CHAPTER 3: ALTERNATIVE SENTENCING TO DEATH

PENALTY

3.1 ALTERNATIVE SENTENCING TO DEATH PENALTY: AN

INTRODUCTION

The term “Alternative Sentencing” implies the “middle path” doctrine devised by the apex court
in death sentence cases wherein the court has usurp onto itself, without parliamentary sanction,
the vast range of sentencing discretion between life imprisonment and death with the avowed
objective of awarding “appropriate” sentence in those multifarious number of death cases
wherein awarding life imprisonment, which in all probability will last only for fourteen years,
appears to be grossly inadequate and imposing death, on the other hand, would amount to an
excessive punishment. Locked up between the only two options i.e. either life imprisonment (in
practice fourteen years) or death in death cases, the court has widened its judicial sentencing
discretion and devised “Alternative Sentencing”. The death cases which generally reaches to the
Supreme Court is interwoven into so many complex threads, containing a number of
permutations and combinations further compounded with a complex mix of aggravating and
mitigating circumstances wherein the straight jacket sentencing in the form of either only life
imprisonment (in practice 14 years) or death would be highly unjust and would reflect poorly of
an existing system of sentencing in India. To fill up the existing sentencing gaps in death cases in
India, where the law only provides for either life imprisonment (in practice 14 years) or death
under Section 302 of IPC, the Supreme Court of India devised “Alternative Sentencing”. The
alternative sentencing to death penalty has also been devised by the Supreme Court in response
to a number of current developments in death penalty jurisprudence since the landmark judgment
of the Supreme Court in Bachan Singh case in the year 1980 in which the constitutionality of
death sentence was challenged but upheld. Time has changed since 1980. The world is
witnessing a vigorous global movement towards abolition of death penalty. In response, majority
of nations have abolished death penalty. 1 And some have put moratorium on death sentence

1
Till 2007, 92 nations have abolished death penalty legally. Please refer to the Book “The Death Penalty a
Worldwide Perspective” by Roger Hood and Carolyn Hoyle (Oxford University Press; Fourth Edition); Please refer
to Page 14 of the Book. As per the current data available, 140 countries worldwide are abolitionist in law or practice
(Source: https://www.amnesty.org/en/latest/news/2016/04/death-penalty-2015-facts-and-figures/ ).

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instead of abolishing it permanently from the statute book which is hailed by the abolitionists as
one step short of abolition. 2 The death sentence is considered to be a cruel and unjust punishment
under many jurisdictions. 3 Human Rights of the accused have become sacrosanct and the right
not to be hanged has become an inevitable part of the right of the accused in many jurisdictions. 4
Further fuelling the abolition drive, the deterrent effect of death sentence has been seriously
questioned all over the world by academicians and researchers.5 No study till date has been able
to prove conclusively or with sufficient clarity the deterrent effect of death punishment.
However, no study has proved otherwise also.6 Then the golden phrase coined by the Supreme
Court in Bachan Singh case that death sentence is to be imposed only in exceptional cases which
falls in “Rarest of Rare case” is beset with its own problems. The test which was evolved as an
objective test has, in course of time, become a subjective test now depending upon the personal
predilection of the judges constituting the Bench. 7There is no consistency in the application of
the test in the last thirty years as I have pointed out in my second chapter. Further, in Bachan
Singh case, the court did not elaborate as to what category of cases will fall under “Rarest of

2
The recent United Nations Resolution (A/RES/71/187) calling for Moratorium on Death Penalty was adopted with
115 votes in favour of it. Please refer to Article titled “India opposes UN resolution for moratorium on death
penalty”; Source: https://timesofindia.indiatimes.com/india/India-opposes-UN-resolution-for-moratorium-on-death-
penalty/articleshow/55512844.cms (19/11/2016); Date of access: 27/02/2018. The adoption of this resolution
supports the global trend towards the abolition of death penalty.
3
The death penalty has been completely abolished in all European countries except for Belarus and Russia. The
absolute ban on the death penalty is enshrined in both the Charter of Fundamental Rights of the European
Union (EU) and the European Convention on Human Rights of the Council of Europe. The European Convention on
Human Rights (Protocol No. 13) bans use of the death penalty at all times, even during war. And also, if we look at
the history, Cesare Beccaria, long back in the eighteenth century, called capital punishment as both inhumane and
ineffective in his famous book called On Crimes and Punishments published in the year 1764. His line of argument
was that it was counterproductive if the purpose of law was to impart a moral conception of the duties of citizens to
each other because if the state was to resort to killing in order to enforce its will, it would legitimize the very
behaviour which the law sought to repress. Here, it would be pertinent to discuss the various grounds of attack on
capital punishment. According to Tomas A Long some of the grounds are; no concrete proof regarding deterrent
effect of capital punishment, irrevocable nature of death penalty (Human Fallibility Principle) and unjust distribution
among poor and underprivileged. Long said that out of approximately 650 people on death row in United States of
America, almost most of them are poor, black or ignorant. Long says that this is to show that either the institution of
capital punishment is inherently unjust or unfair or that in any society which contains the deep social divisions, the
actual imposition of death penalty will be discriminatory. For a detailed discussion on this aspect, see Article titled
“Capital Punishment-"Cruel and Unusual"?” by Thomas A. Long (Source: Ethics, Vol. 83, No. 3 (Apr., 1973), pp.
214-223 Published by The University of Chicago Press); (Page 214 and 215 of the Journal).
4
It is true for nations which have abolished death penalty permanently.
5
For detailed discussion on this aspect, see my first chapter on General Theories of Punishment under the heading
Deterrence and also sub-heading Deterrence and Death Penalty. For detail, see 262nd Report of the Law Commission
of India on Death Penalty (http://lawcommissionofindia.nic.in/reports/Report262.pdf ).
6
For a detailed discussion on this aspect, please refer to my first chapter on General Theories of Punishment under
sub-heading Deterrence.
7
For a detailed discussion, please refer to my second chapter.

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Rare case” keeping it wide open in the name of judicial discretion. Although Machchi Singh case
led to categorization of rarest of rare case, but still the issue regarding the content and
categorization of the cases under “Rarest of Rare case” remain perplexed till date. Awed by all
these developments, the devising of alternative sentencing act as a judicial in-built safeguard,
protecting it from the human rights criticism of being blood thirsty in those cases where the court
has imposed death on those principles which subsequently turned out to be based on wrong
application of Rarest of Rare case or ignorance of mitigating circumstances or over emphasis on
aggravating circumstances. One of the consequences of devising the alternative is that court has
raised the bar for Rarest of Rare case and has made it Very rare of Rare case reserving the
punishment of death sentence for very exceptional cases.

The alternative sentencing received the major boost with the judgment of the Supreme Court in
Swamy Shraddananda case.8A milestone in alternative punishment to death penalty in Indian
sentencing jurisprudence was reached in this decision of the Supreme Court. However, even
before Swamy Shraddananda case, it appears that the court has resorted to alternative sentencing
to death in some of the cases. 9 However, in Swamy Shraddananda case, the court underwent
extensive examination of the issue and expressly laid the foundation for alternative sentencing to
death penalty. The Court said that if the court’s option is confined to only two punishments for
the offence of murder, the court may be tempted to give death penalty to the accused. The three
Judge Bench in this case observed that no two cases are identical. The Court quoted Jagmohan
Singh case 10 where it was said, “No two cases are exactly identical. There are countless
permutations and combinations which are beyond the anticipatory capacity of the human
calculus. The Court further observed that standardization of the sentencing process tends to
sacrifice justice at the altar of blind uniformity.”11The court then proceeded on to say that there
may be a case in which the death penalty has been awarded by the trial court and confirmed by
the High Court and when it comes to the Supreme Court by way of appeal, the court may find
that the case falls short of rarest of rare category and may feel somewhat reluctant in endorsing

8
Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka A.I.R 2008 S.C 3040 (India).
9
See the Case of Shri Bhagwan v. State of Rajasthan (2001 SCC 296)), Prakash Dhawal Khairnar v. State of
Maharashtra (2002 S.C.C. 35 (India)), Ram Anup Singh and Ors. v. State of Bihar (2002 S.C.C. 686 (India). In all
these case, the Court directed that accused shall not be released from prison until he serves 20 years of
imprisonment.
10
Jagmohan Singh vs. The State of U.P, A.I.R 1973 S.C 947 (India).
11
Para 26 of Swamy Shraddananda case.

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the death penalty. But, at the same time, having regard to the nature of the crime, the court may
strongly feel that a sentence of life imprisonment subject to remission that normally works out
for a term of 14 years would be grossly disproportionate and inadequate. What then the court
should do, the court asked. The court then justified alternative sentencing and observed that if the
court’s option is limited to only two punishments, one a sentence of imprisonment for life which,
for all intents and purposes, would not be more than 14 years and the other death, the court may
feel tempted and finds itself nudged into indorsing the death penalty. Such a course would indeed
be disastrous. A far more just, reasonable and proper course would be to expand the options and
to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between
14 years imprisonment and death, the court said. The court said that it would take recourse to the
expanded option primarily because on the facts of the case, the sentence of 14 years
imprisonment would amount to no punishment at all. On the facts of the case, the court awarded
the sentence of imprisonment for life to the appellant but with the direction that convict would
not be released from the prison for the rest of his life. Unhappy with the present situation in
which remission power is exercised by the executive, the court said that the unsound way in
which remission is actually allowed in cases of life imprisonment makes out a very strong case to
make a special category for the very few cases where the death penalty might be substituted by
the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years
and to put that category beyond the application of remission. The court also took note of the fact
that remission is allowed to life convicts in the most mechanical manner without any sociological
or psychiatric appraisal of the convict and without any proper assessment as to the effect of the
early release of a particular convict on the society. The court then went on to say that this
approach i.e. formalization of special category of sentence shall have the great advantage of
having the death penalty on the statute book but to actually use it as little as possible. This would
be reassertion of the Constitution Bench decision in Bachan Singh case as well as in accord with
modern penological trend (trend towards abolition of death penalty in many jurisdiction), the
court said. This case, setting the strong precedent for alternative punishments to death penalty,
was followed in number of other cases i.e. Haru Ghosh v. State of WB12 , State of UP vs. Sanjay
Kumar13, Sebastian vs. State of Kerala14, Gurvail Singh vs. State of Punjab15 and others where

12
(2009) S.C.C. 551(India).
13
(2012) 8 S.C.C 537(India).

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full life or sentence of determinate number of years has been awarded as opposed to death
penalty.

However, prior to Swamy Shraddananda case, the Supreme Court in Dalbir Singh vs. State of
Punjab 16 had considered the question of length of incarceration in those cases where death
penalty is commuted into life imprisonment and made a very crucial observation which can be
said to be have been picked up by the Supreme Court later in Swamy Shraddananda case. The
Court in Dalbir Singh case said in Para 14 of the Judgment, “…. the life imprisonment which in
practice amounts to incarceration for a period between 10 and 14 years may, at the option of the
convicting court, be subject to the condition that the sentence of imprisonment shall last as long
as life lasts, where there are exceptional indications of murderous recidivism and the community
cannot run the risk of the convict being at large. This takes care of judicial apprehension that
unless physically liquidated the culprit may at some remote time repeat murder.” The cases
which have been decided prior to Swamy Shraddananda and where fixed term life imprisonment
has been awarded can be said to have taken inspiration from Dalbir Singh case. Dalbir Singh
case was a judgment delivered by three Judge Bench with Justice A.P. Sen writing dissenting
judgment as far as sentencing aspect was concerned. This judgment just came before the
celebrated Constitution Bench judgment of the Supreme Court in Bachan Singh case. However,
Swamy Shraddananda case formally recognized the principle laid down in Dalbir Singh case.
The number of cases which have been decided post Swamy Shraddananda case wherein fixed
term life imprisonment or life imprisonment till the end of life have been awarded has taken
inspiration from Swamy Shraddananda case wherein the court has categorically laid down the
principle of alternative sentencing to death penalty justifying its necessity in the present
circumstances. However, the core issue which has emerged in this new sentencing jurisprudence
is that does this alternative sentencing to death penalty amounts to judicial legislation as this
alternative sentencing and its various forms is not there in the statute book and appears to have
been judicially devised. Is that permissible under our present constitutional scheme? Another
issue is inconsistency in the application of alternative sentencing to death penalty (reasonable
classification of cases where it can be applied and cases where it cannot be applied) which can be

14
(2010) 1 S.C.C. 58 (India).
15
(2013) 2 S.C.C. 713 (India).
16
A.I.R 1979 S.C. 1384 (India).

91
said to be constitutionally hit by Articles 14 and 21 of the Constitution of India. I will touch upon
all these issues in my thesis in this chapter as well as in chapter four.

The Delhi High Court in its judgment of Vikas Yadav and Ors. v. State of U.P. and Ors17 ,
reiterating the view of the Supreme Court in Swamy Shraddananda case justified alternative
sentencing on the following grounds:

 Penological necessity to award the appropriate sentence as it is the solemn duty of the
court to award appropriate sentence on the given facts and circumstance of the case.
 Sentence between the range of maximum (death) and minimum (Life Imprisonment)18 is
constitutionally permissible and there is nothing unconstitutional about it.
 If alternative sentencing is not resorted to, it will bring rigidity in the sentencing of death
cases i.e. the court will be compelled to award either “Death” or “Life Imprisonment” and
nothing else. The Court cannot be compelled to adopt such a rigid and straight jacket
formula in the area of criminal sentencing and that too where complex interplay of
aggravating and mitigating circumstances are at work.
 Even if the fixed term sentencing curtails the power of remission under Section 433-A of
the Criminal Procedure Code, 1973, that should be permissible in the interest of
penological necessity. 19
 From the point of Ray of Hope Principle, the victim rights should have primacy over the
rights of the accused. It cannot be a one sided affair in favour of the accused.
 Section 433-A Code of Criminal Procedure, 1973 prescribes only the minimum and
therefore, there is no restriction to fix it at any period beyond 14 years and up to the end
of one's lifespan.20
 Unsound manner in which the remission is being exercised by the executive in case of
life convict is a matter of serious concern for the court.21
 The expanded option will take into account the due regard to deterrent punishment.

17
MANU/DE/0294/2015 (India).
18
Imprisonment till 14 years assuming that remission power will be exercised after 14 years under Section 433-A of
the Criminal Procedure Code, 1973.
19
See Para 40 of the Vikas Yadav Judgment (Delhi High Court) on this aspect.
20
See Para 28 of the Vikas Yadav Judgment. The court has affirmed the view taken in V Sriharan case.
21
The court affirming the view taken in Swamy Shraddananda case and also in V Sriharan case.

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  Like as said in Swamy Shraddananda, if the expanding option is available, the court will
not be pushed towards imposing death penalty.
 The Court also said that such alternative sentencing does not breach section 31 of the
Criminal Procedure Code and is constitutionally permissible. The Court said, “if life
imprisonment is not for the remainder of the person's life, because of intervention of the
event of the exercise of the discretion under Sections 432, 433 and 433A of the CrPC
resulting in remission or the commutation of the life sentence , the sentencing court can
anticipate such an eventuality and direct a mandatory minimum sentence of
imprisonment before the appellant's case for remission or commutation in exercise of the
statutory power, could be considered by the authorities of the State. There is nothing in
Section 31 which prohibits the court from doing so.”22

When the matter went in appeal to Supreme Court against the Delhi High Court in Vikas Yadav
Judgment, challenging among other things, the constitutionality of alternate sentencing to death
penalty, the Supreme Court uphold the constitutionality of alternate sentencing. 23The Supreme
Court in the present case endorsed the view taken in V.Sriharan case and held that sentencing of
25 and 20 years respectively imposed on the convicts does not suffer from the vice of
unconstitutionality and does not amount to judicial legislation. At Para 74A of the Judgment, the
Supreme Court held that award of fixed term sentencing (alternative sentencing) cannot be found
fault with. 24 The Supreme Court in Para 40 of the Judgment made it categorically clear that
alternative sentencing is not a judicial innovation or creation without sanction of law and there is
no point in differing with the majority view in Constitution Bench judgment in V Sriharan
case. 25 Justifying Alternative Sentencing, the Court said, “As far as the statutory power under
Section 433-A is concerned, it can be curtailed when the Court is of the considered opinion that

22
See Para 207 of the Vikas Yadav Judgment.
23
A.I.R 2016 S.C 4614 (India). This Judgment is post V. Sriharan Judgment, a Constitution Bench judgment in
which the court by the ratio of 3:2 upheld the constitutionality of alternate sentencing. For detail, see my fourth
chapter titled: Critical Analysis of Alternate Sentencing.
24
The Court referred to a passage from Guru Basavaraj v. State of Karnataka (2013) 7 S.C.C. 545 (India) to the
effect that “Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in
the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally
brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence…”
25
Justifying Alternative sentencing or the fixed term sentencing, the Supreme Court in Vikas Yadav case said that in
a case where the court does not intend to impose a death sentence because of certain factors, it may impose fixed
term sentence keeping in view the public concept with regard to deterrent punishment. It really adopts the view of
"expanded option", lesser than the maximum and within the expanded option of the minimum, for grant of remission
does not come in after expiry of 14 years. It strikes a balance regard being had to the gravity of the offence.

93
the fact situation deserves a sentence of incarceration which be for a fixed term so that power of
remission is not exercised. There are many authorities to support that there is imposition of fixed
term sentence to curtail the power of remission and scuttle the application for consideration of
remission by the convict. It is because in a particular fact situation, it becomes a penological
necessity which is permissible within the concept of maximum and the minimum. There is no
dispute over the maximum, that is, death sentence. However, as far as minimum is concerned the
submission of the learned Counsel for the Appellants is courts can say "imprisonment for life"
and nothing else. It cannot be kept in such a strait-jacket formula. The court, as in the case at
hand, when dealing with an appeal for enhancement of sentence from imprisonment of life to
death, can definitely say that the convict shall suffer actual incarceration for a specific period. It
is within the domain of judiciary and such an interpretation is permissible. Be it noted, the Court
cannot grant a lesser punishment than the minimum but can impose a punishment which is lesser
than the maximum. It is within the domain of sentencing and constitutionally permissible.”26
Thus, the Court endorsed Swamy Shraddananda approach on devising of alternative sentencing
to death and its constitutionality in V Sriharan case.

Regarding the Ray of Hope Principle 27 on the basis of which the alternative sentencing especially
the life imprisonment till the end of life without the right to remission is being challenged on
human rights ground, the Supreme Court in Vikas Yadav case, adopting the victim oriented
approach, categorically affirmed the view taken in V Sriharan to the effect that it must be stated
that such ray of hope was much more for the victims who were done to death and whose
dependents were to suffer the aftermath with no solace left. Therefore, when the dreams of such
victims in whatever manner and extent it was planned, with reference to oneself, his or her
dependents and everyone surrounding him was demolished in an unmindful and in some case in
a diabolical manner in total violation of the Rule of Law which is prevailing in an organized
society, they cannot be heard to say only their rays of hope should prevail and remain intact. The
Court, on the facts of the case, said that there is no scope to apply the concept of ray of hope to

26
See Para 40 of the Judgment.
27
For better understanding of Ray of Hope Principle, please see fourth chapter titled Critical analysis of Alternative
Sentencing.

94
come for the rescue of such hardened, heartless offenders, which if considered in their favour
will only result in misplaced sympathy and again will be not in the interest of the society. 28

3.2 ALTERNATIVE SENTENCING TO DEATH PENALTY: TYPES

In devising the alternative sentencing to death penalty by the Supreme Court, three patterns of
alternatives are observed:

a) Consecutive Life Imprisonment Sentencing29;

b) Life imprisonment till the end of life without any right of remission;

c) Fixed term life imprisonment i.e. 20 or 25 or 30 years or for more periods;

Before I begin my study on the alternative sentencing to death penalty, one point would require
clarification. The alternative sentencing i.e. life imprisonment for the rest of life or fixed term
life imprisonment or consecutive life imprisonment would not affect the clemency power of the
President and Governor under Articles 72 and 161 of the Constitution of India. 30 In Swamy

28
See Para 74 of the Vikas Yadav Judgment (Supreme Court).
29
Regarding alternative sentencing, the Delhi High Court in Vikas Yadav v. State of UP(MANU/DE/0294/2015)
said that so far as sentencing for offences punishable with death or life imprisonment is concerned, four options of
punishments are recognized: the first, death penalty; the second, life imprisonment subject to Sections 432 to 433A
of CrPC; the third, life meaning, either the whole of the remainder of life, or, a mandatory fixed term of
imprisonment before which an application for remission and a fourth, upon conviction for multiple offences, the
sentences awarded shall run consecutively, not concurrently (See Para 234 of the Judgment).
30
State of UP vs. Sanjay Kumar (2012) 8 S.C.C 537 (India) and also in Swamy Shraddananda v. State of Karnataka
(2008) S.C.C 2008 (India). In a very recent judgment of the Supreme Court in State of Gujarat and Anr. v. Lal Singh
@ Manjit Singh and Ors,A.I.R 2016 S.C 3197 (India)), the court quoting from Maru Ram case observed that there is
a distinction between the statutory exercise of the power of remission by the Government and the exercise of power
by the Constitutional authorities under Articles 72 and 161 of the Constitution of India. The Court said that the
power which is the creature of the Code cannot be equated with a high prerogative vested by the Constitution in the
highest functionaries of the Union and the States, for the source is different and the substance is different. The Court
observed that Section 433-A Code of Criminal Procedure cannot be invalidated as indirectly violative of Articles 72
and 161 of the Constitution. In Lal Singh case, the Court referred to Union of India v. V. Sriharan @ Murugan and
Ors, 2015 (13) SCALE 165 (India) wherein the Constitution Bench opined that constitutional power of remission
provided under Articles 72 and 161 of the Constitution will always remain untouched, inasmuch as, though the
statutory power of remission, etc., as compared to constitutional power under Articles 72 and 161 looks similar, yet
they are not the same. The Court made this observation in context of dealing with the alternate sentencing and said
that it will not touch upon the prerogative power under Articles 72 and 161 of the Constitution. However, here it
would be pertinent to note that clemency power under the constitution could be subjected to limited judicial review.
In Bikas Chatterjee v. Union of India and Ors.((2004) 7 S.C.C. 634 (India) the Constitution Bench while dealing
with the power of judicial review in respect of order passed under Article 72 of the Constitution held that the powers
of judicial review are very limited. Relying on Maru Ram case, the Court observed that it is only in a case of no
consideration or consideration based on wholly irrelevant grounds or an irrational, discriminatory or mala fide
decision of the President which can provide ground for judicial review. Dealing with the powers of the Governor,
the Court referred to the principle laid down in Satpal v. State of Haryana(2000) 5 S.C.C 170 (India) and opined that

95
Shraddananda case, the court has clarified that while passing an order of alternative sentencing,
the court deals with the powers of the State under the provisions of the Code of Criminal
Procedure, the Prisons Acts and the Rules framed by the states, and not with clemency power i.e.
power of the President and the Governor under Articles 72 and 161 of the Constitution of India.

