Daksh Kadian

Relying on ‘shocking of the collective conscience’ principle as a ground to justify the award of capital punishment is inconsistent with the jurisprudence on criminal sentencing and a fraud on the well-settled rules of capital sentencing in India.

On 13 December, 2001, the Parliament Complex in New Delhi, India was stormed by five heavily-armed terrorists. Mohd. Afzal was found guilty for perpetrating the attack and the Supreme Court while confirming his death sentence noted, “the incident had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.” [State (N.C.T. of Delhi) v. Navjot Sandhu] The public outcry and discontentment so generated were the major factors in Afzal being sent to the gallows. Rationalisation of a capital sentence so as to cater to the retributive instincts of the community has been a discernible and disturbing trend in the majority of cases at the apex court in India in the last few years.

Factoring in of public opinion in capital sentencing suffers from inherent flaws. Judges in the courts are not trained to gauge public perception and deliver judgments. Rather, as observed by Justice Powell in Furman v. Georgia, assessing of the popular opinion is a ‘legislative function’ and should be carried out by the representatives of people, as against the judiciary. The popular sentiments may be reflected through an amendment to the law but ought not to be the core of judicial inquiry.

Andrew Ashworth in Sentencing and Criminal Justice argues that the members of the public, in general, are ignorant of the court sentencing practices. They form opinions on extremely superficial knowledge and simplistic understanding. A survey by Hough, Jacob, and Millie (2003), further, shows that the media and the general public tends to overestimate the proportion of the recorded crime and underestimate the stringency of the sentence because it is uninformed. In other words, a large amount of information asymmetry and knowledge gap exists between the judges and the public. Now, the increase in the quantum of the sentence by the court to quell criticism, which is based on a misunderstanding, by a vociferous press and the public, is no solution. It is just one error leading to another and a resultant unending cycle of miscarriage of justice. Such a practice denies the accused of an opportunity to a fair trial and prejudices due process of law that everyone is entitled to as a matter of right.

In India, under Section 354(3) of the Code of Criminal Procedure, 1973, when the court has an option to award either life imprisonment or death penalty, the judge has to record ‘special reasons’ for choosing the latter. Bachan Singh v. State of Punjab, a landmark judgment by the constitutional bench of the Supreme Court, held that death penalty can only be awarded in exceptional and extreme circumstances, and as a rule, the accused must be sentenced to life imprisonment under Section 354(3). The case also propounded the rarest of the rare doctrine wherein aggravating and mitigating circumstances relating to the crime and the criminal are to be appraised and weighed against each other. Only when all alternative options of securing justice and reformation have been unquestionably foreclosed that a person be sent to the gallows. Public opinion in no manner fits into this matrix of rarest of rare. It is merely a subjective circumstance relating to neither the crime nor the criminal. It is just a perception of people, though large in numbers, who are completely isolated from the offence. Their perception has no bearing on the reformative capacity of the accused.  Therefore, the perception of the public is ‘extraneous to conviction in capital sentencing’ according to the mandate of Bachan Singh.

Santosh Kumar v. State of Maharashtra emphasised on the ratio of Bachan Singh and categorically laid down that public opinion does not have ‘any role’ to play in capital sentencing process. Especially the cases which involved ‘overwhelming public opinion’ favouring death penalty were the ‘acid test’ of constitutional propriety of capital sentencing process.

In such jurisprudential backdrop and case law by the Apex Court, the continued usage of public opinion and response as a ground in capital sentencing is baffling. Consistent and regular deviance by the Supreme Court from its own authoritative precedent is a fraud on the Constitution and an act of institutional impropriety. An even more important question is should such a flimsy ground be allowed to exist, even when almost 142 countries in the world have already abolished death penalty? In wake of this noticeable global trend towards abolition, the judges ought to exercise restraint in awarding death sentence, impending legislative overhaul of the capital sentencing process. Failure to do so would result in the failure of the justice delivery system and it would be too late to rectify our mistakes.

Daksh is a IIIrd Year B.A., L.LB (Hons.) student at the National Law School of India University, Bengaluru and has a stellar research base in Criminal and Anti-Terror Laws.

Image Source: Asian Correspondent