– Utkarsh Srivastava 1

– Prateek Dhingra2

Justice P.N. Bhagwati held that the death sentence was

Discriminatory and “has a certain class complexion or

Class bias in such as it I largely the poor and the downtrodden

Who is the victim of this extreme penalty.”


The Supreme Court’s admission of error in sentencing 13 convicts to death strengthens the case for abolition of thedeath penalty.Agroup of 14 former judges ofeminence has, in an appealto the president, sought his intervention to commute the death penalty awarded to the convicts, using his powers under Article 723 of the constitution. Some of the cases like- Bachan Singh vs State of Punjab4, Santosh

Kumar Bariyar vs State of Maharashtra.5 We admire Gandhi as father of the nation and many othergreat persons likeAmbedkar, Nehru and Tagore, these are greatnames in Indian history,but today mostly they are remembered by garlanding their portraits. Their principles are hardly followed. Just names will not make any difference. If we are to take our democracy to a more mature level, we must heed the principles which were laid down by thesegreat souls of India. Especially when we callGandhi the father of the nation, the death penalty is not compatible with his principles.


WITHIN a few weeks of Pranab Mukherjee assuming office as the 13th President ofIndia on 25 July, 14 former judges of eminence signed an unusualappeal addressed to the president. The appeal, in the form of separate letters, sought his intervention to commute the death sentences of 13 convicts, currently lodged in various jails across the country, using his powers underArticle 72 of the constitution.

The President would refer the appealto the ministry of Home Affairs for its due consideration and advice, but what was so special about theeal forcommunication ???

The unusualappeal does not stem from theirprincipalopposition to the death penalty,though someof them may believein its abolition personally. They have appealed to the President because these 13 convicts were erroneously sentenced to death according to the Supreme Court’s own admission and are currently facing the threat of imminent execution. The Supreme Court, while deciding three recent cases, held that seven ofits judgments awarding thedeath sentence were rendered per incuriam (meaning out of error or ignorance) and contrary to the binding dictum of “rarest or rare” category propounded in the Constitution Bench judgment in Bachan Singh vs State of Punjab. The three recent cases were Santosh Kumar Bariyar vs State of Maharashtra, DilipTiwari vs State of Maharashtra6 and Rajesh Kumar vs State7.

The former judges also informed the President the appeal that two prisoners who had been wrongly sentenced to death, Rajiv Rao and Suraj Ram (both from Rajasthan), had been executed on May 4, 1996, and April 7,1997, respectively,pursuant to the flawed judgments. These, they said, constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India. The Supreme Court’s admission of error had come too late for them, they wrote.

They hold the President that the concerns expressed in the appeal had nothing to do with the larger debate over the desirability of retaining the death penalty. “Rather, they pertain to the administration of the death penalty in conscientious, fair and just manner. Executions of person wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in thefuture” the appealexplained.

The judges also annexed an explanatory note to their appeal so as to convince the President that the sentences of these 13 convicts indeed deserved to be commuted. In this, they cited the landmark Bachan Singh vs state of Punjab, which laid down the “rarest of rare” doctrine, and said it emphasised giving sufficient weight to the mitigating circumstances pertaining to the criminal along with the aggravating circumstances relating to crime.

They then explained how this Bachan Singh dictum laid down by a Constitution Bench had been reserved in a later case.

In Rajiv@ Ram Chandra vs state of Rajasthan8, a case which was decided by a bench of the two judges, the supreme courtheld that “it is the natureand gravity of thecrime butnot thecriminalwhich are germane for consideration of appropriate punishment in a criminal trial”. This aspect of thedecision in the Rajiv case directly conflicts with the Bachan Singh’s ruling. Thereafter, the Supreme Court repeatedly invoked the Rajiv precedent in death penalty cases so as to limit the focus only to the circumstances pertaining to the crime and excludethe circumstances pertainingto the criminaluntilanother two-Bench judge ofthe Supreme Court discovered this folly in Bariyar, in 2009.

In Bariyar, the Bench held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminalshould be given fullweight. In this case,the appellant had killed his victim, a young boy, whom he had kidnapped forransom. Yet the bench commuted his death sentence, imposed by the Bombay High Court, to rigorous imprisonment for life as, in its view, the mitigating factors in the case were sufficient to take it out of the “rarest of rare” category. The bench believed that though the though the socio-economic backwardness of the convict might not dilute guilt it was a mitigating circumstance and held there was a potential for reform. Relying on Bachan Singh, the court in Bariyar held that the prosecution must prove, as a precondition for awarding the death penalty, that reform and rehabilitation of the criminalwould not be possible.

The key issue here is Section 354(3) of the CrPc9. This provision states that when the conviction is for an offence punishable with death or, in the alternative, with imprisonmentfor life or imprisonment for the term of year. The judgement shall state the reason for the sentence awarded, and in the case of the sentence of death the special reason for such sentence.


Those 13 convicts who were awarded with the death penalty are as follows:

DayanidhiBisoi10 ; Mohan Anna Chavan11 ; Shivaji@ Dadya Shankar Alhat vs State of Maharashtra12; Bantu vs state of U.P. 13; State of U.P. vs Sattan @ Satyendra and ors.14; Upendra (Same as above); AnkushMarutiShinde;AmbabasLaxmanShinde; BapuAppaShinde; RajuMhasuShinde; RajyaAppaShinde; Surya @ ShureshShinde(7 to 12: AnkushMarutiShinde and ors. Vs state of Maharshtra15; Saibanna vs state of Karnataka16 .


