Judge-Centric Sentencing: MU's Own Question

In one line

MU printed the proposition that a commutation which appears justified to one judge may not appear so to another, and the answer is that the Supreme Court has said the same thing three times in its own words.

In the wording a student can write in an exam: the objection that capital sentencing in India is judge-centric rather than principle-centric is made out on the Supreme Court's own material. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, held a line of its decisions per incuriam; Shankar Kisanrao Khade v. State of Maharashtra, decided 25 April 2013, found on a survey of comparable cases that death had been confirmed where the criminal test had never been addressed, and held that the rarest of rare test must be society centric and not judge centric; and Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India, (2014) 9 SCC 737, gave as its reason for requiring a review in open court that different judicially trained minds can apply different aggravating and mitigating circumstances and arrive at different conclusions.

The question MU sets

Comment: "Commutation of death sentences to that life imprisonment appears to one judge justified but may not be necessarily so with the other judges". What are merits and demerits of death penalty?

Two limbs. The proposition, which this chapter answers, and the merits and demerits, which are in [The Merits Claimed for the Death Penalty] and [The Demerits of the Death Penalty].

The commonest mistake is to treat the quotation as scene-setting and to write only about merits and demerits. It is the first half of the question and it carries marks.

The three proofs

1. Bariyar: a line of decisions was wrong

Bariyar held that Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, which had said that it is the nature and gravity of the crime and not the criminal that is germane to sentencing, was rendered per incuriam, because Bachan Singh v. State of Punjab, (1980) 2 SCC 684, had held in terms that a court should not confine its consideration principally or merely to the circumstances connected with the crime but must give due consideration to the circumstances of the criminal. It noted that at least six decisions had followed Ravji and had awarded death in the preceding nine years.

Two Benches of the same Court, applying the same Constitution Bench decision, took opposite views of what it required. That is the proposition proved.

2. Khade: a survey of comparable cases

Khade examined the decisions in which death had been awarded for the rape and murder of minor girls and those in which it had been commuted on comparable facts, and recorded case by case whether the criminal test had been addressed. Its finding was that in several of the cases where death had been confirmed only the crime test had been satisfied and the criminal test had not even been addressed.