3.2.1 CONSECUTIVE LIFE IMPRISONMENT SENTENCING: Before I begin my study

on award of consecutive life imprisonment sentencing in death penalty cases as one of the
alternatives to death penalty devised by the Supreme Court, it would be relevant here to
understand the concept of concurrent and consecutive sentencing through the existing legal
provisions and various case laws on the subject.

3.2.1.1 CONSECUTIVE AND CONCURRENT SENTENCING: The law relating to

consecutive sentencing is laid down in Sections 31 and 427 of the Criminal Procedure Code,
1973. A brief look at Sections 31 and 427 and few case laws on the subject would enable us to
understand consecutive sentencing in a much better manner. Section 31(1) of the CrPC says that
when a person is convicted at one trial for two or more offences, the court may, subject to the
provisions of Section 71 of the IPC, sentence him for such offences, to the several punishments
prescribed therefore which such court is competent to inflict; such punishments when consisting
of imprisonment to commence the one after the expiration of the other in such order as the court
may direct, unless the court directs that such punishment shall run concurrently. Sub-section (2)
of Section 31 says that in the case of consecutive sentences, it shall not be necessary for the court
by reason only of the aggregate punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of a single offence, to send the
offender for trial before a higher court provided that(a) in no case shall such person be sentenced
to imprisonment for longer period than fourteen years; and (b) the aggregate punishment shall
not exceed twice the amount of punishment which the court is competent to inflict for a single
offence. On the other hand, sub-section (1) of Section 427 says that when a person already

the limited grounds of judicial review are (i) the Governor exercising the power under Article 161 himself without
being advised by the Government; or (ii) the Governor transgressing his jurisdiction; or (iii) the Governor passing
the order without application of mind; or (iv) the Governor's decision is based on some extraneous consideration; or
(v) mala fides. It is on these grounds that the court may exercise its power of judicial review in relation to an order
of the Governor under Article 161 or an order of the President under Article 72 of the Constitution, as the case may
be.

96
undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment
or imprisonment for life, such imprisonment or imprisonment for life shall commence at the
expiration of the imprisonment to which he has been previously sentenced, unless the court
directs that the subsequent sentence shall run concurrently with the previous sentence. Sub-
section (2) of the same section provides that when a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or for
life, the subsequent sentence shall run concurrently with such previous sentence. The difference
between Sections 31 and 427 of the CrPC is that former is applicable in case of a single trial
whereas latter is applicable when a person is convicted of several offences in more than one trial.

One important principle which is used to distinguish consecutive sentence from concurrent
sentence is the single transaction rule which means that if a given transaction constitutes two
offences under two enactments, then it would be proper to award concurrent sentencing in such
cases. However, the single transaction rule has no application in those cases where the
transaction relating to the offences is not the same or the facts constituting the two offences are
quite different and in such cases consecutive sentencing can be imposed. This was the point
emphasized by the Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmad v. Assistant
Collector of Custom, Ahmadabad. 31However, the single transaction rule is not the predominant
test. Everything depends upon the discretion of the judge. There are various factors which are
taken into account in order to determine whether consecutive sentence is to be imposed or
concurrent sentencing. Gravity of the offence is another relevant factor. But there is no hard and
fast rule. Much depends upon the facts of the case and how the judge perceives the situation.
Here it would be pertinent to have a look at few case laws on the subject.

An important ruling of the Supreme Court on the subject in which the court laid down the
principle of single transaction rule as mentioned above is Mohd Akhtar Hussain case. It is based
on Section 427 of the CrPC (when a person already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to imprisonment or imprisonment for life). In this case, the
court laid down the principle that the gravity of the offence cannot be the sole ground for tilting
in favour of consecutive sentencing. The brief facts of the case are that the appellant, a Pakistani

31
(1988) 4 S.C.C. 183 (India).

97
national, was arrested from Ahmadabad for being in possession of 7,000 tolas 32 of gold and was
convicted under Section 85 of the Gold Control Act, 1968 and sentenced to imprisonment for
seven years. He pleaded guilty to the charge. While he was in judicial custody in respect of the
aforesaid offence, a further investigation by the police exposed the smuggling racket ran by him
and consequently he was also booked under the Customs Act, 1962 and was sentenced to four
years rigorous imprisonment. The sentences were directed to run consecutively. The appellant
wanted sentence to run concurrently and preferred appeal to the Supreme Court. The court held
that single transaction rule for concurrent sentences has no application if the transaction relating
to offences is not the same or the facts constituting the two offences are quite different. The court
observed that though the case under Customs Act and Gold Control Act overlap to some extent
but they are based on different transactions and so the lower court was right in directing that
sentences are to run consecutively. The court said that the complaint against the appellant under
Gold Control Act is for the possession of 7,000 tolas of Gold prohibited under Section 85 of the
said Act whereas the Complaint under Custom Act is with regard to the smuggling of the Gold
worth Rs 12.5 crores and export of silver worth Rs 11.5 crores under Section 135 of the Customs
Act. Another important issue raised in this case was whether the appellant could be sentenced to
maximum imprisonment for both the offences and that too directed to run consecutively. While
the appellant was sentenced to maximum imprisonment of seven years under the Gold Control
Act, he was just sentenced to four years under the Customs Act. The contention of the State was
that he should be sentenced to maximum imprisonment of seven years also under the Customs
Act. The High Court had accepted the contention of the State and enhanced the punishment to
seven years for offence under Section 135 of the Customs Act taking into account the enormity
of the crime. Answering to this contention, the Supreme Court said in Para 16 of the Judgment,
“We have carefully perused the entire material on record. It may be recalled that the appellant
was given the maximum sentence of 7 years in the previous case under Gold (Control) Act. The
conviction there under was also based on the plea of guilty. The latter sentence under the
Customs Act was also on the plea of guilty. Generally, it is both proper and customary for
Courts to give credit to an accused for pleading guilty to the charge. But no credit need be given
if the plea of guilty in the circumstance is inevitable or the accused has no alternative but to

32
It was the base unit of mass in the British Indian system of weights and measures introduced in 1833, although it
had been in use for much longer. It is now standardized as 180 troy grains (11.663 8038 grams).

98
plead guilty. The accused being caught red handed is one such instance. The first case under the
Gold (Control) Act against the appellant falls into the latter category. 7,000 tolas of Gold of
foreign mark of the value of Rs. 1.4 crores were seized from the possession of appellant. The plea
of guilty in that case was inevitable. The Court was, therefore, justified in awarding the
maximum sentence. But the second case under the Customs Act was not of that type. Here the
prosecution has to prove many things. There are 18 other accused facing the trial in the same
case. The appellant, however, pleaded guilty perhaps on legal advice. He must have been told
that some credit for such plea would be given by the court and if the credit is not given and the
maximum sentence is awarded the appellant is surely entitled to complain for giving the
maximum sentence.” The court further said that enormity of the crime committed is relevant for
measuring the sentence but the court should also keep in mind the maximum sentence being
awarded to the accused in one case before imposing the maximum sentence in another case
which has been directed to run consecutively even though the second offence is grave. The court
emphasized that totality of the sentences has to be kept in mind if the accused are to be awarded
consecutive sentence. The court, while concurring with the sentence awarded by the trial court,
said that total sentence of eleven years (7 years under Gold Control Act plus 4 years under
Customs Act) would suffice in the present case and there should not be undue insistence on the
enormity of the crime. The court said that the broad discretion allowed by the legislature to the
court cannot be narrowed down to seriousness of offence and no single consideration can
determine the proper sentence.

Another important case in line is Ranjit Singh vs. Union Territory of Chandigarh.33 The case
primarily deals with consecutive sentencing in life imprisonment cases which will be relevant to
the matter under enquiry. In this case, the appellant was convicted for the offence of murder
under Section 302 IPC and was sentenced to life imprisonment. While on parole, he committed
another murder and was convicted under Section 303 of the IPC (now defunct) which was later
on altered to one under Section 302 of the IPC. He was sentenced to life imprisonment for
second offence by the Supreme Court and it was ordered that it would run consecutively with the
earlier sentence of life imprisonment in case any remission or commutation in respect of his
earlier sentence is granted to him by the appropriate government. He filed a writ petition under

33
A.I.R 1991 S.C. 2296 (India).

99
Article 32 of the Constitution of India contending that the mode of execution of sentence should
be brought in consonance with Section 427 (2) of the CrPC and that the sentence should run
concurrently considering the normal life span of a human being. The Supreme Court undertook
an analysis of Section 427 (1) and 427 (2) of the CrPC. The court said that Sub-section (1)
applies to those cases where a person already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to imprisonment or life imprisonment. Now, Sub-section
(1) says that in such cases on the expiry of first sentence, the second sentence shall start running
consecutively unless the court directs that the subsequent sentence to run concurrently with the
previous sentence. Thus, where the sentence is for fixed term, the subsequent sentence should be
consecutive unless directed to run concurrently. Sub-section (2) of the same section provides that
for an offender already undergoing sentence of imprisonment for life who is sentenced on a
subsequent conviction to imprisonment for a term or for life, then the sentence shall run
concurrently. Therefore, under sub-Section (2), there is no question of sentence being made to
run consecutively unlike the general rule laid down in Sub-Section (1) of Section 427. This is
due to the fact that there is only one life span and hence the sentence on a subsequent conviction
of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life
sentence and certainly not added to it since extending the life span of the offender or for that
matter anyone is beyond human might. It is this situation which has been reiterated in sub-
section (2). Thus sub-section (2) is in the nature of an exception to the general rule enacted in
sub-section (1) of Section 427 CrPC that a sentence on subsequent conviction commences on
expiry of the first sentence unless the court directs it to run concurrently. The court said that it is
well settled since the decision of this Court in Gopal Vinayak Godse34 and reiterated in Maru
Ram case 35 that the imprisonment for life is a sentence for the remainder of the life of the
offender unless the remaining sentence is commuted or remitted by the appropriate authority.
This being so, at the stage of sentencing by the court on a subsequent conviction, the earlier
sentence of imprisonment for life must be understood in this manner and therefore, there can be
no question of subsequent sentence of imprisonment for a term or for life running consecutively
which is the general rule laid down in sub-section (1) of Section 427. The main issue in this writ
petition was interpretation of the following phrase of the order of the Supreme Court while

34
Gopal Vinayak Godse v. The State of Maharashtra and Ors, A.I.R1961S.C 600 (India).
35
Maru Ram and Ors. v. Union of India (UOI) and Ors, A.I.R1980 S.C 2147 (India).

100
awarding life imprisonment in second murder, “….We therefore, direct that in case any
remission or commutation in respect of his earlier sentence is granted to him the present
sentence should commence thereafter.” The writ was filed to contend that the above phrase is
inconsistent with Section 427 (2) of the CrPC and also to bring the second sentence of life
imprisonment in line with Section 427(2) of the CrPC i.e. to make it run concurrently. The court
then said that the above phrase should be interpreted in the light that in case any remission or
commutation is granted in respect of the earlier sentence of life imprisonment then the benefit of
that remission or commutation will not ipso facto be available in respect of the subsequent
sentence of life imprisonment which would continue to be unaffected by the remission or
commutation in respect of the earlier sentence alone. The consequence is that the petitioner
would not get any practical benefit of any remission or commutation in respect of his earlier
sentence because of the superimposed subsequent life sentence unless the same corresponding
benefit in respect of the subsequent sentence is also granted to the petitioner. It is in this manner
that the direction is given for the two sentences of life imprisonment not to run concurrently. As
a result, the court reached to the conclusion that abovementioned phrase is not violative of
Section 427 (2). The court then dismissed the writ petition and converted it into a petition for
clarification of judgment. Another relevant judgment is the judgment of the Punjab and Haryana
High Court in Jang Singh vs. State of Punjab.36 In this case, the appellant was directed to suffer
rigorous imprisonment in two different FIRs and he made the petition for direction to make the
sentences awarded in these two different FIRs to run concurrently. The Division Bench referred
the matter to the Full Bench of the Punjab and Haryana High Court to consider the question
raised in the application that though the court has the discretion to convert consecutive
sentencing into concurrent when two different offences have been committed, but the principle,
method and in what manner this judicial discretion is to be exercised has not been laid down. The
full Bench referred to Section 427 of the Criminal Procedure Code, 1973 and observed that the
general principle is that sentencing should take effect immediately on conviction and the same
cannot be postponed. However, Section 427 of the CrPC contains an exception to the general
principle governing execution of sentence when awarded by a court of law. Referring to sub-
section (1), the effect is that a person already undergoing a sentence of imprisonment if
sentenced to subsequent imprisonment, then that subsequent imprisonment is to commence only

36
(AIR 2007 PHHC).

101
on the expiry of the previous sentence unless the court directs that both sentences are to run
concurrently. Section 31 of the CrPC also enacts the rule that sentences are to run consecutively
unless the courts direct that they are to run concurrently. However, the difference between
Sections 31 and 427, as mentioned above, is that former relates to those cases where a person is
convicted at one trial of several offences and different/several sentences are awarded to him
whereas latter is applicable to those cases where a person already undergoing the sentence of
imprisonment in one trial is sentenced to imprisonment in a subsequent trial. Though Section 31
lays down that the general principle that sentencing to commence after expiration of the other but
still the court awarding the same has the discretion to direct that such punishments shall run
concurrently. There should be no difficulty where the same court is required to award several
punishments at one trial of two or more offences. However, the difficulty arises when a person is
sentenced to undergo an imprisonment and is subsequently convicted and is imprisoned either to
a term or imprisonment for life at the subsequent trial. In those cases, the court still has the
power to order that sentences will run concurrently with the previous sentence but there is no
indication in regard to the principle governing the same. The court referred to the case of State of
Maharashtra vs. Najakat Ali Mubarak Ali37 in which it was held:

“Thus, the sentence of life imprisonment imposed on the same person in two different convictions
would converge into one and thereafter it would flow through one alone. Even if the sentence in
one of those two cases is not imprisonment for life but only a lesser term the convergence will
take place and the post-convergence flow would be through the same channel. In all other cases,
it is left to the Court to decide whether the sentence in two different convictions should merge
into one period or not. If no order is passed by the Court the two sentences would run one after
the other. No doubt Section 427 is intended to provide amelioration to the prisoner. When such
amelioration is a statutory operation in cases falling under the second Sub-section, it is a matter
of choice for the court when the cases fall within the first Sub-section. Nonetheless, the entire
section is aimed at providing amelioration to a prisoner. Thus a penumbra of the succeeding
section can be glimpsed through the former provision.”

Thus, it is generally left to the discretion of the court as to whether sentences in two different
convictions would merge into one or not. If there is no specific order passed by the court, the two

37
(2001) 6 S.C.C. 311 (India).

102
sentences as per sub-section (1) of Section 427 have to run one after another. The court further
observed in Jang Singh case that discretion to make the sentences to run consecutively or
concurrently would be governed by different considerations like facts of each case, nature and
character of the offences, criminal history sheet and record of the offender, his age and sex etc.
Thus, these factors would be relevant in deciding the nature of sentence-consecutive or
concurrent. However, the court said that it is not exhaustively possible to lay down all the factors
that may be taken into considerations while exercising the discretion under Section 427 (1) of the
CrPC. Thus, the normal rule under sub-section (1) is consecutive sentence and the discretion is
given to the court to award concurrent sentence. The court also observed that if discretion of
concurrency is to be applied in case of habitual offenders, it may defeat the objective of Section
427 (1) and would amount to hostile discrimination since it would amount to giving similar
treatment to a first time as well as habitual offender. However, still much rest on the discretion of
the judge. In a recent judgment on the subject i.e. Manoj v. State of Haryana38, the Supreme
Court ignored the past criminal background of the appellant and converted his sentencing from
consecutive to concurrent on the ground of single transaction rule. The facts of this case were
that the appellant went to the court premises with the gun to kill a person who was being taken to
the judicial lock up by the police constable and fired gun shots at him. However, the victim
escaped death and was only injured. During the investigation, it was found that it was a case of
mistaken identity. The appellant was prosecuted for offences under Section 307 (Attempt to
Murder) of the IPC and Sections 25 and 27 of the Arms Act, 1959. The trial court convicted the
appellant under Section 307 of the IPC and Sections 25 and 27 of the Arms Act. The trial court
ordered him to undergo rigorous imprisonment for 10 years under Section 307 of the IPC and to
pay a fine of Rs. 5,000 and 3 years rigorous imprisonment each under Sections 25 and 27 of the
Arms Act and fine of Rs. 2000/- each. The trial court ordered that sentences were to run
consecutively and not concurrently on the ground that the appellant was previously convicted for
committing a similar offence. On appeal being made to the High Court, the court confirmed the
conviction and sentence passed by the trial court observing that accused does not deserve any
mercy on the facts and circumstances of the case as he has a tendency of repeating commission
of similar offences in the court premises and the court premises cannot be permitted to be use as
a battleground. The appellant made second appeal to the Supreme Court. The counsel for the

38
(2013) 9 S.C.C. 190 (India).

103
appellant referred to the decision of the Supreme Court in Mohd. Akhtar Hussain v. Collector of
Customs, Ahmadabad and Anothers in support of the proposition of law laid down to the effect
that the basic rule of thumb over the years has been the so called single transaction rule for
concurrent sentences. If a given transaction constitutes two offences under two different
enactments, then generally it would be wrong to impose consecutive sentence unless and until
the facts constituting the two offences are different. The learned counsel in Manoj case also
referred to the case of State of Maharashtra vs. Najakat alias Mubarak Ali39 wherein it was said
in Para 17 of the case:

“In the above context, it is apposite to point out that very often it happens, when an accused is
convicted in one case under different counts of offences and sentenced to different terms of
imprisonment under each such count, all such sentences are directed to run concurrently. The
idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact,
and in effect be imprisonment for other counts as well.”

The Supreme Court said that the ground on which the appellant was awarded consecutive
sentencing was due to the previous criminal record of the appellant for a similar type of offence
of shooting in the court premises. However, the sentences imposed upon the appellant for
different offences to run consecutively under the IPC and the Arms Act are erroneous in law as it
is contrary to the law laid down by the court in cases cited above. The court said that as the
offence committed by the appellant have been committee under a single transaction, it is well
settled position of law that the sentences must run concurrently and not consecutively. The court
also took into account the young age of the offender and observed that consecutive sentencing
would not be appropriate. Hence, appeal was partly allowed and the sentences were ordered to
run concurrently and not consecutively. Thus, the past criminal background of the appellant was
not taken as a material factor in the case and the court relied on single transaction rule.

3.2.1.2 CONSECUTIVE LIFE IMPRISONMENT SENTENCING IN DEATH PENALTY

CASES: ITS LEGALITY AND VIABILITY: As mentioned in the beginning of the chapter,
one of the alternative sentencing devised by the Supreme Court in capital punishment cases in
India is consecutive life term imprisonment. An important case in this regard on consecutive

39
supra note 371.

104
sentencing in death penalty is the 2013 judgment of the Supreme Court in Sanaullah vs. State of
Bihar.40 It was a case of triple murder. In this case, both the trial court and the High Court had
awarded death penalty to the appellant for committing triple murder. The appellant went to the
Supreme Court and challenged the sentence of death penalty. The Supreme Court commuted the
death penalty into rigorous imprisonment of life for each of the three offences of murder with the
direction that punishment shall run consecutively and not concurrently. The Supreme Court
resorted to Section 31(1) of the Criminal Procedure Code which empowers the court to inflict
sentences of imprisonment for more than one offence to run either consecutively or concurrently
and held that sentences of rigorous imprisonment for life for three offences (triple murder) will
run consecutively and not concurrently. However, it is difficult to understand as to how
punishment of three rigorous imprisonments for life will run consecutively? Legally, is it
sustainable? If the normal rule of life imprisonment is taken into account, then it means
imprisonment for the whole life of the convict and the convict has no absolute right to be
released after fourteen years as this was the law laid down by the Constitution Bench of the
Supreme Court in Gopal Vinayak Godse and Maru Ram case. The only right the convict has is to
make petition for remission after fourteen years of incarceration under various statutes and
prison rules and its acceptance would depend upon the discretion of the appropriate government.
In Sanaullah case, if the remission power is exercised by the government on all the three
occasions, the minimum total length of punishment will be 42 years in prison (if the remission is
exercised soon after complying with Section 433-A). Thus, there are two possibilities in
Sanaullah case: either the appellant will remain in jail for the rest of his life (if the appropriate
government choose not to remit the sentence) or if the remission power is exercised by the
government on all the three occasions, he will remain in jail for the minimum period of 42 years.
This sentencing approach conflict with the earlier judgment of the Supreme Court in Najakat Ali
Mubarak Ali case wherein the court has said that the sentence of life imprisonment imposed on
the same person in two different convictions (I take here to mean either in one trial or in case of
more than one trial) would converge into one and thereafter it would flow through one alone ( as
the court in Najakat case was of the view that consecutive sentencing in life imprisonment cases
will not be statutorily compatible). However, the Najakat judgment is in conflict with the Ranjit
Singh (supra) case wherein the court awarded two life imprisonment in murder cases and ordered

40
(2013) 3 S.C.C. 52 (India).

105
that both shall run consecutively and interpreted it in the manner that in case any remission or
commutation is granted in respect of the earlier sentence of life imprisonment then the benefit of
that remission or commutation will not ipso facto be available in respect of the subsequent
sentence of life imprisonment which would continue to be unaffected by the remission or
commutation in respect of the earlier sentence alone. In other words, in order to get the practical
benefit of remission, the state government has to exercise the power of remission again and by
virtue of Section 433-A, it can exercise that power only after the convict has suffered minimum
incarceration of fourteen years. Thus, in Ranjit Singh case, the convict has to be in imprisonment
for the minimum period of 14+14 years = 28 years if the State Government exercises power soon
after fourteen years of incarceration in both the cases.

