Capital sentencing is a punishment as stated in Section 53 of the Indian Penal Code. It is commonly referred to as the death penalty or capital punishment as well. While these three terms are often used interchangeably, there are differences in these three terms. Capital Punishment or the death penalty indicates just what it says – death as punishment for some offense.

It does not however mean that the execution will be carried out, for it can be converted to a lesser sentence of life imprisonment by the Courts. Capital sentencing is the punishment that has been awarded a touch of finality to it, that is, that person will be executed at the stipulated time. In India, the death penalty is a punishment for various offenses, such as aggravated murder, and even for offenses that do not result in death such as rape, treason, espionage, terrorism (even if it results in death too), kidnapping, military offenses, and drug trafficking.

Analysing Capital Punishment

The Bachan Singh Case – Guidelines to be followed while awarding Capital Punishment

The judicial evolution of this idea started in Bachan Singh v. State of Punjab ((1980) 2 SCC 684), where the Supreme Court provided guidelines that were to be followed with respect to all the Courts awarding capital sentencing as punishment for various offenses. This case is still considered to be the landmark decision with regard to imposing the death penalty, and must hence, be examined thoroughly to analyze the gaps and errors prevalent in sentencing. The issue in the case was whether the facts of the case could be considered to be the special reasons as stated in Section 354(3) of the Code of Criminal Procedure.

In order to answer this question, the Supreme Court stated that the death penalty must be invoked only in the “rarest of the rare” cases because life was the norm, and death was the exception. This idea of rarest of the rare cases was further amplified by the usage of the terms such as exceptional and grave circumstances, thereby trying to impress the seriousness of the offenses for which the death penalty must be awarded. It also made it clear that such sentencing would be based on a case-to-case basis. Another point to note in this case is the fact that it allowed for consideration of two sets of circumstances – the aggravating and the mitigating. Upon delving into these circumstances, it must be made explicitly clear that the aggravating situations outweighed the mitigating situations, and also that life imprisonment (the alternative to the death penalty) was out of the question. The possible interpretation accorded to the mitigating factors must be liberally examined, whereas there is no such idea of explaining as to the process of interpretation of the aggravating factors.

One of the major drawbacks of this judgment is that there is no explanation provided as to why such circumstances need to be considered in the first place along with the relationship between these two situations. The judgment has provided a host of factors to be considered for the mitigating factors, such as the social, biological, economical, and psychological understanding of the accused. By allowing for these factors to be considered individually on a case to case to basis, a lot of discretion has been given to the judges who can make incorrect or incomplete profiling of the accused and sentence him or her to the death penalty. In both Ediga Anamma v. State of AP ((1974) 4 SCC 443) and Santa Singh v. State of Punjab ((1976) 4 SCC 190), there is an attempt made to provide the punishment with all the reformative and the deterrent elements as required, so as to make it effective. But because of the changes brought in Bachan Singh, the idea of using the death penalty has become retributive in nature and hence been used more widely, despite the guidelines provided therein.

Another problem with the judgment was that the idea of providing the data of mitigating factors was laudable, it still left behind a lacuna as to who would be providing such details. The aggravating factors could be ascertained through the reports provided and the judgments of the lower courts, but there was no such source for that of the mitigating factors. Considering the fact that the individuals who have been awarded the death penalty fall in the vulnerable category of society, ascertaining such information is much harder too. In the case of Khushwinder Singh v. State of Punjab ((2019) 4 SCC 415), owing to the fact that no mitigating factors were provided before the Court, the death penalty was awarded. Such a gap must be addressed through an institutional framework. Moreover, the fact that there are no standards of proof established to prove at the time of sentencing also showcases a gap in the law.

