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The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath. Kindly mark copies of the emails to: vijayhiremath@gmail.com reena.mary.george@univie.ac.at

Wednesday, May 27, 2009

Landmark Supreme Court case

The Supreme Court case of Santosh Bariyar v State of Maharashtra was decided on 13 May 2009 in a judgment delivered by Justice S.B Sinha. The case is a landmark decision by the Supreme Court which places strict limitations on the circumstances in which a death sentence may be handed down.

The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.

Some excerpts of the Santosh Bariyar judgment are set out below:

The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.

The Court observed that:

“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.

One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:

Bachan Singh laid down a fundamental threshold in the following terms:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Court went on to observe that:

“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:

that the case belongs to the rarest of rare category;

and the alternative option of life imprisonment will just not suffice in the facts of the case”

The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.

The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:

“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.

The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp

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