Again the two Judge Bench in State of Rajasthan vs. Jamil Khan41followed the approach adopted
in Sanaullah case. In this case, the respondent was convicted for the offences under Sections
302, 376 and 201 of Indian Penal Code. The trial court awarded death penalty for the offence of
murder which was commuted by the High Court into life imprisonment. Apart from the death
sentence, the brutal manner in which the rape was committed, the trial court had awarded life
imprisonment for the offence of rape and for the offence under Section 201 of IPC, he was
awarded three years rigorous imprisonment. As against the High Court commutation of death
into life for the offence of murder, the state made appeal to the Supreme Court with the argument
that it was a fit case for award of death sentence. The Supreme Court negatived the argument of
the state that the case was fit for death. On punishment, the Supreme Court noted that all the
three punishments were directed to run concurrently by the High Court. The Supreme Court
observed that life imprisonment means imprisonment till the end of one’s life. However, in view
of the power of the State for remission and commutation under Section 432 and 433 of the
Criminal Procedure Code, 1973 and in view of the facts and circumstances of the case in which
the brutal rape and murder was committed, the Supreme Court ordered that the sentences shall
run consecutively in case any remission or commutation is exercised by the executive authority
in favour of the respondent for the punishment of life imprisonment. Thus the order of sentence
will be that the respondent will undergo life imprisonment first. If it is commuted or remitted by
the State, then the respondent will undergo seven years imprisonment for the offence of rape (the

41
(2013) 10 S.C.C .721 (India).

106
Supreme Court commuted life imprisonment into seven years for the offence of rape) and then
the respondent shall undergo three years rigorous imprisonment for the offence under section
201 of the IPC. Thus, the Supreme Court applied consecutive sentencing on the same line as in
Sanaullah.

Thus, the consecutive sentencing in life imprisonment cases poses a serious question:

 Is consecutive sentencing statutorily permissible in life imprisonment cases as life

imprisonment ordinarily means imprisonment till the end of life and award of
consecutive sentencing in such cases will be meaningless and futile exercise? (Section
427(2) of the CrPC adheres to the same principle). 42

3.2.1.3 TWO LINES OF THOUGHT: One line of thought in Najakat43, Duryodhan Rout44,
Cherian45 and like cases wherein the Supreme Court has said that it is not statutorily permissible
as life imprisonment means imprisonment till the end of life and consecutive sentencing in such
cases is not statutorily permissible.

Second line of thought in Ravinder Chouthmal 46 , Ranjit Singh 47 , Sanaullah 48 and Shankar
Kishan Rao Khade 49 and other like cases where the Court has said that it is statutorily
permissible as it is taken to mean that in case remission is exercised in respect of first sentence
then the benefit of remission will not be applicable in case of subsequent sentences of life
imprisonment.

Even prior to Sanaullah Khan case, the Supreme Court has awarded consecutive sentence in
number of other cases where a single course of transaction has resulted in offence of murder
along with some other offences. For instance, Ravindra Trimbak Chouthmal case is one of those

42
It says that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent
conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with
such previous sentence.
43
supra note 371.
44
Duryodhan Rout vs. State of Orissa (A.I.R. 2014S. C3345 (India).
45
O.M. Cherian vs. State of Kerala (A.I.R 2015 S.C. 303 (India).
46
Ravindra Trimbak Chouthmal vs. State of Maharashtra (A.I.R 1996 S.C 740 (India).
47
Ranjit Singh vs. Union Territory of Chandigarh (A.I.R 1991 S.C 2296 (India).
48
Sanaullah Khan vs. State of Bihar (2013) 3 S.C.C 52 (India).
49
Shankar Kisanrao Khade vs. State of Maharashtra (2013)5 S.C.C. 546 (India).

107
cases. It was a case of greed for dowry which led to the murder of the deceased. The court
awarded life imprisonment for the offence of murder and maximum sentence of seven years
rigorous imprisonment for the offence under Section 201 (causing disappearance of evidence) of
the IPC which is to run only after the sentence of life imprisonment is over. On the facts of the
case, Justice Hansaria (who delivered the judgment) was of the view that the atrocious way in
which head of the deceased was severed and the body was cut into nine pieces to cause
disappearance of evidence, the convict was liable not only to maximum punishment under
Section 201 of the IPC but also that the sentence of seven years should run consecutively after
the completion of life imprisonment. The Court said, “…the sentence has to run consecutively,
and not concurrently, to show our strong disapproval to the loathsome, revolting and dreaded
device adopted to cause disappearance of the dead body.”It appears that the court in Ravindra
Trimabk case wrongly interpreted life imprisonment as equivalent to fourteen years in ignorance
of Constitution Bench dictum in Gopal Vinayak Godse and Maru Ram case. 50

In an earlier judgment of the Supreme Court in Ronny vs. State of Maharashtra51, the court has
awarded consecutive sentencing in life imprisonment. The brief facts of the case are that the
appellants committed murder of three members of a family and committed sexually assault upon
the senior female member of the house and also the offence of robbery in the house. The trial
court after taking into account all the factors and relying on circumstantial evidence sentenced all
the three appellants to death under Section 302 read with Section 34 of the IPC and also
convicted them for other offences such as Sections 449,376(2) (g), 467/471 of the IPC. On
reference being made by the trial court and appeal by the appellants, the High Court confirmed
the death penalty. The appellants then preferred appeal to the Supreme Court. The Supreme

50
I have started writing my thesis in the year 2016. My observation that Ravinder Trimbak case was wrongly
decided as far as consecutive sentencing is concerned has been endorsed by the Constitution Bench of the Supreme
Court in Muthuramalingam and Ors. v. State(A.I.R 2016 S.C 3340 (India). The Constitution Bench said in Para 30
of the Judgment, referring to Ravinder Trimbak case, “We are not unmindful of the fact that this Court has in
several other cases directed sentences of imprisonment for life to run consecutively having regard to the gruesome
and brutal nature of the offence committed by the prisoner. For instance, this Court has in Ravindra Trimbak
Chouthmal v. State of Maharashtra (1996) 4 SCC 148, while commuting death sentence penalty to one of
imprisonment for life directed that the sentence of seven years rigorous imprisonment under Section 207 Indian
Penal Code shall start running after life imprisonment has run its due course. So also in Ronny v. State of
Maharashtra (1998) 3 S.C.C 625( India) this Court has while altering the death sentence to that of imprisonment for
life directed that while the sentence for all other offences shall run concurrently, the sentence under Section
376(2)(g) shall run consecutively after running of sentences for other offences. To the extent these decisions may be
understood to hold that life sentence can also run consecutively do not lay down the correct law and shall stand
overruled.”
51
A.I.R 1998 S.C. 1251 (India).

108
Court noted certain mitigating and aggravating circumstances and reached to the conclusion that
the case is not fit for awarding death and commuted death into life imprisonment. The court also
took into account the possibility of reform and rehabilitation while commuting death into life.
However, looking at the gravity of the offence and the fact that it was pre planned and cold
blooded murder, the Supreme Court directed that the sentence under Section 376(2) (g) (for gang
rape) of the IPC of 10 years rigorous imprisonment shall be served after the sentence of life
imprisonment (for the offence of murder) is over.

In a 2013 judgment of the Supreme Court in Sandesh vs. State of Maharashtra 52 , the court
awarded consecutive life imprisonment sentencing. The facts of the case are that the appellant
committed robbery in the house of the deceased and in course of committing robbery brutally
murdered the deceased, a old lady by inflicting multiple injuries on her body and also committed
rape and inflicted serious injuries on another lady with the intention to kill her who happens to
present in the house at that time and was five months pregnant. The appellant was arrested and
prosecuted. The trial court convicted him for the offences under Sections 302, 307,376 (e), 394
and 397 of the Indian Penal Code and came to the conclusion that the case of the accused fall
within rarest of rare case for the offence under Section 302 of the IPC and sentenced him to
death. 53 On appeal by the appellant and reference made by the trial court, the High Court
confirmed the death penalty. The Supreme Court took the view that the trial court and the High
Court did not take into account the state of mind of the accused at the relevant time, his capacity
to realize the consequences of his crime he was committing and the lack of intent on his part to
commit the offence of murder. The court said that accused had not entered the house to commit
murder. His intention was only to commit robbery. He was smelling of alcohol and hence may
not be exactly aware of the consequences of his acts. If the appellant intended to kill the victims,
he could have simply given an injury on the vital parts of the body and put them to death. His
conduct in inflicting large number of injuries shows the conduct of an abnormal person and he
was not in a balanced state of mind. The court observed that the absence of normal behaviour
even during the commission of the offence is a relevant consideration. Emphasizing on

52
(2013) 2 S.C.C.479 (India).
53
The trial court in a detailed judgment sentenced the appellant to death for offence under Section 302 of the IPC,
rigorous imprisonments of 10 years for offence under Section 307 of the IPC, imprisonment for life for offence
under Section 376 (e) of the IPC, imprisonment for life for offence under Sections 394 and 397 of the IPC. The Trial
Court held that all the sentences shall run concurrently.

109
rehabilitation, the court also said that doctrine of rehabilitation and doctrine of prudence are the
two guiding principles for proper exercise of judicial discretion. The court pointed out the fact
that prosecution had led no evidence to show that he was hardened criminal and there was no
possibility of his being reformed. One new mitigating circumstance which the court pointed out
in this case was that there was no evidence that during the time appellant was in jail, his conduct
was unworthy of any concession. Thus post-conviction conduct of the appellant has also become
a relevant circumstance. Taking into account all these factors, the court commuted the death
penalty into rigorous imprisonment for life with the direction that sentences for different
offences shall run consecutively. However, the question is if the life imprisonment is for life
which in ordinary sense means the entire life of the appellant, then why the sentences were
awarded consecutively? How the consecutive sentences will actually be operationalized when
the accused had already been awarded life imprisonment in respect of one count of offence i.e.
murder?

The recent case in which the court has awarded consecutive sentencing is Shankar Kishanrao
Khade vs. State of Maharashtra.54The brief facts of the case are that the appellant committed
rape and murder of an eleven year old girl. The deceased was subjected to sexual assault on more
than one occasion. The deceased was also suffering from moderate intellectual disability. The
trial court sentenced the appellant to death for the offence of murder under Section 302 of the
Indian Penal Code, imprisonment for life for the offence of rape under Section 376 of the IPC,
seven years rigorous imprisonment for the offence of kidnapping under Section 366 A
(Procuration of Minor Girl) of the IPC and five years rigorous imprisonment for the offence
under Section 363 (Punishment for Kidnapping) of the IPC. The High Court confirmed the death
sentence. The appellant made appeal to the Supreme Court. The Supreme Court commuted the
death penalty into rigorous imprisonment for life and held that all the punishments shall run
consecutively. It means that the award of life imprisonment for the offence of murder as well as
for rape will run consecutively. Thus, like Sanaullah case wherein three rigorous life
imprisonments was awarded which was to run consecutively, in Shankar Kishan Rao case also,
the punishment for both the offences i.e. murder and rape (life imprisonment) was to run

54
(2013) 5 S.C.C. 546 (India).

110
consecutively. Thus, once the rigorous imprisonment for life is over for the offence of murder55,
the appellant has to undergo another life imprisonment for the offence of rape, and then seven
years rigorous imprisonment for the offence under Section 366 A of the IPC. Thereafter, he has
to undergo five years rigorous imprisonment for the offence under Section 363 of the IPC. Thus,
he has to undergo the length of punishment the completion of which is nearly impossible
considering the average life span of a human being. Instead of taking such a complicated route,
why the Court did not award him the life imprisonment for the whole of his life without any right
of remission, following its own judgment in Swamy Shradhananda case or fixed term life
imprisonment, that is to say, 20, 25 or 30 years?56 Justice Madan Lokur also concurred with the
judgment of Justice Radhakrishnan as far as sentencing part was concerned. Though Justice
Lokur wrote the separate judgment explaining the inconsistent approach pertaining to
aggravating and mitigating circumstances adopted by the apex court in death penalty cases since
Bachan Singh judgement and drew attention to various cases, he did not go into the sentencing
aspect of the appellant and just simply endorsed the view of Justice Radhakrishnan. Following
Swamy Shraddananda case, the court could have simply awarded life imprisonment for the
whole of life without any right of remission. Further, award of two consecutive life
imprisonments signifies that court concurred with the view of Ranjit Singh and like cases that
such sentencing approach is permissible.

However, with abovementioned judgments of the Supreme Court, the consecutive life
imprisonment had emerged as one of the new alternative sentencing to death. However, as I have
mentioned above, consecutive life imprisonment sentencing is beset with its own problems.
Firstly, the question is whether it is legally permissible? Secondly, there are no guidelines as to
when it can be exercised and in what category of cases as awarding of consecutive or concurrent
sentencing is left on judicial discretion which raises important question under Articles 14 and 21
of the Constitution. 57 Thirdly, the viability of consecutive life sentence considering the normal

55
Assuming that the State will exercise the remission power under Section 433-A of the Criminal Procedure Code,
1973.
56
The Court in this case agreed with Swamy Shraddananda case regarding the devising of alternative sentencing. In
subsequent judgments on death penalty also, Justice Radhakrishnan has resorted to alternative sentencing (See Alber
Oraon v. Respondent: State of Jharkhand (A.I.R2014SC3202 (India) and Anil @ Anthony Arikswamy Joseph vs.
State of Maharashtra ((2014) 4 S.C.C 69 (India).
57
Articles 14 and 21 of the Constitution of India apply at the stage of sentencing also. In Santosh Kumar
Satishbhusan Bariyar v. State of Maharashtra(2009) 6 S.C.C. 498 (India), the Supreme Court said that a capital
sentencing system which results in differential treatment of similarly situated capital convicts violates Article 14 of

111
life span of a human being also comes under scanner as life span of an average human being
cannot be stretched unnaturally.

3.2.1.4 LEGALITY OF CONSECUTIVE LIFE IMPRISONMENT SENTENCING: In a

2014 judgment of the Supreme Court in Duryodhan Rout v. State of Orissa58, the Supreme Court
held that in the case of life term, other sentences would run concurrently. Thus, where a person
gets convicted for several offences one of which provides for life imprisonment as a punishment
(and the court chose to award life imprisonment), then all the sentences shall run concurrently
and not consecutively. The Bench observed, “In view of the fact that life imprisonment means
imprisonment for full and complete span of life, the question of consecutive sentences in case of
conviction for several offences at one trial does not arise.” The same view was espoused by the
Supreme Court in its judgment of Om Cherian @ Thankachan v. State of Kerala, wherein the
court had discussed the various issues pertaining to consecutive sentencing which are as follows:

ON CONSECUTIVE LIFE IMPRISONMENT

On the question of whether consecutive life imprisonment sentencing is permissible under the
present statutory provisions, the Supreme Court in Para 13 of the Judgment in Cherian case said
“Difficulties arise when the Courts impose sentence of imprisonment for life and also sentences
of imprisonment for fixed term. In such cases, if the Court does not direct that the sentences shall
run concurrently, then the sentences will run consecutively by operation of Section 31 (1) CrPC.
There is no question of the convict first undergoing the sentence of imprisonment for life and
thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such
direction would be unworkable. Since sentence of imprisonment for life means jail till the end of
normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run
concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges
exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two
life sentences are imposed on the convict, necessarily, Court has to direct those sentences to run
concurrently.”

the Constitution of India and since the procedure is arbitrary it also violates Article 21 of the Constitution of India.
The frequent findings as to arbitrariness in sentencing under Section 302 of the Indian Penal Code may violate the
idea of equal protection clause enshrined in Article 14 of the Constitution of India and may also violate Article 21
because a procedure which is arbitrary violates Article 21. However, as pointed out in Bariyar case, Section 302 is
not arbitrary but the way it is administered is leading to arbitrariness.
58
supra note 379.

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Justifying its interpretation, the court in Cherian case referred to the case of Ramesh Chilwal v.
State of Uttarakhand.59 In this case, the accused was convicted under Section 302 of the Indian
Penal Code and sentenced to undergo imprisonment for life. The accused was also convicted
under Sections 3(1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 and
sentenced to undergo rigorous imprisonment for ten years and under Section 27 of the Arms Act,
1959 sentenced to further undergo rigorous imprisonment for seven years. Considering the fact
that the trial court had awarded life sentence under Section 302 of the Indian Penal Code, the
Supreme Court directed that all sentences imposed under various statutory provisions to run
concurrently.

ON SINGLE TRANSACTION RULE

On Single Transaction Rule, the Supreme Court in Cherian case clarified the point to the effect
that when the prosecution is based on a single transaction rule where it constitutes two or more
offences then it would be more appropriate to order that sentences are to run concurrently instead
of consecutively. The court said that imposing separate sentences when the acts constituting
different offences form part of the single transaction is not justified. The court further said that
ambit of Section 31 is very wide covering not only single transaction constituting two or more
offences but also offences arising out of two or more transactions.

ON THE QUESTION OF DISCRETION

On the question of discretion of the judges in awarding consecutive and concurrent sentencing in
reference to section 31 of the CrPC (equally applicable to Section 427), the court said, “Under
Section 31 of the CrPC, it is left to the full discretion of the court to order sentences to run
concurrently in case of conviction for two or more offences. It is difficult to lay down any
straight jacket approach in the matter of exercise of such discretion by the courts. …Whether a
direction for concurrent running of sentences ought to be issued in a given case would depend
upon the nature of the case. The discretion has to be exercised along with judicial lines and not
mechanically.”

ON THE QUESTION OF WHETHER CONSECUTIVE SENTENCING IS A NORMAL RULE

59
(2012) 11 S.C.C. 629 (India).

113
On the question of whether consecutive sentencing is normal rule and concurrent sentencing an
exception, the court categorically said that there is no such rule. The court said, “We do not find
any reason to hold that normal rule is to order the sentence to be consecutive and exception is to
make the sentences concurrent. Of course, if the Court does not order the sentence to be
concurrent, one sentence may run after another in such order the court may specify...”

ON 14 YEARS RULE AND SECTION 31(2) OF THE CRPC

Clause (a) of the proviso to section 31 (2) of the CrPC says that aggregate of consecutive
sentencing in one trial must not exceed 14 years. The question is whether this rule will be
applicable in case of life imprisonment. Responding to this issue, the Supreme Court said that
fourteen years rule contained in clause (a) of the proviso to section 31 (2) CrPC will not be
applicable in relation to sentence of imprisonment for life, since imprisonment for life means the
convict will remain in jail till the end of his normal life.

Thus, Ronny, Sandesh, Sanaullah, Shankar Kishan Rao Khade cases are in direct conflict with
Ranjit, Duryodhan, Cherian cases as far as consecutive life imprisonment sentencing is
concerned. 60We can conclude that present position on consecutive life imprisonment sentencing
is not settled. Perhaps, a larger Bench (Om Cherian case is a judgment by three Judge Bench)
can resolve the issue.

3.2.1.5 CONSTITUTIONALITY OF CONSECUTIVE LIFE IMPRISONMENT

SENTENCING: The Constitution Bench of the Supreme Court in Muthuramalingam and Ors.
v. State61 put to rest this controversy. In this case, the appellants were convicted for several
offences including the offences under Section 302 of the Indian Penal Code for several murders
committed in a single course of transaction. For several offences of murder, the trial Court had

60
Regarding the consecutive life sentencing, in a recent judgment titled Vikas Yadav and Ors. vs. State of U.P. and
Ors(MANU/DE/0294/2015 (India),the Delhi High Court after tracing the history of consecutive life imprisonment
pronounced in various judicial verdicts as well as the interpretation placed upon Section 31 of CrPC held that award
of such consecutive life imprisonment is legally permissible (See Para 233 and 234 of the Judgment). At Para 233,
the Delhi High Court said that if the executive is considering remittance of the remainder of a life sentence imposed
on a convict at any stage, in order to ensure a minimum imprisonment, the sentencing court is also amply
empowered to direct that the punishment for other convictions including two life sentences, shall run consecutively.
The Delhi High Court also said that Bachan Singh case has suggested the option of imposing death punishment as a
penalty of last resort when any other alternative punishment would be futile. The options of awarding either fixed
term prison sentences or directing that the sentences would run consecutively, in fact, tantamount to following the
dictum in Bachan Singh case opting for the alternative punishment ( See Para 228 of the Judgment).
61
A.I.R 2016 S.C. 3340 (India).

114
awarded life sentences to run consecutively. Against the consecutive running of life sentences,
the appellants preferred appeal to the Supreme Court. The Three Judge Bench having noticed the
conflicting judgments of various benches of the Supreme Court on the matter referred the matter
to the larger Bench (Five Judge Bench). The Constitution Bench laid down the following
propositions in context of consecutive life imprisonment:

 The question, however, is whether the provision admits of more than one life sentences
running consecutively. That question can be answered on a logical basis only if one
accepts the truism that humans have one life and the sentence of life imprisonment once
awarded would require the prisoner to spend the remainder of his life in jail unless the
sentence is commuted or remitted by the competent authority. That, in our opinion,
happens to be the logic behind Section 427(2) of the Code of Criminal Procedure
mandating that if a prisoner already undergoing life sentence is sentenced to another
imprisonment for life for a subsequent offence committed by him, the two sentences so
awarded shall run concurrently and not consecutively. Section 427(2) in that way carves
out an exception to the general rule recognised in Section 427(1) that sentences awarded
upon conviction for a subsequent offence shall run consecutively. The Parliament, it
manifests from the provisions of Section 427(2), was fully cognizant of the anomaly that
would arise if a prisoner condemned to undergo life imprisonment is directed to do so
twice over. It has, therefore, carved out an exception to the general rule to clearly
recognise that in the case of life sentences for two distinct offences separately tried and
held proved the sentences cannot be directed to run consecutively.
 While multiple sentences for imprisonment for life can be awarded for multiple murders
or other offences punishable with imprisonment for life, the life sentences so awarded
cannot be directed to run consecutively. Such sentences would, however, be super
imposed over each other so that any remission or commutation granted by the competent
authority in one does not ipso facto result in remission of the sentence awarded to the
prisoner for the other.
 The power of the Court to direct the order in which sentences will run is unquestionable
in view of the language employed in Section 31 of the Code of Criminal Procedure. The
Court can, therefore, legitimately direct that the prisoner shall first undergo the term
sentence before the commencement of his life sentence. Such a direction shall be
115
 perfectly legitimate and in tune with Section 31. The converse however may not be true
for if the Court directs the life sentence to start first it would necessarily imply that the
term sentence would run concurrently. That is because once the prisoner spends his life in
jail, there is no question of his undergoing any further sentence. The Court laid down this
propositionin response to the contention of the appellants that once the appellants have
been sentenced to life imprisonment, any other sentence must be allowed to run
concurrently and not consecutively under any circumstance.

3.2.2 LIFE IMPRISONMENT TILL THE END OF LIFE: Before I proceed with life
imprisonment till the end of life as a mode of alternative sentencing, it would be relevant here to
have a brief look at the principle of remission.