The case has also failed to take into account the consequences of a deficient sentencing hearing, and the remedies that ought to be provided. In the 2014 case of Mohd Arif v. Supreme Court of India ((2014) 9 SCC 737), the court allowed for death sentence cases to be heard by three judges and also allowed for an oral hearing to be sought. This was however only allowed in the SC. There were 102 sentences of the death penalty declared by the trial courts in 2019 and only 6 were confirmed by the Supreme Court when they went on appeal. Considering the circumstances, such a double layer of protection could have been introduced at the trial courts to avoid deficient sentence hearings, which would have proved to be more beneficial to those on death row.

Probably the biggest question that was raised in the case and left unanswered was the question of how these aggravating and mitigating factors need to be analyzed. No methods of how these factors must be analyzed and what are the standards that must be kept in mind while analyzing the circumstances have made the Bachan Singh judgment weak in this context. A lack of understanding of this has allowed subsequent decisions to take it upon themselves to either ascertain all the facts appropriately or conveniently ignore the facts and come up with their judgment. Such actions cause the biggest problems particularly because of the consequence discussed here – a life gone will not come back. Another standard imposed was that of the absence of an explanation as to the determination of the “unreasonable foreclosure” of the other punishments, as a result of which capital punishment had to be resorted to.

The Machhi Singh Case – Test for awarding Capital Punishment

Another landmark decision of the Machhi Singh v. State of Punjab ((1983) 3 SCC 470) introduced the test of collective conscience which entailed an understanding of the motive of the crime, manner of commission, anti-social nature of the crime, the magnitude of the crime and the victim of the crime. Upon an understanding of the afore-mentioned five categories, the death penalty could be awarded if there was an outrage of “collective conscience” because of any of those factors. These factors were also substantiated with various examples provided. This case also provided a test with two questions that would help the judges to determine the punishment – one, whether a life sentence would be inadequate punishment, and two, despite maximum weightage ascribed to mitigating factors, whether there was no alternative to the death penalty.

This case shifted the perspective entirely from Bachan Singh to allow for the offense alone to be the source of determining whether or not the death penalty needed to be awarded. The standards provided in Machhi Singh made it much easier for the judges to follow as opposed to that of Bachan Singh, and hence the popularity of Machhi Singh soared.

While agreeing with Bachan Singh in terms of ascertainment of the aggravating and mitigating factors, the Machhi Singh case made a slight vocabulary deviation by using the word “balancing” instead of “weighing”. This changed the level of care and attention that the judges had to use, whose reflection is visible in the various decisions since then. The judges have preferred the idea of “balancing” because the judgment of Machhi Singh came later than that of Bachan Singh and also made their jobs easier. “Weighing” would have been made much easier had there been explicit guidelines provided that could fill the aforementioned gaps. The idea of weighing was brought back in the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra in 2009, but it was not picked up. Another vocabulary change that has had much impact on the subsequent decisions of the judiciary is that of changing “unquestionably foreclosed” to “inadequacy.” This shift has caused the standard to fall to a mere observation, which has also lowered the threshold for the punishment to be used, which was not the intention of Bachan Singh.

Machhi Singh also did not pay much attention to the mitigating factors, for it, all the while focused on the five categories that it provided. This was also another shift from Bachan Singh. The lack of attention given to the mitigating factors coupled with the attention given to the public to have a say in the decision has expanded the scope of the death penalty. In short, the Machhi Singh decision and the subsequent decisions have twisted the ideals stated in the Bachan Singh judgment. No doubt, the Bachan Singh judgment was not foolproof, but the decisions after it seem to have made matters worse for the accused, for the procedural standards are ridiculously low to send award the death penalty.

Conclusion

The Machhi Singh decision, because of the ease that it provides for the judges, along with the interpretation technique of using the most recent law/precedent has changed the entire perspective of the judiciary on capital punishment. But unfortunately, such a change is not for the betterment of the accused. Subsequent decisions on the issue of capital punishment must at least reinstate the Bachan Singh judgment, not in entirety, but with a view of providing solutions for the gaps and errors in that decision, so that the rights of the accused are protected.