
3.1 Article 14
The first contention against the judgment lies with the arbitrariness of the Rarest of Rare Doc- trine. Under the Maneka Gandhi judgement, it was asserted that Article 14 also served as protec- tion against the arbitrariness of the legislature or the executive, with the Court stating that when an act of the State is arbitrary, it is clearly unequal both with respect to ‘political logic and consti- tutional law,’ and is therefore a transgression towards Article 14. With this in mind, the aforemen- tioned doctrine is clearly violative of Article 14, since it does not function under any established guidelines or framework. Under this doctrine, a judge has the discretionary authority to apply the law of capital punishment to her own will - the exercise of judicial power through capital pun- ishment is discretionary and arbitrary, and therefore antithetical to Article 14 as laid down in Maneka Gandhi vs Union of India (1978). Further, as contented by Justice Bhagwati, the Doctrine, in its absence of guidelines or norms, enables the judiciary to judge in a haphazard and in- consistent manner. In enabling the exercise of discretion, the Doctrine is also enabling the author- ity to discriminate - while the judge may be trained to be unbiased, she is still prone to the whims of subjectivity, socialisation, and human nature. Without a framework, a judge will impose the death penalty according to her own belief system.With this power, the State is equipping her to discriminate, further violating the conditions of Article 14.
An investigation into the socio-economic profiles of those on Death Row in India proves this ar- gument. Statistics show that 23% of those sentenced to death were never educated. 76% of those on death row belong to backward castes and religious minorities, and 74.1% of these prisoners belonged to economically vulnerable families. It is therefore evident that in the passing of the death penalty sentence, there is an inherent class and community bias. Those sentenced are large- ly from poor families and minority communities - and are often the sole earning members of their families. If the theoretical arguments did not suffice, it is clear that on-ground and in practice, the death penalty ends up being biased, persecutive, and discriminatory - once again taking away from the ethos of Article 14.
Lastly, if retaliation and retribution are the aims of this punishment, it is once again violative of the equality that the constitution enshrines. Further, the justification given by the court about cer- tain acts being ‘too barbaric’ or ‘rocking the foundation of society.’ This consequentialist reason- ing has been dismissed by Justice Bhagwati in his minority dissent of the Judgement, claiming that there is no established scale for calculating what may be ‘too barbaric.’ He also contends that the nature or victim of the murder, ie, specific facts of the case, should not make a difference to the overall attitude towards the penalty - he argues that ‘murder is murder,’ - thus if restraint in granting the penalty can be exercised in one case, it can be done in all cases. The argument made by the judgement on this ground, thus conclusively violates Article 14 once again.
3.2 Article 21
The Bachan Singh judgement has a very cursory and convenient engagement with Article 21. The claim that the law has the legitimacy to deprive someone of their life and liberty, as made in the judgement, is not necessarily that simple. The contention comes, once again, from the principles propounded in the Maneka case.20 The procedure for depriving someone of their life or liberty (or both) must be reasonable, fair and just. However, as has been mentioned multiple times, the Supreme Court has not prescribed any procedure to begin with. The decision to take someone’s life or liberty is based on personal discretion - subject to biases and flaws in human nature. The lack of an established framework, structure or procedure is in itself proof of the fallacy in the judgement. Since there are no established guidelines for judges to follow, the procedure cannot be deemed reasonable, fair or just. This is a clear violation of Article 21.
A major portion of the judgement is dedicated to arguing that the death penalty is an effective de- terrent against future crime. This is an argument that is based entirely in theory, and has no stati- cal or empirical data evidence backing it. The judgement even admits that they cannot have an objective evaluation of this claim, and thus trust the assumptions made by ‘distinguished person- alities’ that argue for the same. However, Justice Bhagwati in his dissenting arguments studies done in the USA, that conclusively show a moratorium on death penalty to have no adverse im- pact on crime rates.21 Capital punishment therefore doesn’t seem to serve any constitutional end.
The only justification then remains a retributive philosophy, once again making it an arbitrary sentence thus violative of both Articles 14 as well as 21.
Another abolitionist argument stands strong here. There is no denying that there always exists a margin of error in a conviction, and an innocent could wrongly be sentenced to death, taking away her rights under Articles 14, 19 and 21 for no reason. With a Constitution so committed to protecting human rights and the dignity of the individual, even the possibility of an error should be enough to disallow the passing of the death sentence.
It is also essential to consider other factors that the death penalty entails (apart from the act of killing itself). The experience in prison can be a physically and psychologically harrowing one. 80% of prisoners on Death Row reported that they were being tortured in custody - including prohibition on basic liberties such as using the toilet, being served food, or given water. Other modes of torture include violent beating, breaking bones and teeth, electric shocks, and water- boarding.22 When in custody, most prisoners are made to live in solitary confinement. These are cramped spaces with little or no light and unacceptable standards of hygiene. These are also recipes for various mental health problems. All these factors considered together conclusively show that those in prison do not live a life even close to one of dignity as prescribed by Article 21. The State has no safeguard or justification for taking away the basic human rights of an indi- vidual - particularly in a country with a Constitution like India’s. (The judgement makes no men- tion of these conditions).
3.3 Miscellaneous Arguments
The judgement also makes certain moral arguments and assumptions that don’t have reasonable logical backing. For one, the Law Commission’s statement that India cannot risk the ‘experiment’ of abolition owing to the diversity of its people seems to be deeply fallacious. The claim is ab- surd, since the existence of diversity does not in any way correlate with the risk of rising homi- cide rates. Even if this were the case, it is unclear how retaining the death penalty serves as any kind of barrier to the same. Second, the assertion that the death penalty stands on a ‘totally differ- ent level’ has been cited as a reason to retain the death penalty, without any explanation behind the same. It does not logically follow that because capital punishment is qualitatively different, it is morally or practically superior. Another line of argument made by the judgement is that even in the international arena, there are a number of countries (similar to India in terms of economy or social diversity) that have either failed to abolish or revived the use of capital punishment. It is interesting, however, that the countries cited in this argument are Saudi Arabia, Israel and China - countries notorious for their authoritarian nature, and callous attitudes towards human rights.
In conclusion, judgement of the five-judge panel in Bachan Singh vs State of Punjab is fraught with flaws in reasoning, particularly with respect to Articles 14 and 21 of the Indian Constitution. While the establishment of the rarest of rare doctrine could be seen as a progressive move forty years ago, it could be argued that the doctrine itself is unconstitutional due to its arbitrary nature and reliance on personal discretion. India is also party to United Nations Covenant on Civil and Political Rights, as well as the Universal Declaration of Human Rights, both of which profess a commitment to the protection of individual life and liberty, paving the way for a world where barbaric punishments like the death penalty do not exist. This essay has proven that capital pun- ishment does not lend itself to the principles enshrined in the Indian Constitution, and must be reconsidered.
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