3.2.2.1 PRINCIPLE OF REMISSION: The remission is an important concept in sentencing.

The law relating to remission and commutation is laid down in Section 432, 433 and 433 A of
the Criminal Procedure Code, 1973. Section 432 says that when any person has been sentenced
to punishments for an offence, the appropriate Government 62 may, at any time, without
conditions or upon any conditions which the person sentenced accepts, suspend the execution of
his sentence or remit the whole or any part of the punishment to which he has been sentenced.
Thus, Section 432 confers on the appropriate government power to suspend the execution of the
sentence or remit the whole or any part of the punishment to which the accused has been
sentenced. This can be done conditionally or unconditionally. Generally, the right to remission
belongs to the appropriate government i.e. the Central or State Government. The power to
commute sentence is contained in Section 433 of the CrPC, 1973. It says that the appropriate
government may without the consent of the person sentenced, commute –a) a sentence of death,
for any other punishment provided by the IPC; b) a sentence of imprisonment for life, for
imprisonment for a term not exceeding fourteen years or for fine; c) a sentence of rigorous
imprisonment for a simple imprisonment for any term to which that person might have been

62
The term “Appropriate Government” has been defined in Section 55 A of the Indian Penal Code. It says the
expression appropriate government means a) in cases where sentence is a sentence of death or is for an offence
against any law relating to a matter to which the executive power of the Union extends, the Central Government; b)
in cases where the sentence (whether of death or not) is for offence against any law relating to a matter in which the
executive power of the State extends, the Government of the State within which the offender is sentenced.

116
sentenced; d) a sentence of simple imprisonment for a fine. Under Section 432, the Government
can suspend or remit sentences, whereas under Section 433 the Government can commute
sentences. One important difference between both the sections is that unless the convict applies
for suspension or remission of sentence, the government cannot act under Section 432; but the
Government can act under Section 433 even without the consent of the person concerned.
However, both these sections should be read in the light of the Section 433-A of the CrPC, which
was inserted by Criminal Procedure Code (Amendment) Act, 1978. Section 433 A says that
notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is
imposed on conviction of a person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed upon a person has been commuted under
Section 433 into one of imprisonment for life, such person shall not be released from prison
unless he had served at least fourteen years of imprisonment. Section 433-A,therefore, imposes a
restriction on the remission powers of the government in respect of a convict who has been
sentenced to life imprisonment for offences for which death sentence is also one of the
punishments provided by law or where death sentence has been commuted under Section 433
into life imprisonment. It must be noted that Section 433-A does not provide a total ban on
remission of sentence but mandates that the said accused must not be released from the prison
unless he had served at least fourteen years of imprisonment. The restriction under Section 433-
A of the IPC comes into operation only when the power under Section 433 is exercised by the
appropriate Government and when the requirement of Section 433-A is met. In the case of Maru
Ram vs. Union of India, the Supreme Court said that dominant purpose of the legislature in
introducing Section 433-A is to secure a deterrent punishment for heinous offences committed
against the defence or security of the country. The effect of Section 433-A of the CrPC is to
restrict the exercise of power under Sections 432 and 433 of the CrPC by laying down the
principle that power would not be exercised so as to enable the two categories of convicts
referred to in Section 433 A to have freedom before they have completed the minimum fourteen
years of actual punishment. Certain principles relating to it were laid down by the Supreme Court
in course of its various judgments. In this section, I would focus on certain aspects of remission
through case laws which will help us in analyzing the alternative sentencing in much better
fashion. The law is almost settled on the point that life imprisonment in its ordinary sense means
imprisonment till the end of the life and there is no vested right to release after fourteen years of

117
incarceration. The convict can only make a petition for remission after fourteen years of
incarceration and the acceptance of the request for remission is the prerogative power of the
government. With the court awarding life imprisonment till the end of the life in death cases, the
discretionary power of remission of the appropriate government has been severely curtailed due
to the fact that the government will have no discretion in such cases to release the convict after
fourteen years of incarceration. In fact, it cannot even entertain an application for remission in
such cases. It is better to have a brief look at few case laws before we proceed ahead.

Gopal Vinayak Godse v. State of Maharashtra and Others is an important case on the remission
in life imprisonment cases and its significance lies in the fact that it is a Constitution Bench
decision which set an important precedent to be followed in subsequent cases. In this case, a writ
petition was filed by the petitioner, Gopal Vinayak Godse, who was convicted in 1949 for the
assassination of Mahatma Gandhi and was sentenced to transportation for life. He had earned
remission of 2893 days and when the same was added to the term of imprisonment actually
undergone by him, it exceeded the period of 20 years. 63 The question before the Supreme Court
was that whether he was entitled to be released immediately. The petitioner contention was that
his further detention in jail was illegal and he was entitled to immediate release. However, the
Constitution Bench rejected the argument of the petitioner observing that petitioner has not yet
acquired any right to be released since a sentence of transportation of life had to be undergone by
way of rigorous imprisonment for life in a designated prison in India. The Constitution Bench
further observed that Section 53 A 64 of the Indian Penal Code, introduced by the Code of
Criminal Procedure (Amendment) Act, 1955, provided that any person sentenced to
transportation for life before the Amendment Act, would be treated as sentenced to rigorous
imprisonment for life and imprisonment for life means imprisonment till the end of the life.
Justice Subba Rao, speaking for the Constitution Bench, said that the prisoner sentenced to life
imprisonment was bound to serve the remainder of sentence in prison unless the sentence was
commuted or remitted by the appropriate authority. Such a sentence could not be equated with
63
Under the previous law, the life imprisonment used to mean imprisonment for a minimum period of 20 years.
64
Section 53 A of the IPC provides that any reference to “ transportation for life” in any other law for the time being
in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed shall be
construed as reference to “imprisonment for life”. This point was further asserted in Mohammad Munna case
((2005) 7 S.C.C. 417 (India)) that imprisonment for life shall always be treated as rigorous imprisonment for life and
not simple imprisonment for life as transportation either for life or for fixed term always meant hard labour and
when the phrase transportation is replaced with imprisonment, it shall always carry the same meaning i.e. hard
labour.

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any fixed term. Regarding remission which a person earns under various prison rules, it was
observed by the Constitution Bench that the same could be taken into consideration only towards
the end of the term and the said question was exclusively within the province of the appropriate
government and in case of life imprisonment such remission is of no use. Another very important
case in this regard is the decision of the Constitution Bench in Maru Ram vs. Union of India. In
this case, several writ petitions were clubbed together and the common question was raised
regarding the length of imprisonment of a convict carrying a life sentence in view of the
amended provision of the Section 433-A (introduction of Section 433 A through the Criminal
Procedure Code (Amendment Act) 1978 of the CrPC). The Constitution Bench said that
remission vests no right to release when sentence is life imprisonment. Following Gopal Vinayak
Godse case, the Constitution Bench held that imprisonment for life lasts until the last breath and
whatever the length of remission earned, the prisoner can claim release only if the remaining
sentence is remitted by the Government. The Constitution Bench upholds the constitutionality of
the Section 433-A of the CrPC and affirmed its supremacy over the various remission rules of
the State Government. Again in a 1991 Judgment of the Supreme Court in Ashok Kumar vs.
Union of India65, a three judge Bench considered the provisions of Section 45 66 and 5767 of the
Indian Penal Code. The Court was of the view that provisions of Section 57 of the of the IPC

65
1991 S.C.C. (3) 498 (India). In Ashok Kumar case, the contention of the petitioner was that under the provisions
of the 1958 Prison Rules, a 'lifer' who has served an actual sentence of about 9 years and 3 months is entitled to be
considered for premature release if the total sentence including remissions works out to 14 years and he is reported
to be of good behaviour. However, the petitioner contended that his case for premature release is not considered by
the concerned authorities in view of the newly added Section 433A of the Code on the interpretation that by virtue
of the said provision the case of a 'lifer' cannot be considered for early release unless he has completed 14 years of
actual incarceration, the provisions of Sections 432 and 433 of the Code as well as the 1958 Rules notwithstanding.
Responding to this, the Supreme Court said that it is clear that unless the sentence for life imprisonment is
commuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law, a
convict is bound in law to serve the entire life term in prison; the rules framed under the Prisons Act or like statute
may enable such a convict to earn remissions but such remissions will not entitle him to release before he has
completed 14 years of incarceration in view of Section 433A of the Code unless of course power has been exercised
under Articles 72/161 of the Constitution (See Para 13 and 14 of the Judgment). In a previous case of State of
Madhya Pradesh v. Ratan Singh, A.I.R 1976 S.C. 1552 (India), the question before the Supreme Court was that
whether a prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the
Rules framed under the Prisons Act. The Supreme Court referred to Gopal Vinayak Godse v. State of Maharashtra,
A.I.R 1961 S.C. 600 (India) where the same question was raised which the Constitution Bench responded to by
holding that no such provision is found in the Indian Penal Code, Criminal Procedure Code or the Prisons Act
whereby a sentence for life imprisonment, without any formal remission by appropriate Government, can be
automatically treated as one for a definite period (See Para 4 of the Ratan Singh Judgment).
66
Section 45 defines Life. It says the word “Life” denotes the life of a human being, unless the contrary appears
from the context.
67
Section 57 defines fractions of term of punishment. It says that in calculating fraction of terms of punishment,
imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.

119
were to be reckoned as 20 years only for the purpose of working out the fraction of the terms of
imprisonment the convict had already undergone. The Court said that the “imprisonment for life”
would ordinarily mean imprisonment for the full or complete span of life. Again the debate as to
what constitute the “Life Imprisonment” came up in 2005 judgment of the Supreme Court in
Mohd Munna v. Union of India68, where the Court categorically laid down that life imprisonment
was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means
imprisonment for the whole of the remaining period of the convicted person’s natural life. The
Court observed that there was no provision either in the Indian Penal Code or in the Criminal
Procedure Code, whereby life imprisonment could be treated as either 14 years or 20 years
without there being a formal remission by the appropriate government. The court rejected the
contention that having regard to the provisions of Section 57 of the Indian Penal Code, a prisoner
was entitled to be released on completing 20 years of imprisonment under the West Bengal
Correctional Services Act, 1992 and the West Bengal Jail Code. 69

Another important aspect of remission is that it is the discretion vested with the executive and
not with the judiciary. The judiciary cannot remit the sentence. An important case in this regard
is the State v. Prem Raj.70In this case, the respondent was convicted under Section 7 read with

68
(2005) 7 S.C.C. 417 (India). In this case, the a writ petition was filed for the prayer for issuance of a writ of habeas
corpus to set the petitioner at liberty on the ground that he had remained in detention for more than 21 years. It was
contended that the length of the duration of imprisonment for life is equivalent to 20 years' imprisonment.
69
In Mohammad Munna case, one amongst the many contentions of the petitioner was that the length of the
duration of the imprisonment for life is equivalent to 20 years imprisonment and that too subject to further remission
admissible under law. He contended that on completion of the term of 20 years he was entitled to be released under
Rule 751(c) of the West Bengal Jail Code. He relied on the explanation to Section 61 of the West Bengal
Correctional Services Act, 1992 (West Bengal Act XXXII of 1992) where the imprisonment for life was equated to
be a term of 20 years imprisonment. The Supreme Court, following the Gopal Vinayak Godse Judgment, held that
the sentence of imprisonment for life is not for any definite period and the imprisonment for life must, prima facie,
be treated as imprisonment for the whole of the remaining period of the convict person's natural life. The appellant
took recourse to Section 57 of the Indian Penal Code which says that in calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Answering this, the Court
referred to the judgment of Kishori Lal v. Emperor (A.I.R 1945 P.C. 64 (India) where it was said, “Assuming that
the sentence is to be regarded as one of 20 years, and subject to remission for good conduct, he had not earned
remission sufficient to entitle him to discharge at the time of his application and it was therefore rightly dismissed
but, in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be
treated as one of not more than 20 years or that the convict is necessarily entitled to remission.” The Court in
Munna case said, “The Prisons' Rules are made under the Prisons Act and the Prisons Act by itself does not confer
any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the
terms of the prisoners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal
Jail Code do not confer any special right on the petitioner herein.”(See Para 9 of the Judgment). The Court made it
clear that life imprisonment does not mean imprisonment for 14 years or 20 years but must be taken to mean
imprisonment till the end of life of the prisoner.
70
(2003)7S.C.C. 121 (India).

120
Sections 13 (1) (d) and 13(2) of the Prevention of Corruption Act. He was sentenced to rigorous
imprisonment for two years and a fine of Rs 500/- under Section 7 and a rigorous imprisonment
for 3.5 years and a fine of Rs 1,000/ under Section 13 (2) of the Act. However, the learned single
judge of the Delhi High Court enhanced the amount of fine to Rs 15,000/- in lieu of the entire
sentences of imprisonment awarded to the convict and directed that on deposit of the fine, the
appropriate government will make an appropriate order for remission under Section 433 of the
CrPC. The Supreme Court, on appeal, did not like the approach of the High Court and observed
that the question of remission lay within the domain of the appropriate government and it was
not open to the High Court to give a direction in that regard.71

Thus, the power of the remission belongs absolutely to the appropriate government i.e. Central or
State Government and the judiciary has no role to play in it. However, with the judgment of the
Supreme Court in Swamy Shraddananda case laying the foundation for alternative sentencing in
death penalty cases and the court sentencing the accused to life imprisonment till the end of his
life or for a fixed term beyond 14 years, the right to remission of the appropriate government has
been severely curtailed in those cases. Taking note of this point, the Supreme Court in Sangeet v.
State of Haryana observed that the award of sentences ranging between 20 years and 35 years in
gruesome murder cases which fall short of rarest of rare case was impermissible as it limits the
power of the government to grant parole or remission to convicts showing good conduct. The

71
In Prem Raj case the Supreme Court made reference to the case of State of Punjab v. Kesar Singh (A.I.R. 1996
S.C. 2512 (India) where the Supreme Court held (in context of Section 433 (b) of the CrPC) “The mandate of
Section 433 CrPC enables the Government in an appropriate case to commute the sentence of a convict and to
prematurely order his release before expiry of the sentence as imposed by the courts. That apart, even if the High
Court could give such a direction, it could only direct consideration of the case of premature release by the
Government and could not have ordered the premature release of the respondent itself. The right to exercise the
power under Section 433 CrPC vests in the Government and has to be exercised by the Government in accordance
with the rules and established principles. The impugned order of the High Court cannot, therefore, be sustained and
is hereby set aside.” In Prem Raj case, the Supreme Court observed that the powers conferred upon the appropriate
government under Section 433 have to be exercise reasonably and rationally keeping in view reasons germane and
relevant for the purpose of law, mitigating circumstances and/or commiserative facts necessitating the commutation
and factors like interest of the society and the public interest (See Para 15 of the Prem Raj Judgment). Again, the
Supreme Court in V. Sriharan alias Murugan v. Union of India and Ors. (2014) 4 S.C.C. 242 (India) where the
question arose as to whether the writ petition can be filed to compel the appropriate government to exercise the
power of remission, the Supreme Court held that in so far as the implication of Article 32 of the Constitution is
concerned, we have already held that the power under Sections 432 and 433 of the CrPC is to be exercised by the
Appropriate Government statutorily. It is not for this Court to exercise the said power and it is always left to be
decided by the Appropriate Government, even if someone approaches this Court under Article 32 of the
Constitution. The Court in V Sriharan also held that barring such exceptional circumstances where there was
illegality or fraud in exercising remission, the power of remission always vests with the State Executive and this
court at best can only give a direction to consider any claim for remission and cannot grant any remission and
provide for premature release. The power of commutation exclusively rest with the Appropriate Government.

121
court was of the view that such an exercise effectively injunct the appropriate government from
exercising its power of remission for a specified period. However, in subsequent cases like Sahib
Hussain 72 , the Supreme Court followed the line adopted in Swamy Shraddananda case and
discarded the observation made in Sangeet case. However, the issue remains a legal and
constitutional one.73

3.2.2.2 CASES IN WHICH COURT AWARDED LIFE IMPRISONMENT TILL THE

END OF LIFE: As mentioned above, the alternative sentencing to death penalty reached a
landmark with the judgment of the Supreme Court in Swamy Shraddananda case.Swamy
Shraddananda case reflects the judicial disillusioned with the present sentencing options for
death penalty i.e. death or life imprisonment (in practice 14 years). In this case, the Court
awarded life imprisonment to the convict with the condition that he shall remain in prison till the
end of the life without any right of remission. To appreciate the situation, it would be better to
have a brief look at the facts of the case. The deceased, Shakereh, came from a very wealthy
family. She was the granddaughter of Sir Mirza Ismail, the former Dewan of Princely State of
Mysore. She had vast landed property in her name in and around Bangalore city. She had four
daughters. But she always wanted a son. Her husband was in Indian Foreign Service. She met the
appellant, Murali Manohar Mishra who called himself Swamy Shraddananda, while she was in
Delhi on a visit to Nawab of Rampur. The appellant was said to be well versed in handling urban
landed estate disputes. The deceased asked the appellant to come to Bangalore to enable her to
sort out the property dispute. The appellant went to Bangalore and started living in a part of her
house while her husband was posted as Ambassador to Iran. The appellant convinced the
deceased that his occult power would enable her to beget a son as the deceased was having a
strong desire for son. Over a period of time, the deceased fell in love with the appellant and
divorced her husband. The deceased and the appellant got married under the Special Marriage

72
Sahib Hussain v. State of Rajasthan (2013) 9 S.C.C. 778 (India)
73
In 2013 Judgment of State of Rajasthan vs. Jamil Khan (2013)10 S.C.C. 721 (India), the Supreme Court referred
to number of the judgements in which the court has devised or applied alternative sentencing i.e. Swamy
Shraddananda, Neel Kumar, Ram Anup Singh, and others and observed that it will be proper to amend Section 53 of
the Indian Penal Code and include Life Imprisonment without commutation or remission as one of the punishment.
The Court also observed that Justice Malimath Committee in its Report on "Committee of Reforms of Criminal
Justice System", submitted in 2003, had made such a suggestion but so far no serious steps have been taken in that
regard. The Court said that there could be a possibility of a provision for imprisonment till death without remission
or commutation but it should come from the legislature through amendment of Section 53 of the Indian Penal Code
(See Para 32 of the Judgment).

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Act, 1954 and started living together in the same house. The appellant used to manage her
properties. The deceased executed a Will and General Power of Attorney in favour of the
appellant. She opened a number of bank accounts jointly with the appellant. Then one fine day,
she suddenly disappeared mysteriously and lost touch with her daughters and other relatives. On
being enquired from the appellant, he made one excuses after the other as regards her
whereabouts. One of the daughters of the deceased, Sabah, lodged complaint with the Police.
The police started the investigation and suspected the role of the appellant in the disappearance
of the deceased. Finally, the appellant was arrested and he made the self-incriminating statement
before the police admitting his guilt. As the facts of the case goes, the deceased after five years
of marriage realized the fraud of the appellant. The appellant could sense that his game was up
and he will not be able to have a lavish life as he was having before. He then conceived a terrible
plan and executed it to perfection. A pit was dug up very close to his room and he told others that
it was for the construction of soak pit for the toilet. He got one portion of the wall of the
bedroom to be broken off so that a wooden box would pass through it. Then, as per the plan, he
administered to the deceased a very heavy dose of sleeping pills. Prior to that, he got the large
wooden box brought from his guest house to the bed room with the help of his servant which he
has brought in his house few days back. On the fateful day, there was no one in the house as the
house servant along with his wife went to his village as there was a death in his family. After the
deceased was in deep sleep due to overdose of sleeping pills administered by the appellant itself,
the appellant transferred her along with the mattress, pillow and bed sheet from bed to the
wooden box while, most probably, she was still alive. He then shut the lid of the box and pushed
it through the wall into the pit which he has dug just outside his bed room. Then he got the pit
filled up with the earth and gets the surface cemented and covered with stone slabs. After the
murder, he continues to live in the same house with the propagating lies to the outside world
about her whereabouts. Soon after her murder, as the investigation revealed, he started disposing
off her property and got it converted into the cash. This shows the motive for the crime. He sold
34 plots of land soon after her death as Power of Attorney was executed in his name. The
exhumed body of the deceased was recovered from the spot on the basis of the statement made
by the appellant to the investigating officer. The trial court passed the sentence of death which
was confirmed by the High Court. The High Court was of the view that the accused committed
the murder in a very brutal and gruesome manner and deserves no less than death penalty. The

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appeal was made to the Supreme Court by the appellant. Since there was difference of opinion as
to the punishment to be meted out to the appellant (Justice Markandey Katju was in favour of
death penalty and Justice S B Sinha wanted it to be commuted into life imprisonment), the matter
was referred to the larger Bench headed by Justice Aftab Alam. The Court traced the law relating
to death penalty in India since the pronouncement in Bachan Singh case. The two factors which
weighted with the court in commuting the death penalty into life imprisonment in the present
case can be divided into two categories: Jurisprudential aspect and the factual matrix aspect
(peculiar facts of the case). It would be relevant here to discuss these factors especially the
jurisprudential aspect as this case has set a very strong precedent for alternative sentencing to
death penalty in India. The court, in the course of delivering the judgment, pointed out the
deficiency in criminal justice administration of the country and said that merely because many of
the culprits of murder either escapes the death penalty or escapes the criminal justice
administration altogether does not mean that court should confirm the death penalty awarded to
the convict merely because he/she happens to be before the court. The court said that there is
hardly any field of comparison between those cases where although the convict deserves death
penalty but was not so awarded due to error of judgment on the part of the trial court and the
High Court and those cases where the culprits were sent to the gallows. The court while pointing
towards its own responsibility, as the highest appellate court of the country, said that it should be
extremely wary in dealing with death sentence and should resort to it only when the other
alternative is unquestionably foreclosed. The court reminded that extreme caution is required in
awarding death penalty due to its irrevocable nature. Then, the court referred to its earlier
judgment in Aloke Nath Dutta case, where the court made a comparative analysis of cases
wherein death sentence was awarded with those cases wherein the death sentence was not
awarded although the factual matrix of those cases were not so varied as far as aggravating and
mitigating circumstances are concerned so as to justify life imprisonment in one and death in
other. Acknowledging the inconsistency in death penalty case, the Court said in Para 31 of the
Judgment: “…Coupled with the deficiency of the Criminal Justice System is the lack of
inconsistency in the sentencing process even by this court. It is noted above that Bachan Singh
laid down the principle of the rarest of rare cases. Machhi Singh, for practical application
crystallized the principle into five definite categories of cases of murder and in doing so also
considerably enlarged the scope for imposing death penalty. But, unfortunate reality is that in

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later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were
followed uniformly and consistently.”

In Para 33 of the Judgment, the court said that the truth of the matter is that the question of death
penalty is not free from the subjective element and the confirmation of death sentence or its
commutation by this court depends a good deal on the personal predilection of the judges
constituting the Bench.