In Bachan Singh,the Supreme Court explained what thephrase “special reasons” meant in this provision. It said: “The expression ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particularcase relating to the crime as well as the criminal”. In paragraph 163 of the judgement, Bachan Singh further noted: “….in fixing the degree of punishment or making the choice of sentence for various offences, includingone under Section 302 of the Penal Code, the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.”

In Bariyar, the SupremeCourt got an opportunity to explain this further: “The rarest ofthe rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the Court, in case it selects death penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Having understood the Bachan Singh judgement clearly, the Bariyar Bench had no compunction in exposingthe flaws in theRavjijudgement. The Bench said in paragraph 63: “we are not oblivious that Ravji case has been followed in at least six decisions of this court 17 in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam.”

The bench observed thatthe Supreme Court had not brought on record and considered any of the circumstances relating to the seven convicts in these six cases duringthe sentencingdeliberations. Despitethe binding precedent of Bachan Singh, Ravji’s decision and the decisions in the aforementioned six cases have narrowed the sentencing considerations to the circumstances relating to the crime alone, as noted in Bariyar.


Justice P.B. Sawant; Justice A.P. Shah; Justice Bilal Nazki; Justice P.K. Misra; Justice Hosbet Suresh; Justice Panachand Jain; Justice PrabhaSridevan; JusticeK.P. Sivasubramaniam;Justice P.C.Jain; Justice S.N. Bhargava; Justice B.G. Kolse-Patil; Justice RanvirSahaiVerma; Justice B.A. Khan; Justice B.H. Marlapalle.


In addition to the six cases which Bariyar faulted for having followed Ravji’s wrong precedent, it identified another case where the commutation of the death sentence is justified . The case is Saibanna vs State of Karnataka 2005.Saibanna was life convicts. On Parole, he killed his wife and daughter .The S.C. sentenced him to the death sentence .

However, The S.C had in Mithu vs State of Punjab (1983) already struck down the Sec 303 of I.P.C. which provide for mandatory death punishment for offenders serving life sentence . The reason is that if the death sentence is mandatory, then it is meaningless to hear the convict born question of sentence of death. The ratio decidendi of Bachan Singh is that the death sentence is constitutionalif it is prescribed as an alternatives forthe offenceof murder and ifthe normalsentence prescribe law for murderis imprisonment for life .In Bachan Singh the court also interpreted that death penalty is given in rare of rarest cases if there is no alternative provided.

Of 13 convicts who have been identified in the judges’ appeal, Bantu’s death sentence was commuted by the Pratibha Patilin June this year. Another convict,Ankush MarutiShinde, has been declared a juvenile and has been removed from death row.Dayanidhi Bisio’s death sentence was commuted to lifeimprisonment by the governor of Odishain 2003. President Pratibha Patil commuted the death sentences of Sattan @ Satyendra and Upendra in July 2011.

Thus they are now only eight convicts whose death sentences ought to be commuted in line with the Supreme Court’s judgement in Bariyar.

The mercy petitions ofthe remaining seven convicts have not yet reached the president. Most of them have got their mercy petitions rejected by the Governors of the states where they are lodged in jails awaiting execution. When Pratibha Patilcompleted her term on July 24, she left a fascinating record and a legacy thatnone of her successors can ignore easily. She began with a backlog of 23 undecided mercy petitions from herimmediate predecessors and received nine fresh petitions, involving 40 convicts.

Of these, she accepted 18 petitions, rejected three and passed on 11 undecided petitions to her successor, Pranab Mukherjee. One of the 35 convicts whose sentences she commuted on June 2 this year, Bandu Baburao Tidake had died on October 18, 2007, while waiting for her decision, but the report about his death apparently did not reach the Home Ministry when it recommended his communication. It is a moot question whether Tidake would have lived longer had the President commuted his sentence before his death.


Many countries that retain the death penalty do not actually execute person regularly. In 2011, only 21 countries executed it and the number has not exceeded 25 in past five years . India is one of the country that retain the death penalty but rarely executes people, there had been no execution for nearly eight years until 2012. Dhananjoy Chatterjee, hanged in August 2004, is the only person to have been executed in India for nearly 15 years.

Thedeath penalty in Indiahas littlein relation to deterring or combating violent crime.As per the Home Ministry’s own statistics, there has been no visible increase in the levels of ordinary crime and violence despite the reduction ofexecutions in India. Experiencefrom theother countries also suggests that abolition does not lead to any increase in violent crimes. The death penalty debate in India has now got mired in “terrorism”.

At the General Assembly in 2010, five countries, including India’s neighbours Bhutan and the Maldives,changed theirprevious opposition and decided to support the call for a moratorium on the use of the death penalty. In South Asia, Nepal and Bhutan havealready abolished the death penalty, while Sri Lanka and the Maldives is abolitionist in practice.18


It can be concluded that Death penalty should be given in rare and rarest cases because this is against humanity All the accused of Delhi gang rape case must getdeath penalty or capitalpunishment. But as an Indian we have been always taught . With the motive respect human rights; maintain dignity;respect rule of law, as wellas our constitution . India is facingsevere terrorist activities and blasts thereof. The Supreme Court said death penalty should be given in rare and rarest cases. India is one of the countries that retain the death penalty but rarely execute, there had been no execution for nearly 8 years. Dhananjoy, hanged in August 2004 was the only person to have been executed in India in nearly 15 years until 2012. On the other hand India stands with Afghanistan, Pakistan and Bangladesh in holdinginto death penalty to punish the criminals and warn the terrorists Ajmal Kasab19 and Afzal Guru 20 were hanged for committingheinous crimeagainst humanity.


1 INDIA TODAY -Magazine

2 FRONT LINE- Magazine from 21st sept article

3 Frontline Magazine from www.frontlineonnet.com/fl2917/stories/ 20120907291701800.htm