Why SC wants law body's to examine the power of Prez

On April 26, 2013, Supreme Court referred a highly sensitive issue to the law commission. India's highest judicial forum is miffed by the fact that the executive wing of Indian democracy is bulldozing their well-thought out judgments awarding death sentences to accused guilty of serious crimes including rapes and murders of children. The SC wants the law commission to examine the power of the President and the governor under Article 72 in granting mercy without offering any reason. Rakesh Bhatnagar explains the importance of the issue.

The simmering helplessness prevailing among superior court judges over bulldozing of their well reasoned judgments awarding death sentence to accused guilty of heinous crimes, including rape and murder of children, by the executive without assigning any reason has been surfaced with the Supreme Court seeking the law commission’s aid in examining the power of President and governor to grant remission to death row convicts in such a manner.

Though a recent Supreme Court judgment commuting death sentence of a 51-year-old accused in Maharashtra to life long sentence disregarding the gravity of his offence of raping a mentally challenged 11-year-old girl and murdering her may not gel well with the will of Parliament and rarest of rare benchmark, it carves out conflicting controversial verdicts on application of Rarest of Rare Case test criteria.

At the same time it highlights the fact that there’s increasing abomination for the extreme punishment of death which is ‘revenge’, and raises brows at the executive wisdom under Article 72 in granting mercy without offering any reason whatsoever, in a way, overruling the unanimous pronouncements that had been passed after duly weighing mitigating and aggravating factors relating to a diabolic accused.

Significantly, the top court has admitted that courts award death sentence “since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges’’.

“The reasons for commuting the death sentence by the Executive are not in the public domain and therefore it is not possible to know what weighed with the Executive in commuting the death sentence of each convict,’’ a bench of Justices K S Radhakrishnan and Madan B Lokur observed.

“Was the reason for commutation that the crime and the criminal did not fall in the category of rarest of rare and if so what was the basis for coming to this conclusion when the competent Court has come to a different conclusion?,” wonders the top court, presumably for the first time.

It may be pointed out that between 2001 and 2011, death sentence had been awarded to as many as 1,455 persons and one person (Dhananjoy Chatterjee, a Kolkata housing colony’s guard, who raped a murdered a minor girl living in one of the apartment) was executed in 2004.

However, the National Crime Research Bureau says as many as 4,321 accused who were originally awarded the capital sentence were later grated reprieve. But this figure is a mismatch with the other data.

In the recent past too, only death convicts -- Ajmal Kasab of 2008 Mumbai killings case and Afzal Guru who masterminded the bloody attack on Parliament in 2004 -- have been executed.

But the top court’s concern is restricted to the sanctity of the judicial verdict in crucial cases and whether it could be overruled or made inoperative by the executive.

“It seems to me that though the courts (SC/HC) have been applying the rarest of rare principle, the Executive has taken into consideration some factors not known to the Courts for converting a death sentence to imprisonment for life,’’ judges expressed the concern.\

“It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided,’’ it added.

“The death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance,” the court said and sought the law commission’s attention to this glaring aberration in the dispensation of grave offences such which has however been certified as “rarest of rare” by the court.

While passing a slew of directions to media, non-governmental organisations and educational and social institutions to report any incidence of sexual violence against children and women failing which they would be liable to face criminal action, the court said determination  of death or life for a convict is a “judge centric’ determination.

What’s comparatively an effective yardstick is the “crime test”, “criminal test” and the R-R Test and not “balancing test”.

To award death sentence, the “crime test” has to be fully satisfied, that is 100 per cent and “criminal test” zero per cent, that there is no mitigating circumstance favouring the accused.

If there is any circumstance favouring an accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the “criminal test” may favour the accused to avoid the capital punishment.

Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favoring the accused, still we have to apply finally the R-R Test).

This test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crimes or not.

While applying that test, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities and such other victims.