Expressing the serious concern over inconsistency, the court made a very important observation
in Para 34 of the Judgment. The Court said, “The inability of the Criminal Justice administration
to deal with all major crimes equally, effectively and the want of uniformity in the sentencing
process by the Court lead to a marked imbalance in the end results. On the one hand there
appears a small band of cases in which the murder convict is sent to the gallows on confirmation
of his death penalty by this Court and on the other hand there is much wider area of cases in
which the offender committing murder of a similar or a far more revolting kind is spared his life
due to lack of consistency by the court in giving punishments or worse the offender is allowed to
slip away unpunished on account of the deficiencies in the criminal justice System. Thus, the
overall larger pictures get asymmetric and lop-sided and present a poor reflection of the systems
of criminal administration of justice. This situation is a matter of concern for the court and needs
to be remedied.”

And then the Court said that these are some of the larger issues that make it feel reluctant in
confirming the death penalty of the appellant.

While coming to the facts (factual matrix) of the case which weighted with the court in
commuting the death penalty into life imprisonment, the court said that it is undeniable that
appellant committed the murder in a planned and cold blooded manner but at least this much can
be said in his favour that he devised the plan in such a manner that so that the victim could not
know till the end and even for a moment that she was betrayed by the one she trusted most.
Further, the court said that though the killing appears quite ghastly, it may be said that it did not
cause any mental or physical pain to the victim. Then, the fact that accused confessed his guilt
partially before the High Court was also considered as a factor in commuting the death into life
imprisonment. However, the court also said that it is not to be opined that the crime committed

125
by the appellant was not grave or the motive behind the crime was not highly depraved. While
coming to the sentencing aspect 74, the court discussed the entire law relating to remission and
said that the sentence of imprisonment for a term of 14 years that goes under the euphemism of
life imprisonment is not at all acceptable in those cases where the death penalty is commuted into
life imprisonment. The court said, “The answer lies in breaking this standardization that, in
practice, renders the sentence of life imprisonment equal to imprisonment for a period of no
more than 14 years; in making clear that that the sentence of life imprisonment when awarded as
a substitute for death penalty would be carried out strictly as directed by the Court. This Court,
therefore, must lay down a good and sound legal basis for putting the punishment of
imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be
carried out as directed by this Court but also by the High Courts, being the Superior Courts in
their respective states.” Then, the Court quoted the following observation of three judges Bench
in Dalbir Singh vs. State of Punjab75to the effect that, “The sentences of death in the present
appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in
Rajinder Prasad case. Taking the cue from the English legislation on abolition, we may suggest
that life imprisonment which strictly means imprisonment for the whole of the men’s life but in
practice amounts to incarceration for a period between 10 and 14 years may, at the option of the
convicting court, be subject to the condition that the sentence of imprisonment shall last as long
as the life lasts, where there are exceptional indications of murderous recidivism and the
community cannot run the risk of the convict being at large. This takes care of judicial
apprehensions that unless physically liquidated the culprit may at some remote time repeat
murder.” Thus, Dalbir Singh Judgment, which had already paved the way for alternative
sentencing in the form of incarceration till the end of the life which almost remained dormant for
three decades, was brought to the limelight in the Swamy Shraddananda case. Prior to Swamy
Shraddananda case, the Supreme Court awarded the punishment of life imprisonment till the end
of the life in a 2001 judgment of Subhash Chandra v. Krishan Lal and Others76and in another
case of Jayawant Dattatraya Suryarao vs. State of Maharashtra Case. 77 In Subhash Chandra
case, there was a gruesome murder of three members of the family with the intention of

74
Please refer to the Court’s observation in Swamy Shraddananda which I have mentioned in the beginning of this
Chapter in which court justified and gave the reason for alternative sentencing in death penalty cases.
75
A.I.R 1979 S.C. 1384 (India).
76
2001 Cri LJ 1825.
77
A.I.R 2002 S.C 143 (India).

126
eliminating the entire family because two members of the family were prosecution witness in an
earlier case of murder against the main accused who had allegedly killed the son of the appellant.
The trial court awarded the death penalty to the eleven accused including the main accused i.e.
Krishna Lal (respondent in the present case). On appeal by the accused persons and reference
made by the trial court, the High Court commuted the death penalty of the four accused and
acquitted seven accused persons. The appellant, the aggrieved party, contended before the
Supreme Court that the High Court was not justified in commuting the death sentence and
awarding of life imprisonment. The appellant contended that the case in hand falls under “Rarest
of Rare Case” and the accused persons deserve no less than death penalty. The High Court has
not awarded death sentence for the reason that some of the accused persons were acquitted. It
was contended on behalf of the appellant that mere fact that some of the accused persons were
acquitted that cannot be made the ground for converting the death penalty into life imprisonment.
The crime was committed in a most diabolical manner on the helpless sleeping members of the
family and the intention was to eliminate the entire family members and hence the accused
deserves no less than death penalty. The Supreme Court, on appeal, observed that the High
Court, while commuting the death penalty, have completely ignored the yardstick to be adopted
for awarding death penalty. The court said that merely because few accused persons (seven in
this case) were acquitted, that by itself cannot be termed to be a justified ground for commuting
the death penalty of the rest of the accused whose guilt was proved beyond reasonable doubt.
The court said that the High Court was not justified in commuting the sentence of death to at
least one main accused i.e. Krishan Lal. However, the court accepted the submission of the
Learned Counsel for the respondent and observed, “…Upon instruction, the learned Senior
Counsel submitted that the said Krishan Lal (Respondent and the main accused in the case), if
sentenced to life imprisonment would never claim his premature release or commutation of his
sentence on any ground.” The court accepted the submission made by the Learned Counsel for
the respondent and held as follows, “However, in the peculiar circumstances of the case,
apprehending imminent danger to the life of Subhash Chandra and his family in future, taking on
record the statement on behalf of Krishan Lal, we are inclined to hold that for him the
imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be
entitled to any commutation or premature release under the provisions of the Criminal
Procedure Code, Prisoners Act, Jail Manual or any other statute and the rules made for the

127
purposes of grant of commutation and remissions.” However, in Subhash Chandra case, there
was no reference made to the 1979 judgment of the Supreme Court in Dalbir Singh case.
Another case in line is Jayawant Dattatraya Suryarao vs. State of Maharashtra (Popularly
known as J.J Hospital shoot out case). The brief facts of the case are that the appellants along
with a number of other co-accused armed with highly sophisticated weapons had raided J.J
Hospital in Mumbai where the victim, who was the member of the rival underworld gang, was
undergoing treatment. The appellants went to the hospital and made indiscriminate firing, killing
not only the main victim but also two policemen who were on guard duty and injuring several
others. The Supreme Court confirmed the conviction of the appellant i.e. Jayawant Dattatraya but
modified the sentence from death penalty to imprisonment for the rest of his life. The main
accused in this case was appellant No 6 who was awarded sentence of death on two counts i.e.
one under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985
(TADA) and the other under Section 120 B of the Indian Penal Code (Punishment for criminal
conspiracy). The Supreme Court refused to accept the contention of the counsel for the appellant
that it was simply a case of gang rivalry and held that it was an act of terrorism. The court said,
“Shoot out at the J. J. Hospital, which is a Government Hospital of 1500 beds in Mumbai, at
midnight causing death of three persons and injuries to six others was, in the facts of the present
case, nothing but an act of terrorism. It cannot be termed as simple act of gang rivalry.” The
court referred to Subhash Chandra case wherein it was held that a sentence of imprisonment for
life does not automatically expires at the end of 20 years including the remission. The Court in
Para 67 of the Judgment said, “In this case also, considering the heinous act of terrorism and
brutal murder of two police constables who were on duty to guard Shaliesh Haldankar (member
of the rival gang who was killed in the shootout), even though we hold that this would not be a
fit case for imposing death sentence, we direct that accused will not be entitled to any
commutation or pre-mature release under Section 433A of Criminal Procedure Code, Prisoners
Act, Jail Manual or any other statue and the rules made for the purpose of commutation and
remission.” In this context, it would be very pertinent to note the observation made by the
Supreme Court in Swamy Shraddananda case in Para 28 of the Judgment: “A careful reading of
the Machhi Singh categories will make it clear that the classification was made looking at
murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was
relatively free from organized and professional crime. Abduction for ransom and Gang Rape and

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murders committed in course of those offences were yet to become a menace for the society
compelling the Legislature to create special slots for those offences in the Penal Code. At the
time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack
on the country’s parliament. There were no bombs planted by the terrorists killing completely
innocent people, men, women and children in dozens with sickening frequency. There were no
private armies. There was no mafia cornering huge government contracts purely by muscle
power. There were no reports of killings of social activists and whistle blowers. There were no
reports of custodial deaths and rape and fake encounters by police or even by armed forces.
These developments would unquestionably find a more pronounced reflection in any
classification if one were to be made today.” Thus, the court intended to say that new form of
crimes i.e. organized crimes, terrorism, naxalism, and other form of violent crimes which was
hitherto absent in 1980s has become a serious menace to the society in the twenty first century
and to deal with it, requires a new approach towards sentencing. Post Swamy Shraddananda
case, the life imprisonment till the end of the life was awarded in Sebastian v. State of Kerala,
which was a case of rape and murder of two year old child by the appellant whom the court
declared to be a pedophile with extreme violent propensities as was evident from his previous
conviction on several occasions for sexual offences. The appellant was sentenced to death by the
trial court and on appeal and reference made by the trial court, the award of death sentence was
confirmed by the High Court of Kerala. On appeal, the Supreme Court, relying on Swamy
Shraddananda case, commuted the death sentence into life imprisonment with the condition that
he shall remain in jail for the rest of his life. From this case onwards, the principle laid down in
Swamy Shraddananda case was followed with full enthusiasm which resulted in a number of
cases in which court commuting the death penalty either into life imprisonment till the end of the
life or awarding fixed term life imprisonment.

3.2.3 FIXED TERM LIFE IMPRISONMENT: (20 YEARS, 25 YEARS, 30 YEARS, 35

YEARS…): The fixed term life imprisonment has also emerged as one of the alternative
sentencing to death penalty where the court awards fixed term life imprisonment i.e. 20,25,30,35
years etc. in capital punishment cases instead of awarding life imprisonment till the end of the
life. This modern trend is visible in the last few years in response to the emergence of alternative
sentencing in death penalty cases. It would be pertinent here to discuss some cases on the various

129
fixed term life sentencing in order to better appreciate the current scenario of alternative
sentencing.

3.2.3.1 35 YEARS OF IMPRISONMENT

HARU GHOSH V. STATE OF WEST BENGAL78

Haru Ghosh is the very first case where the Supreme Court had awarded 35 years imprisonment
to the murder convict by resorting to alternative sentencing. In this case, the appellant was
convicted for committing two murders: one of a woman of 30 years of age and another of her
child of about 12 years of age. He was also tried for the offences under Section 307 and 326 of
the Indian Penal Code for attempting to murder another person aged about 60 years. The motive
for the dastardly act was that the accused used to sell liquor and most of the persons residing in
the locality including the husband of the deceased used to constantly ask him not to sell the
liquor. The constant resistance on the part of the residents of the locality enraged him and as a
consequence of which he committed the brutal act. It was also brought before the notice of the
court that the appellant had already been undergoing the sentence of life imprisonment in an
earlier case and was out of jail on bail. However, his appeal against conviction was pending
before the Calcutta High Court. The trial court convicted the accused for murder and sentenced
him to death. This was confirmed by the Calcutta High Court. The appeal was preferred to the
Supreme Court. Relying on few mitigating circumstances such that it was not a case of pre-
meditated cold blooded murder and also that although he was not justified in selling liquor but he
and his family was surviving on that, the Court commuted the death penalty into life
imprisonment. Following the course adopted by the Supreme Court in Swamy Shraddananda
case, the court sentenced the appellant to 35 years of imprisonment without any right to
remission.

RAJ KUMAR V. STATE OF MADHYA PRADESH79

Raj Kumar is another case where the Supreme Court imposed 35 years imprisonment on the
convict. In this case, the convict committed rape and murder of a girl of 14 years of age. While
committing rape, he caused some grievous injuries which resulted in the death of the deceased.

78
2009 (15) S.C.C. 551 (India).
79
(2014) 5 S.C.C. 353 (India).

130
The trial court imposed the death sentence and on reference, the High Court confirmed the death
penalty. The convict appealed to the Supreme Court. The Supreme Court held that in spite of the
fact that appellant had committed heinous crime and raped an innocent, helpless and defenceless
minor girl, the case is not fit for awarding death as it does not fall within the category of rarest of
rare cases. Relying on Swamy Shraddananda case, the court awarded 35 years imprisonment to
the appellant without the right to remission.

3.2.3.2 30 YEARS IMPRISONMENT

NEEL KUMAR @ ANIL KUMAR V. STATE OF HARYANA80

Neel Kumar is the 2012 judgment of the Supreme Court where the court awarded 30 years life
imprisonment to the appellant Neel Kumar for committing rape and murder of his own four year
old daughter. The trial court had convicted the accused under Sections 302, 376 (2) (f) and 201
of the Indian Penal Code and sentenced him to death penalty for the offence of murder. On
reference being made by the trial Court to the High Court and on appeal being preferred by the
appellant, the High Court also confirmed the death penalty. However, the apex court was of the
view that the case does not fall within rarest of rare case. The court, however, took note of the
fact that considering the nature of the offence, age and relationship of the victim with the
appellant and the grave injuries caused to a four year old child, appellant cannot be awarded a
lenient punishment. Relying on Swami Shraddananda case, the court awarded 30 years jail term
to the convict without remission.

SANDEEP V. STATE OF UP81

Barely four days after this judgment, came another judgment of the Supreme Court i.e. Sandeep
v. State of UP wherein again the court awarded 30 years life imprisonment to the appellant
Sandeep and the co-accused for having killed the deceased as she did not abort the foetus which
was fathered by the appellant. On the fateful day, he took the deceased in his car after having
made preparation for killing her by purchasing four blades and a bottle of acid. While she once
again refused to abort the foetus, the appellant started beating her and caused severe injuries to
her by pouring the acid over her as well as also by inflicting injuries upon her by the use of

80
(2012) 5 S.C.C. 766 (India).
81
(2012) 6 S.C.C. 107 (India).

131
blades. They threw her at a sugarcane field. However, the police arrived on the scene and the
deceased was admitted to the hospital. However, soon thereafter, she died. The trial court
sentenced the appellant and the co-accused to death by holding that the case fell within the rarest
of rare case. On reference, the High court confirmed the death penalty of the appellant and
commuted the death sentence of the co-accused into life imprisonment. The appellant preferred
appeal to the Supreme Court against the award of death penalty. The Supreme Court took the
view that case of the accused does not fall within rarest of rare case. However, considering the
plight of the deceased, the manner in which her life was taken away by causing multiple injuries
all over the body with all kinds of weapons, the court held that no leniency can be shown to the
appellant and awarded him the sentence of life for a fixed term of 30 years without any remission
to be allowed.

GURVAIL SINGH AND OTHERS V. STATE OF PUNJAB82

Next in line is the case of Gurvail Singh where the court resorted to alternative sentencing. The
case pertains to land disputes in which four members of the family were brutally murdered by the
main accused Gurvail Singh along with other co-accused. The trial court awarded death to the
main appellant Gurvail Singh. The Punjab and Haryana High Court confirmed the death sentence
of the main appellant. Before the Supreme Court, the State argued that appellant deserves no
mercy as he was instrumental in killing four persons. However, the Supreme Court enlisted few
mitigating circumstances such as the age of the appellant, possibility of reform/rehabilitation of
the appellant and held that he cannot be awarded death sentence. Laying down the new standard
for awarding death, the Supreme Court held that to award death sentence, the aggravating
circumstances (crime test) have to be fully satisfied and there should not be any mitigating
circumstances (criminal test) favouring the accused. 83 Even if both the tests are satisfied, the
Court has to finally apply the Rarest of Rare test which depends upon the perception of the
society and not of the judge, that is, whether the society will approve the awarding of death
sentence to certain types of crimes or not. The court further said that while applying this test, the
court has to look into variety of factors like society’s abhorrence, extreme indignation and
antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually

82
(2013) 2 S.C.C. 713 (India).
83
Please refer to my discussion in second chapter regarding R-R test propounded by Supreme Court in Shankar
Kishan Rao Khade case.

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challenged minor girls, minor girls with physical disability, old and infirm women with those
disabilities, etc. (examples are only illustrative and not exhaustive). Elaborating on the new
concept of awarding death penalty, the court further said that courts award death sentence
because situation demands due to constitutional compulsions, reflected by the will of the people
and hence the award of death should not be judge centric. On the facts of the case, the court said
that extreme penalty of death cannot be awarded to the appellant. The young age of the accused
and possibility of reform were two mitigating circumstances which had gone into the mind of the
court in not awarding death penalty. However, following the Swamy Shraddananda approach,
the court said that the appellants must serve a minimum of 30 years in jail without remission.

MOHAMMAD JAMILUDDIN NASIR V. STATE OF WEST BENGAL84

Another case in line is Mohammad Jamiluddin Nasir where the court awarded 30 years
imprisonment to the main appellant Jamiluddin without any right of remission. This was a case
of terrorist attack on American Centre in Calcutta in the year 2002. The attack was planned by
the terrorist organization called Lashkar-e-Taiba having its base in Pakistan and was executed by
Pakistani and Indian nationals who were members of the banned organization. Five police
personnel lost their lives and thirteen people were seriously injured. Both the main appellants
were sentenced to death under Sections 121 (Waging or attempting to wage war against the
Government of India) and 302 of the IPC. On appeal and reference, the High Court acquitted few
more accused while confirming the death penalty of the appellants. An appeal was made to the
Supreme Court. The Supreme Court said that the following fundamental principles to be borne in
mind while dealing with the sentence to be imposed in respect of brutal crimes:

 Every sentence awarded must have twin objectives: Deterrence and Correction.
 The Court should consider social interest and consciousness of the society for awarding
appropriate punishment.
 Seriousness of the crime and the criminal history of the accused is yet another factor.
 Graver the offence and longer the criminal record, it should result severity in punishment.
 Undue sympathy to impose inadequate sentence would do more harm to the public.

84
A.I.R 2014 S.C. 2587 (India).

133
  Imposition of inadequate sentence would undermine the public confidence in the efficacy
of the law and society cannot endure such threats.85
The Court also laid down the guidelines for sentencing in those cases where charge under
Section 121 (Waging war against the Government of India) was involved. Coming to the facts of
the case, the Court said that although the crime appears horrendous, the appellants does not
deserve death sentence. The court distinguished this case from the Ajmal Kasab case86 (Mumbai
Attack case), Afzal Guru case87 (Parliament Attack case) and Mohammad Arif case88 (Red Fort
Attack case). The court sentenced the appellant Aftab to imprisonment for the rest of his life and
appellant Nasir to life imprisonment for a minimum period of 30 years without any right of
remission.

ALBER ORAON V. STATE OF JHARKHAND89

In this case, the appellant committed murder of a woman and her two children with the sole
motive of grabbing her house. In the course of investigation the highly decomposed bodies of the
three deceased persons were discovered and exhumed from the soak-pit next to the toilet of the
home of the deceased. The appellant was also living with the deceased in the same house at the
material point of time. The trial court and the High Court having awarded death, the appellant
made appeal to the Supreme Court. The Supreme commuted death and by resorting to alternative

85
See Para 153 of the Jamiluddin Nasir Judgement. The Court also referred to passage from Ratanlal & Dhirajlal's
Law of Crimes, 26th Edition to the effect that Sentencing is a delicate task requiring an interdisciplinary approach
and calls for special skills and talents. A proper sentence is the amalgam of many factors, such as, the nature of
offence, circumstances-extenuating or aggravating-of the offence, prior criminal record of the offender, age and
background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental
condition, the prospects for his rehabilitation etc. (See Para 151 of the Jamiluddin Nasir Judgment). The Court also
quoted the principles of sentencing laid down in Alister Anthony Pareira v. State of Maharashtra (A.I.R 2012 S.C.
3802 (India). In Para 70 and 71 of the Alister case, the Supreme Court held that Sentencing is an important task in
the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and
proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is
done. There is no straitjacket formula for sentencing an accused on proof of crime. The Courts have evolved certain
principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the
ends of justice depends on the facts and circumstances of each case and the Court must keep in mind the gravity of
the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of
proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law,
proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-
doer. The Court has to take into consideration all aspects including social interest and consciousness of the society
for award of appropriate sentence.
86
(2012) 9 S.C.C. 1 India).
87
A.I.R. 2005 SC 3820 (India).
88
(2011) 13 S.C.C. 621 (India).
89
A.I.R 2014 S.C. 3202 (India).

134
sentencing, sentenced the appellant to incarceration for a further period of 30 years without
remission, in addition to the sentence already undergone by the appellant.

AMAR SINGH YADAV V. STATE OF U.P90

In this case, the appellant was married to the deceased and had four children. There was personal
acrimony between the appellant and his wife due to the fact that appellant was having illicit
relationship with two women. Due to such illicit relationship, the deceased wife got half of the
salary of the appellant deducted for meeting family expenses. Enraged at this, the appellant was
determined to cause the death of his wife and his four children. On the fateful day, the appellant
locked the wife and his four children inside the van and sprinkled the petrol from outside and
then set the van ablaze. Due to this ghastly act, the appellant’s wife and his two daughters lost
life. For the offence of murder, the appellant was sentenced to death. The High Court having
confirmed the death sentence, the appellant made appeal to the Supreme Court. On the ground
that there are chances of reform, the Supreme court commuted the death into life but on the
ground that appellant shall remain in jail for a period of 30 years without any remission.

ANIL @ ANTHONY ARIKSWAMY JOSEPH V. STATE OF MAHARASHTRA91

In this case, the appellant committed murder of a minor boy aged ten years after subjecting him
to carnal intercourse. The trial court sentenced the appellant to death and the High Court
confirmed it. The appellant made appeal to the Supreme Court. The Supreme Court observed that
murder was committed in extremely brutal, grotesque, diabolical and dastardly manner. The
Supreme Court applied the R-R test as evolved by the court in Shankar Kishan Rao Khade92 case
and held that the test is fully satisfied on the present facts. However, the court held that
imprisonment of a further period of 30 years, without remission, in addition to the sentence
already undergone, will be an adequate punishment in the facts and circumstances of the case
rather than death sentence.

3.2.3.3 25 YEARS OF IMPRISONMENT

90
A.I.R 2014 S.C. 2486 (India).
91
(2014) 4 S.C.C. 69 (India).
92
For detail on this aspect, please refer to my second chapter.

135
DILIP PREMANARAYAN TIWARI V. STATE OF MAHARASHTRA93

This was a case of honour killing in which the Supreme Court awarded 25 years imprisonment to
the main appellant Dilip Premanarayan Tiwari. On facts, the trial court had awarded death and
the High Court confirmed it. When the matter went to the apex court, the question was what
sentence to be awarded to the accused persons. The High Court had listed several aggravating
circumstances against the accused persons. However, no mitigating circumstances were listed by
the High Court inspite of the fact that the trial court has listed some mitigating circumstances in
its judgment. The apex court took into account some mitigating circumstances such as the young
age of the accused. The court also considered the anger emanating from inters caste marriage as
one of the mitigating circumstances. The court said that the murders were the outcome of social
issues like a marriage with a person of the so called lower caste. The court was of the view that
these are the relevant factors while commuting the death sentence. The caste is a concept which
grips a person before his birth and does not leave him even after his death. The vicious grip of
the caste, community, religion, though totally unjustified, is a stark reality, the court said. The
disturbed mental feeling on the part of the main accused due to the fact that her sister married a
person from so called lower caste led to the crime of murder, the court said. The court cited the
case of Om Prakash v. State of Haryana94wherein it was held that disturbed mental feeling or the
constant feeling of injustice was a mitigating circumstance in favour of the accused. Thus, the
court commuted the death penalty into life imprisonment. However, the court said that in the
peculiar circumstances of the case, mere life imprisonment which in practice amounts to 14 years
of imprisonment may not be adequate punishment for these accused persons. The court
sentenced both the main accused persons to life imprisonment with the direction that they shall
not be released unless they complete 25 years of actual imprisonment.

TATTU LODHI V. STATE OF MP95

In this case, the appellant was found guilty of committing the murder of a minor girl, aged about
seven years and also of kidnapping and attempt to commit rape on her and for destruction of
evidence relating to the crime. For the offence of murder, the trial court sentenced him to death

93
(2010) 1 S.C.C.775 (India).
94
(1999) 3 S.C.C. 19 (India).
95
A.I.R. 2016 S.C. 4295 (India).

136
which was confirmed by the High Court. The Supreme Court held that considering the fact that
there may be possibilities of appellant committing the crime in future if he is awarded life
imprisonment simplicitor, the imprisonment of 25 years shall be appropriate punishment in the
facts and circumstance of the case.

3.2.3.4 21 YEARS OF IMPRISONMENT

RAMNARESH AND OTHERS V. STATE OF CHATTISGARH96

Ramnaresh is one of the cases where the court has awarded 21 years of imprisonment by
resorting to alternate sentencing. The brief facts of the case are that the appellants, four in
number, committed rape upon a woman and she died as a consequence of strangulation while the
act of rape was being committed upon her. The trial court and on reference and appeal, the High
Court confirmed the death sentence. As a last resort, the appellants preferred appeal to the
Supreme Court. The Supreme Court held that the case does not fall within “rarest of rare case”
and commuted the death sentence into life imprisonment on three grounds i.e. no criminal
background of the appellants, possibility of reform, and the death of the deceased occurring
accidentally. As far as quantum of punishment was concerned, the court awarded 21 years
imprisonment without right to remission.

BRAJENDRA SINGH V. STATE OF MADHYA PRADESH97

Brajendra is another case where the court imposed the life imprisonment for a term of 21 years.
It was a case where appellant killed his wife and three minor children as he suspected the fidelity
of his wife. He also tried to commit suicide but was caught by the police and brought to police
station. The court observed that whatever be the extent of his anger, revenge or frustration, he
could have been kind to his own children and spared their lives. Coming to the quantum of
sentence, the court said that the case of the accused does not fall within rarest of rare case.
Taking into account few mitigating circumstances i.e. the act was not pre-planned, there was no
motive, it was committed out of suspicion and frustration and took place on the spur of the
moment, the court said that after drawing the balance sheet of aggravating and mitigating
circumstances, there is no hesitation in coming to the conclusion that this is not a case where this

96
(2012) 4 S.C.C. 257 (India).
97
A.I.R 2012 S.C. 1552 (India).

137
court ought to impose extreme penalty of death upon the accused. As far as quantum of sentence
is concerned, the court said, “….we commute the death sentence awarded to the accused to one
of life imprisonment (21 years).”

3.2.3.5 20 YEARS OF IMPRISONMENT

There are some cases where the court has imposed 20 years of imprisonment by resorting to
alternate sentencing although some of it pertains to the period before Swamy Shraddananda case.

PRAKASH DHAWAL KHAIRNAR V. STATE OF MAHARASHTRA98

Prakash was a case of property dispute i.e. partition of agricultural land between the two brothers
which led the appellant to kill entire family of his brother as well as his mother. Six people lost
their life due to fire arm injuries committed by the appellant. The trial court and the High Court
sentenced him to death. The apex court accepted the contention of the counsel for the appellant
that these murders were committed out of sheer frustration when his brother was not partitioning
the agricultural land and also that the appellant was not having a criminal background and there
was possibility of reform and rehabilitation. The Supreme Court set aside the death sentence and
directed that for murders committed by him, he shall serve at least 20 years of imprisonment
including the period already undergone by him.

SHRI BHAGWAN V. STATE OF RAJASTHAN99

Next case in line is Shri Bhagwan. In this case, the appellant put to death five members of a
family and robbed the various articles from the house including the golden jewellery as the
family was preparing for the marriage of their eldest daughter. He was convicted on various
counts including for the offence of murder. The trial court sentenced him to death. On appeal, the
the Rajasthan High Court confirmed the conviction and sentence of death. The matter went to the
Supreme Court. The court referred to the case of Dalbir Singh and discussed the law relating to
remission and directed that death sentence be commuted to life imprisonment with the condition
that the appellant shall not be released from jail unless he served at least 20 years of
imprisonment including the period already undergone by the appellant.

98
(2002) 2 S.C.C.35 (India).
99
(2001) 6 S.C.C. 296 (India).

138
RAM ANUP SINGH AND OTHERS V. STATE OF BIHAR100

Ram Anup Singh is another case where the Supreme Court awarded 20 years of imprisonment
without right to remission. In this case, the main appellant Ram Anup along with others was
convicted for four murders. The appellant annihilated the entire family of his own brother which
included his brother, brother’s wife, and brother’s only daughter and brother’s son in law due to
some property dispute. The disputed property was gifted by the deceased to his only daughter
and son-in law which enraged the appellant. The trial court convicted all the three appellants and
sentenced them to death. The High Court, on reference, sentenced the other two appellants to
death and commuted the death sentence into life imprisonment of the main appellant, Ram Anup
Singh. All the three appellants preferred appeal to the Supreme Court against their conviction.
The Supreme Court refused to interfere with the sentencing order of the main appellant, Ram
Anup Singh. However, the court taking the lead from Dalbir Singh case commuted the death
penalty of the other two appellants into rigorous imprisonment for life with the condition that
they shall not be released before completing the actual term of 20 years including the period
already undergone by him.

RAMRAJ V. STATE OF CHHATTISGARH101.

Ramraj is another case where the Supreme Court awarded 20 years of imprisonment. This was a
case of quarrel between the appellant and his wife, the deceased. According to the prosecution,
the deceased and the appellant had quarrelled in the evening and in the night on hearing the cries
of the child, when appellant tied to wake her up, she did not wake up. As a result, appellant
assaulted her with a stick causing severe internal and external injuries as a result of which the
victim died. The trial court took note of the fact that the conduct of the petitioner in not reporting
the matter to the police and instead buried the body of the victim was an attempt to shield
himself of the offence and additionally convicted him under Section 201 of the IPC. Against the
conviction of the High Court, the appellant moved to the Supreme Court. The apex court
dismissed the Special Leave Petition filed by the appellant with the direction that it is not a fit
case where the petitioner should be released on completion of 14 years of imprisonment.
Resorting to alternate sentencing, the court said that the petitioner’s case for premature release

100
(2002)6 S.C.C. 686 (India).
101
(2010) 1 S.C.C. 573 (India).

139
may be taken up by the concerned authorities only after he completes 20 years of imprisonment
including the remission earned.

SAHIB HUSSAIN V. STATE OF RAJASTHAN102

In this case, the appellant killed five persons including three children due to some scuffle
between him and the deceased on the day of Eid. There was no eye witness to the incident.
However, the trial court, relying on circumstantial evidence, sentenced him to death under
Section 302 of the IPC. On appeal and reference, the High Court commuted the death sentence
into life imprisonment with the direction that he shall not be released from the prison until he
serves 20 years of imprisonment including the period already undergone and shall not be entitled
to any remission by the Government. Aggrieved by the order of the High Court, the appellant
preferred appeal to the Supreme Court. The Supreme Court discussed the law relating to
remission and affirmed the observation made in Swamy Shraddananda case as far as alternate
sentencing is concerned to the effect that reasonable and proper course would be to expand the
option between 14 years imprisonment and death. On the facts, the Supreme Court upheld the
judgment of the High Court i.e. 20 years imprisonment without remission and dismissed the
appeal.

ASHOK DEBBARMA @ ACHAKDEBBARMA V. STATE OF TRIPURA103

This case was an unfortunate outcome of constant conflict between indigenous people and the
minority settlers in the state of Tripura. In the present case the appellant, belonging to an
extremist tribal group, was charged for the horrific incident in which around fifteen people lost
the life and many were left injured and around 23 houses were blazed. The court agreed with the
fact that crime was committed in a brutal manner. However, the court also took note of the fact
that the present incident was due to the fact that tribal communities felt marginalized and ignored
by the mainstream society and possibly such frustration and anger might have led to the present
incident in which fifteen people lost their lives. The court also noted the fact that entire incident
could not have been committed by the appellant alone. Taking into account the totality of the
circumstance, the court held that the case did not fall under “Rarest of Rare” case. Applying the

102
(2013) 9 S.C.C. 778 (India).
103
(2014) 4 S.C.C. 747 (India).

140
principle of alternative sentencing as laid down in Swamy Shraddananda case, the court awarded
the term of imprisonment of 20 years without remission over and above the period already
undergone by the appellant.

BIRJU V. STATE OF M.P104

In this case, the appellant was convicted for shooting dead an infant child of one years of age
when his demand for Rs 100for purchasing liquor was not met by the person who was holding
the deceased child. The court took note of the fact that there were 24 criminal cases pending
against the accused. However, the court held that the case is not fit for awarding death penalty.
Applying the principle laid down in Swamy Shraddananda case, the court awarded 20 years
rigorous imprisonment without the right to remission beyond the period already undergone by
the appellant.

NAZIR KHAN AND ORS. V. STATE OF DELHI105

This case is prior to the judgment of Swamy Shraddananda case where the Supreme Court
resorted to alternative sentencing. In this case, the appellants were the terrorists belonging to the
terrorist organization called Hizbul Mujahedeen. The appellants were involved in the act of
kidnapping of foreign nationals in India and making them hostages to various places in India so
that they can pressurize the Government of India to release some of the dreaded terrorists
confined in several jails across India. Considering the totality of the circumstances and the
various enactments under which they were charged including under Terrorist and Disruptive
Activities (Prevention) Act, and Indian Penal Code, the Supreme Court awarded the life
imprisonment of 20 years without any right to remission.

3.3 HIGH COURT USING ALTERNATIVE SENTENCING: The trend of

alternative sentencing which was expressly approved by the Supreme Court in Swamy
Shraddananda case has now been followed by the High Courts also. The Kerala High Court in
the case of State of Kerala v. Navas@Mula Navas106applied the alternative sentencing while
commuting death penalty into life in a case of multiple murders. The brief facts of the case are

104
A.I.R 2014 S.C. 1504 (India).
105
A.I.R 2003 S.C. 4427 (India).
106
Criminal Appeal No 1620 out of 2007 (Decided on 09/02/2010).

141
that the accused committed murder of four members of a family which included a lady, her
husband, their daughter of 11 years of age, and her mother in law aged about 80 years. The
reason behind such dastardly act was that accused was in illicit intimate relationship with the
woman and wanted to marry her. Seeing no response, he took the extreme step. The trial court
awarded death sentence to the convict. On appeal and reference, the High Court commuted death
into life and deriving inspiration from Swamy Shraddananda case awarded 30 years
imprisonment. While dealing with the issue of sentence, the court said that before imposing
death, the courts must be satisfied that the lesser options available must be unquestionably
foreclosed. In Para 46 of the judgment, the court made a crucial observation to the effect that
judges dealing with this sublime area of criminal adjudication can neither be retentionists nor
abolitionists. Subject to the law as declared in Bachan Singh case and subsequent decisions, the
court will have to consider all available circumstances without importing individual and personal
concepts of the need to retain death sentence or abolish the same. On the question of inadequacy
of sentencing under Section 302 of the IPC, the court concurred with the approach adopted by
three judge Bench in Swamy Shraddananda case in which the court talked about capturing the
vast hiatus between 14 years and death. In Para 49, the court said that in devising or inventing
such a mode of graver sentence above the ordinary term of imprisonment for life but below the
sentence of death, the court has realistically found that insistence on imposition of death penalty
can be further reduced. The court in Swamy case has in fact increased the alternative option
available, the court said. The only alternative option prior to Swamy case was a sentence of life
without any rider. The courts are now given the option to suitably modulate and prescribe the
manner in which a life sentence can and ought to be executed. The court said that by increasing
the options under Section 302 of the IPC by the apex court in Swamy Shraddananda case, the
abolitionists have won a major battle in the war against death sentence as now with this new
sentencing trend the death penalty will be used as little as possible. However, adding a new
dimension to the entire issue, the court in Para 50 of the judgment made a crucial observation
that even after devising of alternative sentencing in Swamy Shraddananda case, there are only
two sentences permissible under Section 302 of the IPC. The courts have no option to impose
any other sentence. The court said that Swamy Shraddananda case only permits the imposition of
a sentence of imprisonment for life with the rider that the accused shall not be released from
prison invoking the jurisdiction for commutation/remission under the relevant statutes for a

142
specified number of years or for the rest of the life. Swamy Shraddananda case, the court said,
does not permit courts to impose a sentence of imprisonment for any specified number of years
above 14 years. Thus, what the court intend to say is that any sentence imposed beyond fourteen
years should be taken as amounting to embargo on the remission/commutation power of the
government under the relevant statutes and it does not amount to devising new sentencing
beyond fourteen years (fixed term sentencing i.e. 25,30, 35 years) as devising new sentencing is
not permissible.

In Para 53, the court said that with the enlarging of alternative sentencing in Swamy
Shraddananda case, the “rarest of rare cases” has become “rarest of rarest of rare cases” and
there is always a space for narrow category of cases in which the courts can award death if the
option is unquestionably foreclosed. The court said that all courts called upon to choose between
the sentence of death and the alternative options now available can impose death sentence only
when all the alternatives available (including those devised in Swamy Shraddananda case) is
unquestionably foreclosed.

On the question of personal subjectivity of the judges and Benches, the court, in Para 57 of the
judgment, said that courts at all level will have to ensure that subjectivity is eliminated altogether
while choosing to impose or not choosing to impose the death sentence. Life is such a precious
commodity and the Constitution cherishes the human right of right to life so much that personal
prejudices and predilections of the individual judges have to be eliminated completely in the
decision to judicially terminate and liquidate life. There cannot be benches that are pro death and
anti-death sentences, the court said. Of all the arguments against the retention of death sentence,
none is more effective and disturbing than the thought that the choice between life and death may
depend upon the personal attitude and vagaries of the judges before whom the case comes up.
On the facts and circumstances of the case, the court awarded 30 years imprisonment to the
accused.

STATE V. BHARAT KUMAR107

In this case, the appellant was convicted for rape and murder of a child of six years of age.
Giving different categorization of sexual offenders, the Delhi High Court noted in para 45 of the

107
217 (2015) DLT 453 (India).

143
judgment that the sexual offenders can be classified as criminal sexual psychopaths who are least
dangerous, sexually dangerous persons and dangerous and violent sexual predators and offenders
who lack empathy and remorse. The first category does not inflict any physical pain on the
victim, the second category while perpetrating the crime cause grotesque suffering in the victim
and the last category causes not only grotesque suffering in the victim but even defiles the victim
after the crime. 108 The court said that the appellant falls in the second category that not only
perpetrated crime but caused grotesque suffering on the victim by raping a minor girl of tender
age of 6 years and thereafter committing her murder by smashing her head with a stone. The
court said that the appellant is sexually dangerous person and not a dangerous sexual predator.
Hence, the solution to the present case is not by removing appellant from the earth but guarding
the society against him so that he does not act dangerously to other innocent lives, the court said.
Applying the principle laid down in Swamy Shraddananda case, the Delhi High court awarded
25 years imprisonment to the appellant without any right to remission.

VIKAS YADAV AND ORS. V. STATE OF U.P. AND ORS.109

In this case, the appellants were convicted for the offences under Sections 302, 364 and 201 of
the Indian Penal Code. The deceased was abducted and brutally murdered. The case was of
honour killing. The trial court awarded life imprisonment simplicitor (14 years if remission
allowed) to the appellant. The appeal by prosecution was for enhancement of the sentence i.e.
death penalty. The question before the Delhi High Court was whether the appellants deserve
death penalty taking into account the totality of the circumstance. The Delhi High Court
elaborately discussed different dimensions pertaining to the case including the legality of
alternative sentencing devised by the Supreme Court in Swamy Shraddananda case. Agreeing
with the rationale behind alternative sentencing, the High Court awarded 25 and 20 years
respectively to the appellants.110

STATE V. SURENDER111

108
On the classification of sexual offenders, the Delhi High Court made reference to its earlier judgment of State vs.
Ravi Kumar &Ors(Death Reference 1/2014 decided on August 26, 2014).
109
MANU/DE/0294/2015 (India).
110
This Judgment is of 572 Pages covering various aspects pertaining to the case. The Delhi High Court has
elaborately discussed various judgments of the Supreme Court on death penalty and alternative sentencing.
111
214 (2014) DLT 437 (India).

144
In this case, the appellants were convicted for offences of voluntarily causing hurt in committing
robbery and murder under Sections 394 and 302 of the Indian Penal Code. The act involved
multiple murders and it was a pre-planned and pre-meditated act. The Delhi High Court noted
that the manner of killing was extremely brutal, grotesque, diabolic and revolting. Further,
mental and physical sufferings were inflicted on the deceased before the death. After committing
the murders, the convicts robbed cash and jewellery belonging to the victims and the appellants
showed no remorse for the dastardly act. However, the High Court said that no material was
placed to show that there was no possibility of reform. Following the principle laid down in
Swamy Shraddananda case, the court awarded imprisonment for a term of 25 years without any
right to remission.

STATE V. OM PRAKASH112

This was a case of honour killing as the deceased persons, who wanted to get married belonged
to the different castes- a scenario which was objected to by deceased girl’s family. The accused
persons were convicted of the offences under Sections 302, 323 and 34 of the Indian Penal Code
and were sentenced to death by the trial court. On reference being made by the state and the
appeal being preferred by the appellants, the Delhi High Court, adopting the approach laid down
in Swamy Shraddananda case, awarded 20 years imprisonment to two of the appellants without
the right to remission. The court said that the end of justice would be met if the appellants were
awarded 20 years imprisonment without the right to remission.

3.4 CONSEQUENCES OF ALTERNATIVE SENTENCING TO DEATH

PENALTY: Due to devising of alternative sentencing by the apex court, two important
consequences may be felt. These are:

 Narrowing down of Rarest of Rare Test.

 Expansion of the Options (widening of range of sentence under Section 302 of the IPC).
3.4.1 NARROWING DOWN OF RAREST OF RARE TEST: The rarest of rare doctrine was
propounded by the Supreme Court in Bachan Singh case in 1980 wherein the court laid down the
principle that life imprisonment shall be the rule and death penalty an exception which can be
awarded only in the rarest of rare cases. In the recent years, due to devising of alternative
112
2014 SCC Online Del 1511 (India).

145
sentencing, the doctrine has been narrowed down to “very rarest of rare test” as pointed out by
the Kerala High Court in Navas Mulla case. This was also the line of thinking in Swamy
Shraddananda case where the court said that the inherent advantage of alternative sentencing
would be to have death penalty on the statute book but to use it as little as possible. The court
also said that this approach will be in consonance with the modern penalogical trend.

3.4.2 EXPANDING OF THE SENTENCING OPTIONS: One inevitable consequence of

devising alternative sentencing is the widening of sentencing options under Section 302 of the
IPC. Now, the available sentencing options to the courts under section 302 of the IPC are:

Option: 1) Life imprisonment (Remission Power of the Government not affected).

Option: 2) Death.
Option: 3) Life Imprisonment till the end of the life (option for Remission closed).
Option: 4) a) Consecutive Life Imprisonment (in case two or more homicides or other serious
offences carrying life imprisonment are involved) i.e. Double Consecutive Life Imprisonment,
Triple Consecutive Life Imprisonment and so on. Now, this can no longer hold true due to the
Constitution Bench judgment in Muthuramalingam case.
b) Or else, awarding any other sentencing along with Life Sentencing with the direction that both
shall run consecutively. 113 However, in this scenario, first the fixed term shall be undergone and
then the life imprisonment shall be undergone by the convict following the principles laid down
in Muthuramalingam judgment.
Option: 5) Fixed Term Life Imprisonment. Some of the judicially recognized Fixed Terms are:
a) 20 years Life Imprisonment.
b) 21 years Life Imprisonment.
c) 25 Years Life Imprisonment.
d) 30 Years Life Imprisonment.
e) 35 Years Life Imprisonment.
In future, there is a possibility that more fixed term sentencing can be added to the above
mentioned category.

113
See Muthuramalingam Judgment.

146
3.5 FACTORS IMPELLING THE DEVISING OF ALTERNATIVE
SENTENCING TO DEATH PENALTY: As mentioned above, some of the factors
which impelled the court to devise alternative sentencing are the followings:

 Court recognition of sentencing disparity in death penalty cases in India which have
restrained court from awarding death penalty as death is irrevocable (court has become
hesitant).
 Court recognition of Inadequacy of the sentencing in murder cases which provides for
either death or life Imprisonment simplicitor (Section 302 of the IPC).
However, some other factors and developments can also be said to be influential in devising
alternative sentencing by Indian judiciary. These are:

 Influence of worldwide death penalty abolitionist movement.

 Evolving Constitutionalism.
 Human Rights of the accused.
 Retributive Justice.

3.5.1 COURT RECOGNITION OF SENTENCING DISPARITY IN JUDICIAL

ADMINISTRATION OF DEATH PENALTY: As far as sentencing disparity in death penalty
is concerned, I have dealt with the issue in the second chapter. Please refer to it.

3.5.3 INADEQUACY OF SENTENCING IN DEATH CASES: For the offence of murder,

the punishment prescribed under Section 302 of the IPC is death or life imprisonment. The court
is perplexed in those cases where although the case does not fall within Rarest of Rare Test yet
the justice of the case requires that convict should not be let off with life imprisonment
simplicitor (in practice 14 years). In Swamy Shraddananda case, the Supreme Court said, “If the
Court’s option is confined to only two punishments for the offence of murder, the court may be
tempted to give death penalty to the accused.” 114 The three Judge Bench in this case observed
that no two cases are identical. There are countless permutations and combinations which are
beyond the anticipatory capacity of the human calculus and that the standardization of the

114
See Para 92 of the Swamy Shraddananda Judgment.

147
sentencing process tends to sacrifice justice at the altar of blind uniformity. The court then
proceed on to say that there may be a case in which death penalty has been awarded by the trial
court and confirmed by the High Court and when it comes to the Supreme Court by way of
appeal, the court may find that that case falls short of rarest of rare category and may feel
somewhat reluctant in endorsing the death penalty. But at the same time, having regard to the
nature of the crime, the court may strongly feel that a sentence of life imprisonment subject to
remission that normally works out for a term of 14 years would be grossly disproportionate and
inadequate. What then the Court should do? The court, then justifying alternative forms of life
imprisonment, said that if the court’s option is limited only to two punishments, one a sentence
of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the
Court may feel tempted and finds itself nudged into indorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and proper course would be to expand
the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast
hiatus between 14 years imprisonment and death. The court stressed that it would take recourse
to the expanded option primarily because on the facts of the case, the sentence of 14 years
imprisonment would amount to no punishment at all.

In Haru Ghosh case, while dealing with the sentencing aspect, the Supreme Court held as under
in Para 43 and 44 of the Judgment:

“That leaves us with a question as to what sentence should be passed. Ordinarily, it would be
the imprisonment for life. However, that would be no punishment to the Appellant/accused, as he
is already under the shadow of sentence of imprisonment for life, though he has been bailed out
by the High Court. Under the circumstance, in our opinion, it will be better to take the course
taken by this Court in the case of Swamy Shraddananda (cited supra), where the Court referred
to the hiatus between the death sentence on one part and the life imprisonment, which actually
might come to 14 years' imprisonment. In that case, the Court observed that the convict must not
be released from the prison for rest of his life or for the actual term, as specified in the order, as
the case may be. We do not propose to send the Appellant/accused for the rest of his life;
however, we observe that the life imprisonment in case of the Appellant/accused shall not be less
than 35 years of actual jail sentence, meaning thereby, the Appellant/accused would have to
remain in jail for minimum 35 years.”

148
However, as mentioned above, prior to Swamy Shraddananda case, the Supreme Court in Dalbir
Singh case had considered the question of length of incarceration in those cases where death
penalty is commuted into life imprisonment and made a very crucial observation which can be
said to be have been picked up by the Supreme Court later in Swamy Shraddananda case. The
Supreme Court in Dalbir Singh case said in Para 14 of the Judgment, “…. the life imprisonment
which in practice amounts to incarceration for a period between 10 and 14 years may, at the
option of the convicting court, be subject to the condition that the sentence of imprisonment shall
last as long as life lasts, where there are exceptional indications of murderous recidivism and the
community cannot run the risk of the convict being at large. This takes care of judicial
apprehension that unless physically liquidated the culprit may at some remote time repeat
murder.” The Dalbir Singh judgment just came before the celebrated Constitution Bench
judgment of the Supreme Court in Bachan Singh case.

3.5.3 ABOLITIONIST MOVEMENT WORLDWIDE TREND: In the last quarter of a

century, the international human rights standards have evolved towards abolition of death
penalty and as a result of which great progress has been made towards global movement for
abolition of death penalty for all crimes and in all circumstances. 115 The pace and extent to which
so many countries have abolished death has given force to the international abolitionist
movement and as a result the matter of death no longer remain the sole concern of a nation which
it can justify on the ground of national security or on the ground of law and order problems. 116
Obviously, it can never be argued that the national security of an abolitionist country is less
important than the retentionist country. The argument for abolition of death penalty is not
connected with the national security or issue of law and order but with the larger human rights
issues which constitute the core justification for its abolition. 117 Those states that continue to
form an opinion that death is a criminal justice issue and hence solely domestic are shrinking into
minority. 118 On the contrary, the majority of the nations which have abolished death consider it
as an issue of fundamental human rights connected with the human dignity and basic right to life

115
ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND
PUBLIC OPINION 44 (Oxford University Press); See Saul Lehrfreund, “The Impact and Importance of International
Human Rights Standards: Asia in World Perspective” appearing in the Book.
116
supranote 115, at 49.
117
supra note 115, at 54.
118
ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY-A WORLDWIDE PERSPECTIVE 17 (Oxford University
Press).

149
which is an inherent right of every human being. The global movement now aims at persuading
the retentionists that howsoever administered, the imposition of death fundamentally violates
universally accepted human rights, namely, the right not to be arbitrarily deprived of life and
right not to be subjected to cruel, inhuman or degrading punishment or treatment. 119

On 18 December 2007, the United Nations General Assembly passed Resolution Number 62/149
calling for a worldwide moratorium on executions. 120 The resolution was adopted by a majority
of 104 United Nations members to 54 countries against it. Five years later, the same resolution
was supported by 111 UN members to 41 countries against it. This growing support for the
resolution at the United Nations General Assembly provides the evidence of increasing support
for abolition of death penalty. As of April 2014, out of total 197 countries, 99 countries have
abolished the death penalty for all crimes and in all circumstances and have thus become
completely abolitionists. 121There are another 52 countries which, although retentionist on the
statute book, have become abolitionist de facto. These countries have refrained from carrying out
any executions in the last ten years and so are regarded as abolitionist de facto by the United
Nations. 122 The trend towards global abolition becomes clearly visible when we compare the
April 2014 figure (mentioned above) with the December 1988 figure (25 years before). As of
December 1988, only 35 countries were complete abolitionist and only 27 countries were
retentionist but abolitionist de facto. 25 years later, the story is different and it clearly indicates
significant progress made in global movement towards abolition of the capital punishment.123
Further, the International Criminal Court (ICC) set up to deal with the crime against humanity
under Rome Statute does not include death as one of its punishments. Interestingly, it also does
not include life imprisonment without the possibility of parole (LWOP) as one of its punishments
and provides for review of all sentences after certain period of sentencing. 124 The death penalty
was also not available for genocide, crimes against humanity and war crimes to the International

119
supranote 115, at 19.
120
supra note 115, at 23.
121
supra note 115, at 24. As per the latest data, 170 States around the world have either abolished the death penalty
and put a moratorium on its use –most recently, Gambia and Madagascar and that executions in 2016 were down 37
per cent compared in 2015. For detail please see:
http://www.un.org/apps/news/story.asp?NewsID=57848#.WnKSka6WbIU (Date of access: 1/02/2018).
122
supra note 115, at 25.
123
ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY-A WORLDWIDE PERSPECTIVE (5th ed. Oxford University
Press). For detail please see Chapter, “The Pace of Abolition” of the Book
124
Supra note 123.

150
Criminal Tribunals set up to deal with the atrocities in former Yugoslavia in 1993 and Rwanda in
1994. 125 Not having death for the gravest of crimes like crimes against humanity create
justificatory problems for the retentionist countries. They are constantly faced with the question:
If death is not available for the gravest of crimes like crimes against humanity, then how it could
be justified for lesser crimes like murder or drug trafficking? Further, the International Covenant
on Civil and Political Right (ICCPR) in its Article 6(6) goes on to say that “Nothing in this
Article shall be invoked to delay or to prevent the abolition of capital punishment by any State
Party to the Present Covenant”, thus reflecting the abolitionist goal. However Article 6 (2) of the
ICCPR has mandated death penalty (for those countries which have not abolished death) for the
most serious crimes in accordance with the law in force at the time of the commission of the
offence and not contrary to the present Covenant. The United Nations Human Rights Committee
(UNHRC) in their general comment on Article 6 of the ICCPR has stated that Article 6(6) refers
generally to the abolition of death in terms which strongly suggest that abolition is desirable. 126
The worldwide movement towards abolition of the death penalty reveals that the majority of the
United Nations member states have accepted their obligations under Article 6 of the ICCPR
towards abolition of the death penalty. 127 As far as European Nations are concerned, it has been
the policy of the members of the Council of Europe since 1994 and of the European Union since
1998 that new member states must abolish death in their domestic jurisdiction as a condition of
their admission into the organizations. Further, all the members of the Council of Europe (except
for Russia) have either de facto or de jure, abolished the death penalty for all crimes and in all
circumstances. The European Court of Human Rights (ECHR) in its decision of Al-Saadoon and
Mufdhi v. United Kingdom128held the imposition of death penalty to be contrary to the European
Convention on Human Rights despite the fact that Article 2(1) of the Convention contemplates
death penalty as an exception to the right to life. The ECHR held that the punishment of death
amounts to cruel, inhuman and degrading punishment and thus violative of Article 3 of the
European Convention which prohibits cruel, inhuman and degrading punishment. The court tried
to reconcile the language of Article 2(1) by saying that the Convention was drafted 60 years ago

125
ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND
PUBLIC OPINION 44 (Oxford University Press); See Saul Lehrfreund, “The Impact and Importance of International
Human Rights Standards: Asia in World Perspective” appearing in the Book.
126
General Comment 6 on Article 6 of the ICCPR adopted on 27 July 1982.
127
supra note 115, at 26.
128
(Council of Europe, European Court of Human Rights, Application No 61498/08, 2 March 2010).

151
and since then there has been a global movement towards abolition of death penalty, in law and
practice, within all 47 Council of Europe member states which is evidenced by the fact that all
but two Convention States had signed Protocol No 13. 129 The court took the view that this
change in state practices demonstrates that Article 2 had been impliedly amended (or abrogated
as we can say) so as to prohibit death penalty under all circumstances. Thus, Al-Saadoon is one
such case where the court had gone beyond the express language of the Convention in order to
reflect the current reality.

Further, in those nations where the capital punishment still holds ground, the International
human rights standard obligates them to publish all the data concerning execution thus signifying
that execution is no more a secret affair. The United Nations Economic and Social Council
(ECOSOC) has called for the publication of such information and United Nations Special
Rapporteur on Extrajudicial, Summary or Arbitrary executions has stigmatized those states that
have failed to do so on the ground of violation of human rights. In its Resolution No 1989/64,
adopted on 24th May, 1989, the United Nations Economic and Social Council has urged the UN
member states to publish information such as the categories of offences for which death penalty
is authorized, the number of persons sentenced to death, the number of executions actually
carried out, the number of persons under sentence of death, the number of death sentences
reversed or commuted on appeal and the number of instances in which the clemency was
granted. 130 Further, the United Nations Human Rights Committee has called upon the state
parties to the ICCPR to provide information on the use of death penalty including the number of
death sentences imposed over the past 10 years, the types of offences for which death sentence
has been imposed, the number of executions carried out, the manner of execution and the identity
of the prisoners executed.131 Thus, publication of data and information concerning death penalty
has become an integral part of the International Human Rights standards. In the meantime, the
pro-abolitionists have also focused attention on those crimes which attract death. As mentioned
above, Article 6(2) of the ICCPR has reserved death for the ‘most serious crimes’. There is a
growing voice that phrase ‘most serious crimes’ should be interpreted as narrowly as possible

129
The Protocol No 13 deals with abolition of death penalty and was adopted in the year 2002. Armenia, Latvia and
Poland have signed but not ratified Protocol No 13, and Azerbaijan and Russia have neither signed nor ratified
(ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND PUBLIC
OPINION 28 (Oxford University Press).
130
supra note 115, at 30.
131
supra note 115.

152
and should not be awarded for those crimes where there is no loss of human life such as drug
trafficking or economic crimes.132 The position that the drug related offences do not fall into the
category of the ‘most serious crimes’ is shared by the UNHRC and United Nations Office on
Drugs and Crime. 133

3.5.3.1 THE ROLE OF JUDICIARY IN HARMONIZING DOMESTIC LAW WITH

INTERNATIONAL HUMAN RIGHTS OBLIGATIONS: The Indian judiciary is interpreting
the domestic law in consonance with international law especially in the area of human rights law
due to its progressive development at international level. The rich human rights jurisprudence at
international level makes it the ready reference materials for the Constitutional courts at the
national level. Further, in the era of globalization and liberalization, it is nearly impossible for
the constitutional courts of the nations to remain aloof from development at the international
level especially when the nation states are increasingly become party to multilateral international
treaties. There is an increasing tendency for the national courts to adopt international human
rights norms in domestic constitutional jurisprudence. 134 In some cases, domestic laws that do
not comply with the international human rights norms have been invalidated. 135 These trends
have been particularly visible in Caribbean and African nations where domestic courts have
sought to interpret constitutional human rights provisions consistently with the international
human rights standards, thereby integrating contemporary international norms into domestic
legal system. 136

3.5.3.2 MANDATORY DEATH SENTENCE AS VIOLATION OF HUMAN RIGHTS: As

per the current United Nations Human Rights Committee, mandatory imposition of death penalty
violates Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) as it
amounts to arbitrary deprivation of life as death is imposed without taking into account
offender’s personal circumstances or the circumstances of the crime. Further, the offence of
murder may have a varying degree of seriousness and it would be absurd to treat all the cases of

132
supra note 115, at 32.
133
supra note 115.
134
supra note 115.
135
supra note 115.
136
supra note 115, at 33.

153
murder with the same gravity. In India, Section 303 137 of the IPC was declared unconstitutional
by the Supreme Court on the ground that by providing for mandatory death penalty for murder
committed by life convict, it excludes judicial wisdom. 138 In a very recent case of State of Punjab
v. Dalbir Singh 139 , the Supreme Court declared Section 27(3) 140 of the Arms Act, 1959
unconstitutional on the ground that it provides for mandatory death sentence. This approach as
regards the mandatory death penalty was also adopted by the Inter-American Commission on
Human Rights. The same approach was also followed by a number of Constitutional Courts in
Africa. For instance, the Constitutional Court of Uganda in Kigula v. Attorney General141 held
that various provisions of Ugandan law prescribing mandatory death penalty for various offences
were incompatible with the Constitution of Uganda. This view of Constitutional Court was
affirmed by the Supreme Court of Uganda in Attorney-General v. Kigula. 142 The Judicial

137
Section 303 of the IPC (now declared unconstitutional in Mithu v. State of Punjab (A.I.R. 1983 S.C. 473 (India)
case) dealt with punishment for murder by life convicts. It says that whoever, being under sentence of imprisonment
for life, commits murder, shall be punished with death.
138
Regarding mandatory death sentence, the Supreme Court said in Rajesh v. State, (2011) 13 S.C.C. 706 ( India)
that opposing mandatory death sentence, United Nations in its interim report to the General Assembly in 2000
advanced the following opinion: The proper application of human rights law-especially of its provision that 'no one
shall be arbitrarily deprived of his life' and that 'no one shall be subjected to....cruel, inhuman or
degrading....punishment' - requires weighing factors that will not be taken into account in the process of determining
whether a defendant is guilty of committing a 'most serious crime'. As a result, these factors can only be taken into
account in the context of individualized sentencing by the judiciary in death penalty case (See Para 104 of the
Rajesh Judgment).
139
(2012) 3 S.C.C. 346 (India).
140
Section 27(3) of the Arms Act, 1959 says “whoever uses any prohibited arms or prohibited ammunition or does
any act in contravention of section 7 and such use or act results in the death of any other person shall be punishable
with death.” A Bench of Justice A.K. Ganguly and J.S. Kehar said that a law which is not inconsistent with the
notions of fairness while it imposes an irreversible death penalty like death is repugnant to the concept of right and
reason. The Bench further said, “In fact, the challenge to the constitutional validity of [the] death penalty under
Section 302 of the Indian Penal Code has been negatived in the ‘Bachan Singh case' in view of the sentencing
structure in Sections 235 (2) and 354 (3) of the Criminal Procedure Code. By imposing mandatory death penalty,
Section 27 (3) of the Arms Act runs contrary to those statutory safeguards which give [the] judiciary the discretion
in the matter imposing [the] death penalty. Section 27(3) of the Arms Act is thus ultra vires the concept of judicial
review, which is one of the basic features of our Constitution.” The Bench held that Section 27(3) of the Arms Act is
violative of Articles 14 and 21 of the Constitution of India.
Source:http://www.thehindu.com/news/national/supreme-court-strikes-down-arms-act-provision-for-mandatory-
death-penalty/article2851338.ece( 2/02/2012) ; accessed on 20/01/2016.
141
Constitutional Petition No 6 of 2003 (2005). In this case, the petitions were brought under Article 137(3) of the
Constitution of Republic of Uganda through which 417 petitioners (including Kigula) contended that provision of
laws which provides for mandatory death sentence was violative of various provisions (including Article 22(1) of
the Constitution of Uganda which provides for right to life and Article 24 which says that no one shall be subjected
to any form of torture, cruel, inhuman or degrading punishment or treatment. (For detail please
see:http://www.ulii.org/ug/judgment/constitutional-court/2005/8-0 ; accessed on 20/01/2016.
142
(2008)UGSC 15. The Supreme Court, in an appeal, voted unanimously, upheld the death penalty per se but
strikes down the mandatory death sentence for murder and delay on death row. Source:
http://mckinneylaw.iu.edu/iiclr/pdf/vol22p267.pdf (accessed on 20/01/2016).

154
Committee of the Privy Council also adopted the same approach in Reyes v. Queen143 and held
that the imposition of mandatory death sentence was inhuman and degrading. In doing so, the
Judicial Committee of the Privy Council construed the domestic law in conformity with the
international human rights norms. 144 This approach has also been adopted by the Court of Appeal
of Malawi in Twoboy Jacob v The Republic145 and most recently by the Court of Appeal of
Kenya in Mutiso v. The Republic. 146The same conclusion was reached by the High Court of
Bangladesh in Bangladesh Legal Aid and Services Trust v. Bangladesh (Shukat Ali)147, where the
Bangladesh High Court declared unconstitutional Section 6(2) of the Women and Children
Repression Prevention (Special) Act, 1995 which provided for the mandatory death sentence for
those convicted of killing a women or child after rape. The High Court of Bangladesh adopted
the reasoning of the Judicial Committee of the Privy Council in Reyes v. Queen 148 and also
affirmed the Bangladesh’s obligations under International Covenant on Civil and Political
Rights. There has developed the jurisprudence that mandatory death penalty violates the right to
fair trial. This was so held in Twoboy Jacob v.The Republic149in which the Court of Appeal of

143
(2002) 2 AC 235 (UK). In this case, the Judicial Committee of the Privy Council held that it was unconstitutional
in Belize (a British colony on the eastern coast of Central America) to impose death sentence for the offence of
murder. The Privy Council took the view that since the Constitution of Belize prohibits inhuman or degrading
punishment, the trial court must have the jurisdiction to impose lesser penalty than death if the circumstances of the
case so require. In this decision, the Privy Council did not distinguish between nations; it held that wherever the
provisions for mandatory death penalty exist, it is unconstitutional as it deprives the court from appreciating
mitigating circumstances of the case. This judgment became seminal and gradually extended to most of the
Caribbean nations.
144
(2002) 2 AC 235 at Para 28 (ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN ASIA:
HUMAN RIGHTS, POLITICS AND PUBLIC OPINION 37-38 (Oxford University Press).
145
Criminal Appeal Case No 18 of 2006, Judgment of 19 July, 2007.
146
Criminal Appeal No 17 of 2008, Judgment of 30 July 2010 ROGER HOOD AND SURYA DEVA, CONFRONTING
CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND PUBLIC OPINION 40 (Oxford University Press). On 30th
July, 2010, the Kenyan Court of Appeal in its decision of Mutiso declared the mandatory death sentence for murder
unconstitutional. In this case, the appellant Mutiso was convicted for a premeditated murder involving a dispute over
petty larceny.
147
(2010) 30 BLD 194 (High Court of Bangladesh). In this case, a writ petition was filed by the Bangladesh Legal
Aid and Services Trust (BLAST) and the convict by name Sukur Ali who was given capital punishment for rape and
murder under Section 6(2) of the Women and Children Repression (Special Provisions) Act, 1995 Act. The Bench
comprising justice Md Iman Ali and Justice Sheikh Abdul Awal, while striking Section 6(2) of the Act, held that
whatever be the nature of crimes, death penalty cannot be the only punishment for the criminals. The Bench said that
circumstantial condition and credibility of evidences must be taken into account while awarding punishment. The
discretion of the judges get adversely affected if the death is the onlypunishment as in such scenario various facts
and circumstances of the case having bearing on the case will become irrelevant. Source:
http://www.blast.org.bd/news/153-deathpenalty ; accessed on 20/01/2016.
148
Supra note 144.
149
Criminal Appeal Case No 18 of 2006 (ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN
ASIA: HUMAN RIGHTS, POLITICS AND PUBLIC OPINION 41(Oxford University Press). The Constitutional court of
Malawi has declared the mandatory death penalty unconstitutional in an earlier case of Kafantayeni v. Attorney

155
Malawi held that the right to fair trial also includes the aspect of sentencing and the mandatory
death penalty for murder violates the right to fair trial under the constitution of Malawi. The
reason being is that the mandatory death sentence prevents the offender from adducing evidence
in mitigation and precludes the court from judicial examination and determination of sentence.150
Due to these criticisms of mandatory death penalty for certain offences, the Government of
Singapore announced in Parliament in July 2012 that new laws would be drafted to abolish the
mandatory imposition of the death penalty for certain category of drug trafficking offences and
151
some homicidal offences. All these judgments demonstrate the significant influence
international human rights jurisprudence has on the interpretations given to domestic laws by the
national constitutional courts.

3.5.3.3. INFLUENCE ON INDIA: All these developments at international level have had a
significant bearing on the Indian judiciary also. In the 2014 judgment of National Legal Services
Authority v. Union of India152, the Supreme Court of India said, “Any international convention
not inconsistent with the fundamental rights and in harmony with its spirit must be read into
those provisions i.e. Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and
content thereof and to promote the object of Constitutional guarantee.” 153 Much before this

General (2007 MWHC). Under Malawi Penal Code, five offences carry death penalty i.e. treason, rape, murder,
robbery and burglary. However, the death penalty was only mandatory for murder. The Malawi Constitutional Court
held that lack of sentencing discretion may result in infliction of death penalty on the defendants whose case does
not warrant death. The Constitutional Court found the Privy Council decision in Reyes v. Queen (2002 AC) to be of
great persuasive value. Several months later, the Supreme Court of Appeal of Malawi upheld the decision in
Kafantayeni in the case of Jacob v. Republic. Source: http://mckinneylaw.iu.edu/iiclr/pdf/vol22p267.pdf (accessed
on 22/01/2016).
150
supra note 149.
151
supra note 115, at 42.
152
A.I.R. 2014 S.C. 1863(India). The case pertains to constitutional and other legal rights of transgender community
and their gender identity and sexual orientation. The Court said that by recognizing such transgender as third gender,
they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition.
The issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach
towards transgender which may focus on functioning as an interaction between a person and their environment
highlighting the role of society and changing the stigma attached to them, the court said.
153
See Para 53 of the Judgment. The Court also said in the same para that if the Parliament has made any legislation
which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather
than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect
the rules of international law. The Court referred to Vishaka and others vs. State of Rajasthan and Others ((1997) 6
S.C.C. 241(India) wherein the Supreme Court exercising its powers under Article 141 of the Constitution of India
lays down various guidelines to prevent sexual harassment at work place to enable gender equality relying on
Articles 11, 24 and general recommendations 22, 23 and 24 of the Convention on the Elimination of All Forms of
Discrimination against Women.

156
judgment, Justice Khanna in his dissenting opinion in A.D.M Jabalpur v. Shukla154while holding
that Article 21 of the Constitution of India cannot be suspended even during emergency observed
that if there was inevitable conflict between international law and municipal law, then the latter
shall prevail. But if two constructions are possible then the court should give that construction as
might bring harmony between the municipal law and international law. It would be pertinent
here to recall Article 51 of the Constitution of India, which among other things, says that state
shall endeavour to foster respect for international law and treaty obligations in dealing of people
with one another. Vishaka is a landmark judgment in this aspect. 155

The growing abolitionist mindset at international level has a bearing on the Indian judiciary also.
In Swamy Shraddananda case, while evolving the alternative sentencing and advocating the
capture of the vast hiatus between 14 years imprisonment and death, the court said that it will be
in consonance with the modern penological trend, impliedly referring to worldwide movement
on abolition of death penalty. Surya Deva in his article “Death Penalty in the ‘Rarest of Rare’
Cases: A Critique of judicial Choice –making”156 analyzed 86 judgments of the Supreme Court
delivered between 1st January, 2000 and 10 October 2011 on the issue of death penalty (either
confirming or non-confirming death). While noticing the judicial inconsistency, he found that out
of the 86 judgments, Justice S B Sinha was part of the Bench in 10 cases and he did not award
death penalty even in a single case although the cases related to a range of crimes such as rape
and murder, multiple murder of the family members, dowry death etc. This abolitionist mindset
has also penetrated into the office of Law Commission of India, a body which was established by
an executive order and empowered to recommend legislative reforms with a view to clarify,
consolidate and codify particular branches of law where the government felt the necessity for it.
The 262nd Report of the 20th Law Commission of India which recommended abolition of death

154
A.I.R. 1976 S.C. 1207 (India).
155
Vishaka and others vs. State of Rajasthan and Others (A.I.R. 1997 S.C. 3011(India)). The Supreme Court in
Vishaka case said, “In the absence of domestic law occupying the field, to formulate effective measures to check the
evil of sexual harassment of working women at all work places, the contents of International Conventions and norms
are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity
in Articles 14 15 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.
Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be
read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for
implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List
in Seventh Schedule of the Constitution” ( See Para 7 of the Vishaka Judgment).
156
ROGER HOOD AND SURYA DEVA, CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND
PUBLIC OPINION (Oxford University Press).

157
penalty was chaired by Justice A.P Shah, former Chief Justice of Delhi High Court. In his
August 2012 interview to The Times of India 157 , when he was asked whether he personally
believes that India should join the growing number of nations abolishing death sentence
altogether. Answering in the affirmative, he said, “India should join such nations as there is
enough reason to believe that the legal safeguards aimed at avoiding a miscarriage of capital
punishment have failed to deliver. Public opinion in India can no longer ignore the global
movement in favour of abolition of the death penalty. A total of 130 out of 192 UN member states
have abolished the death penalty in law or practice - India is one of the countries that retains the
death penalty but rarely executes people. It's time we accept that capital punishment neither has
any deterrent effect, nor can it be counted as a preventive measure.” The very next month in
September 2012, he took over as Chairman of Law Commission of India, thus carrying his
abolitionist mindset into the Commission’s office. Hence, on the question of abolition of death,
Commission’s recommendation in its 262nd report was obvious as a person with abolitionist
mindset was heading it. Could it be said that the recommendation of the Law Commission would
have been otherwise if it was headed by Judges 158 like Justice Markandey Katju or Justice
Pasayat who are considered to be of retentionist mindset?159 The Law Commission of India got
the opportunity to look at the matter due to the observation of the Supreme Court in its two
judgments. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra160emphasizing on
the need for an empirical research into the issue of death penalty as to whether it serves any
penological purpose or not, the Supreme Court said that a credible research needs to be done
either by the National Human Rights Commission or Law Commission on the subject. The same
was the concern raised in Shankar Kisanrao Khade v. State of Maharashtra161in which Justice
Radhakrishanan bringing the executive into the picture said that though the courts have been
applying the rarest of rare principle, the executive has taken into consideration some factors not

157
Article-“Justice A P Shah: India should join nations abolishing the death sentence”;
http://timesofindia.indiatimes.com/interviews/Justice-A-P-Shah-India-should-join-nations-abolishing-the-death-
sentence/articleshow/15906225.cms(29/08/2012); accessed on 20/01/2016.
158
In all cases of Honour Killing, Justice Katju awarded death penalty; Source: http://www.livelaw.in/justice-
speaking-bhullar-case-is-not-rarest-of-rare-says-justice-k-t-thomas/ accessed on 20/01/2016). As per Surya Deva
research into the subject (refer to his article titled: Death Penalty in the ‘Rarest of Rare’ Cases: A Critique of
judicial Choice –making”) Justice Pasayat was part of the Bench in 15 cases and out of these 15 cases, he awarded
the death penalty in 12 cases even in those cases where the lower courts had passed the order of acquittal.
159
I would like to clarify that there is no intention whatsoever to cause doubt on the professionalism of the Law
Commission of India.
160
(2009) 6 S.C.C. 498 (India).
161
(2013) 5 S.C.C. 546 (India).

158
known to the court for converting death sentence into life imprisonment. He said that death
penalty and its execution should not become a matter of uncertainty nor should converting a
death into imprisonment for life become a matter of chance. He suggested that Law Commission
of India can do a research on the subject to find out as to whether death is a deterrent punishment
or is a reflection of retributive justice or serves an incapacitative goal. In both the judgments, the
court noted the progress achieved in the world wide movement towards abolition of death
penalty. These two judgments of the court prompted the Law Commission of India to conduct
research on the subject and the result was 262nd Report of the Commission on death penalty. The
main reason advanced by the Law Commission of India in its 262 nd Report for abolition of death
penalty is that death does not have deterrent effect. This is in sharp contrast to the Law
Commission’s 35th Report in 1967 wherein it was held that deterrent is the most important object
not only of capital punishment but also of punishment in general. The Commission in its 262 nd
Report cited number of research studies wherein it was shown that death does not have deterrent
effect on the potential offenders. It also cited the reports of the United Nations as well as 1953
UK Royal Commission on Death Penalty to the effect that there is no clear evidence of the
deterrent effect of the death penalty on the potential offenders. The Commission, however,
recommended death in cases of terrorist attacks and waging war against the Government of India
as it concerns the national security. However, it may be pertinent here to note that Law
Commission’s recommendation on abolition of death penalty is not unanimous. 162

Coming back to the judicial trend, there is constant pressure on the judiciary to strike down death
penalty as unconstitutional. This can be evident from the fact that although the Bachan Singh
judgment in 1980 categorically held the death penalty to be constitutional, from time to time, its
constitutionality was again challenged before the apex court. In 1983, in Deena v. Union of
India 163 , constitutionality of death sentence was challenged in addition to the argument that
execution by hanging is barbaric. The court in Deena rejected both the arguments. Again, in
1991 judgment of Shashi Nayar v. Union of India164, constitutionality of death was challenged.

162
Out of 9 members, three have dissented. Justice (Retired) Usha Mehra, Mr. P.K. Malhotra, Law secretary and Dr.
Sanjay Singh, Secretary, Legislative Department, Ex-officio member did not sign the Report.
163
(1983) 2 S.C.C. 277 (India).
164
(1992) 1 S.C.C. 96 (India). In Shashi Nayar case, the Court said that the death penalty has a deterrent effect and it
does serve a social purpose. The majority opinion in Bachan Singh's case (supra) held that having regard to the
social conditions in our country the stage was not ripe for taking a risk of abolishing it. No material has been placed
before us to show that the view taken in Bachan Singh's case (supra) requires reconsideration. Further, a judicial

159
However, the court refused to look into the issue in the light of deteriorating law and order
situation in the country. The court said that the time was not right for looking into the issue thus
implying that in future it might consider the issue depending upon the totality of the
circumstances prevailing then. At times, the severe critic of rarest of rare doctrine by the pro-
abolitionists and human rights activists has prompted the court to defend its test of rarest of rare
cases by resorting to international standards. In its 2013 judgment of Rajesh Kumar v. State
through NCT of Delhi165the court observed: “The ratio in Bachan Singh has received approval
by the international legal community and has been very favourably referred to by David Pannick
in Judicial Review of the Death Penalty: Duckworth (see pp. 104-05). Roger Hood and Carolyn
Hoyle in their treatise on The Death Penalty, 4th Edn. (Oxford) have also very much appreciated
the Bachan Singh ratio (see p. 285). The concept of "rarest of rare" which has been evolved in
Bachan Singh by this Court is also the internationally accepted standard in cases of death
penalty.”166

But the question is whether apex court has de-facto adopted abolitionist trend in view of the
present international development. The answer is no. There are some recent judgments wherein
the Supreme Court has upheld the death penalty. In the year 2015, the Supreme Court refused to
stay the execution of Yakub Memon, the death row convict in 1993 Mumbai bomb blasts which
led to the killing of 257 people and injury to many. 167 In 2015 judgment of the Supreme Court in
Vikram Singh v. Union of India 168 , the constitutionality of Section 364-A of the IPC was

notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967
but has deteriorated over the years and is fast worsening today. The present is, therefore, the most inopportune time
to reconsider the law on the subject, the Court said and it refused to refer the matter to the larger Bench (See Para 6
of the Judgment).
165
(2011) 13 S.C.C. 706 (India).
166
See Para 100 of the Rajesh Judgment.
167
For brief history of the case, please refer http://www.firstpost.com/india/yakub-memons-hanging-heres-case-
unfolded-years-2370210.html (accessed on 5/01/2016). For full text of the case in which the three judge Bench
refused to stay the execution, please seeYakub Abdul Razak Memon vs. State of Maharashtra and Ors (2015) 9
S.C.C. 552 (India).
168
A.I.R. 2015 S.C. 3577(India). In Vikram Singh case, the three Judge Bench summed up the principles of
punishment as follows: To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences
for which the same are prescribed; (b) Prescribing punishments is the function of the legislature and not the Courts';
(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are
necessary to meet those needs; (d) Courts show deference to the legislative will and wisdom and are slow in
upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences; (e)
Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously
disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of
decency;(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of
the Court reviewing the punishment difficult; (g) Courts cannot interfere with the prescribed punishment only

160
challenged which prescribes the punishment of death for the offence of kidnapping for ransom.
Section 364-A was added to the IPC by Criminal Law Amendment Act, 1993.169 The contention
was that the punishment of death was disproportionate to the gravity of the crime. In other
words, the offence of kidnapping for ransom is not of such a high gravity that death could be
awarded.170 Negating the contention, the court said that punishment might be disproportionate
but it is not so disproportionate that it should be strike down as unconstitutional. However, the
court did not answer the question as to whether under the present constitutional jurisprudence,
the sentence of death for non-homicidal offences would be appropriate or not, thus leaving the
question wide open. However, it is very certain that court has become very cautious in awarding
death in the recent years. The recent changes in Supreme Court Rules mandating the court to
hear death sentence by a bench of three judges is a testimony to the fact. 171 The court, on its part,
is making all the effort not to award death sentence erroneously. At this juncture, it would also
be relevant here to look at the approach of Indian Parliament. Parliament seems not in a mood to
abolish death. In the recent Criminal Law Amendment Act, 2013 passed by Indian Parliament in
consequence of gruesome gang rape and murder of a girl on 16 th December, 2012 in Delhi, there
are two provisions in the Act i.e. Section 376 A and Section 376 E which provides for death. 172

because the punishment is perceived to be excessive; (h) In dealing with questions of proportionality of sentences,
capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that
while there are several instances when capital punishment has been considered to be disproportionate to the offence
committed, there are very few and rare cases of sentences of imprisonment being held disproportionate.
169
Section 364-A of the Indian Penal Code read as follow: Kidnapping for ransom, etc.—Whoever kidnaps or
abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or
hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or
international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a
ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
170
The court said that given the background in which the law was enacted and the concern shown by the Parliament
for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment
prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously
disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial
discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section
364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only
in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in
appropriate cases cannot make it per se inhuman or barbaric (See Para 50 of the Vikram Singh Judgment).
171
See Supreme Court Rules, 2013 and also my first chapter where I have made reference to that.
172
Section 376A of the Criminal Law Amendment Act, 2013 provides that whoever, commits an offence punishable
under sub-section (l) or subsection (2) of section 376 and in the course of such commission inflicts an injury which
causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment
for life, which shall mean imprisonment for the remainder of that person's natural life, or with death. Section 376E
provides that whoever has been previously convicted of an offence punishable under section 376 or section 376A or
section 376B and is subsequently convicted of an offence punishable under any of the said sections shall be

161
This is despite the fact that Justice Verma Committee which was set up by the Government of
India to recommend changes in rape law in wake of massive public protest post 16th December,
2012 Delhi gang rape has not recommended death in view of worldwide abolitionist
movement. 173 Further, in December 2014, the Union Minister for Civil Aviation,Mr. Ashok
Ganapati Raju introduced the Anti-Hijacking Bill in the Rajya Sabha that also provides for the
death penalty for certain offences relating to hijacking. 174

3.5.4 EVOLVING CONSTITUTIONALISM: Evolving Constitutional jurisprudence is also

one of the factors for the devising of alternative sentencing in death penalty cases. The literal
approach adopted in the interpretation of fundamental rights has been discarded and the courts
have become more pro-active in liberal and expansionist interpretation of fundamental rights

punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life,
or with death. Further making the law more rigorous, the Parliament has passed the Criminal Law (Amendment)
Act, 2018. For the offence of Rape below the child of 12 years of age, the minimum punishment has been increased
from 10 years imprisonment to 20 years imprisonment and the maximum punishment to death or life imprisonment.
Further, no anticipatory bail will be available in the case of the rape concerning minor girl below 16 years of age.
The Amendment Act, 2018 has also brought changes in Criminal Procedure Code, 1973, Indian Penal Code, 1861
and Protection of Children from Sexual Offences Act, 2012.

173
The Verma Committee Report said in Para 24: “In our considered view, taking into account the views expressed
on the subject by an overwhelming majority of scholars, leaders of women’s’ organisations, and other stakeholders,
there is a strong submission that the seeking of death penalty would be a regressive step in the field of sentencing
and reformation. We, having bestowed considerable thought on the subject, and having provided for enhanced
sentences (short of death) in respect of the above-noted aggravated forms of sexual assault, in the larger interests of
society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the
argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty.” The Committee
further said in Para 25: “We must therefore end this topic with a note of caution. Undoubtedly, rape deserves
serious punishment. It is a highly reprehensible crime in the moral sense, and demonstrates a total contempt for the
personal integrity and autonomy of the victim. Short of homicide, it is the “ultimate violation of self.” It is also a
violent crime because it normally involves force or the threat of force or intimidation to overcome the will and the
capacity of the victim to resist. Rape is very often accompanied by physical injury to the victim and can also inflict
mental and psychological damage. We have no doubt that it undermines the communicating sense of security and
there is public injury. However, we believe that such offences need to be graded. There are instances where the
victim/survivor is still in a position from which she can, with some support from society, overcome the trauma and
lead a normal life. In other words, we do not say that such a situation is less morally depraved, but the degree of
injury to the person may be much less and does not warrant punishment with death. The Committee also said that
the Working Group on Human Rights in India and the UN has made a submission before the Committee that there
should be no amendment to the existing law to either provide death penalty and/or chemical castration for the
offence of rape or sexual assault” ( See Para 26 of the Report). Full Text of the Justice Verma Committee Report can
be accessed from file:///I:/PHD%20CURRENT%20ISSUES/Justice-Verma-Committee-Report.pdf. Also please
refer to the article titled “Verma panel says no to death penalty”;
Source:http://www.thehindu.com/news/national/verma-panel-says-no-to-death-
penalty/article4336046.ece(Date of access: 31/01/2018).
174
Now, it is an Act having been passed by Parliament and receiving the assent of the President on 13 May, 2016.
Section 4 of the Act provides for the punishment for offence of hijacking and one of the punishments prescribed is
death.

162
primarily Articles 14 and 21 of the Constitution of India. A brief discussion on Article 14 and 21
will help us appreciate the situation in much better fashion.

3.5.4.1 ARTICLE 14: Article 14 of the Constitution of India, which falls in Part III of the
Constitution, says that the State shall not deny to any person equality before the law and equal
protection of law. Under the Indian Constitution, Articles 15 to 18 deals with different facet of
equality with the main principle of equality laid down in Article 14 of the Constitution. The
guiding principle of Article 14 of the Constitution is that all persons similarly placed shall be
treated alike. Equality before the law means amongst the equals the law should be equal and
should be equally administered and like should be treated alike. It does not forbid differential
treatment of those people who are unequally placed. Initially, Article 14 was based on a valid
classification doctrine which means that a classification to be valid must fulfill two conditions
i.e. firstly, it must be founded on intelligible differentia; secondly, the differentia must have a
rational relation to the object sought to be achieved by the statute in question and thirdly that the
object of classification should be lawful. However, subsequently, a new approach to Article 14
was adopted through judicial interpretation. In the year 1973, the Supreme Court in E P Royappa
v. State of Tamil Nadu175 evolved a new approach to Article 14 in the following words, “Equality
is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and
confined within traditional and doctrinal limits. From a Positivistic point of view, equality is
antithetic to arbitrariness. In fact, equality and arbitrariness are sword enemies; one belong to
the rule of law in a republic while the other to the whims and caprice of an absolute monarch.
When an act is arbitrary, it is implicit in that it is unequal both according to the political logic
and constitutional law and is therefore violative of Article 14.” Elaborating the concept further,
the Supreme Court in Maneka Gandhi case176 said, “Article 14 strikes at arbitrariness in state
action and ensures fairness and equality of treatment. The principle of reasonableness, which is
logically as well as philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence.” Thus, anti-arbitrariness approach was given
to Article 14 in this decision. The repercussion of this new approach felt in the death penalty
cases decided thereafter. For instance, in Mithu case, the Supreme Court applied the new
approach of arbitrariness under Article 14 and strike down Section 303 of the Indian Penal Code

175
A.I.R. 1974 S.C. 555 (India).
176
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).

163
which provides for mandatory death sentence for murder committed by the life convict on the
ground that it is arbitrary and thus violative of Article 14 of the Constitution as it completely
excludes judicial discretion. The same issue was pointed out by the Supreme Court in Santosh
Kumar Bariyar case where the court said that the variation in the interpretation of rarest of rare
case may be constitutionally infirm because of apparent arbitrariness on account of the content of
the doctrine. The court further said that it could be safely said in the context of Indian experience
on death penalty that no standards can be culled out from the judge made law which governs the
selection of penalty apart from the broad overall guidelines of the rarest of rare test in Bachan
Singh case. The court further said that frequent findings as to arbitrariness in sentencing under
Section 302 of the Indian Penal Code violate the idea of equal protection clause under Article 14
of the Constitution of India and also violate the due process requirement under Article 21 of the
Constitution of India. The court said that the subject matter of enquiry is how discretion under
Section 302 may result in arbitrariness in actual sentencing. Section 302 of the IPC is not an
example of law which is arbitrary on its face but is an instance where the law has been arbitrarily
administered, the court said. Taking into account inconsistency and lack of uniformity in
sentencing, the court said that these factors make it feel reluctant to confirm the death penalty of
the accused in spite of the fact that the crime committed, on the facts of the case, was diabolical
and revolting. The court said in no uncertain term that equal protection clause ingrained under
Article 14 applies to the judicial process at the sentencing stage. A capital sentencing system that
results in differential treatment of similarly situated convict violates Article 14 of the
Constitution. If the capital sentences cannot be rationally distinguished from a significant
number of cases where the result was a life imprisonment, it is more an acknowledgment of the
imperfect sentencing policy and hence capital sentencing system becomes constitutionally
arbitrary, the Court said.

3.5.4.2 ARTICLE 21: A brief background of Article 21 of the Constitution of India would help
us better understand the present situation. Article 21 of the Constitution of India, though couched
in negative terms, is one of the most important rights guaranteed to the people of India. It says
that no person shall be deprived of life and personal liberty except according to the procedure
established by law. It applies to both citizens and non-citizens. In a noted case of A .K. Gopalan

164
v. The State of Madras177, the Supreme Court gave a very narrow interpretation to Article 21 by
laying down that the procedure under Article 21 can be any procedure prescribed by the
legislature implying that the quality of the procedure is irrelevant under Article 21 and the court
was not concerned with the question as to whether procedure was just, reasonable or fair. The
court said that the expression “procedure established by law” is different from the expression
“due process of law” enshrined in the American Constitution. It seems that in Gopalan case, the
court was influenced by the literal or positivist school of law. This blunder in Gopalan was
rectified in the Maneka Gandhi case in the year 1978 when Article 21, after remaining dormant
for three decades, rose to new height and acquired the highly activist magnitude. The Supreme
Court in its landmark judgment in Maneka case said that the “procedure” prescribed in Article 21
cannot be any procedure but it must be just, reasonable and fair. It cannot be oppressive, fanciful
and arbitrary. The court said that Article 21 embodies a constitutional value of supreme
importance in a democratic society. Justice Krishna Iyer declared Article 21 as a magna carta of
life and liberty. The Maneka judgment is also hailed for giving widest interpretation to the
expression “personal liberty” appearing in Article 21. The court discarded the expression of
personal liberty given in Gopalan case that it means only liberty relating to the body of
individuals. The court in Maneka said that Article 21 is not merely confined to animal existence
but it includes within its ambit the right to live with human dignity and all those aspect of life
which goes on to make man’s life meaningful, complete and worth living. The expression
“persona liberty” is of the widest amplitude and it covers a variety of rights that goes on to
constitute the personal liberty of a man and some of them have been raised to the status of
distinct fundamental right and given additional protection under Article 19. The term “personal
liberty” means not only freedom from arrest or detention, from false imprisonment or wrongful
confinement but means much more than that. The court in Maneka also emphasized on integral
relationship between Article 14, 19 and 21 of the Constitution of India. The court further said
that “Procedure” in Article 21 applies to both substantive as well as procedural law and it should
confirm to the principle of natural justice or “fair play in action”. Thus, if we apply Maneka to
the present sentencing policy in capital sentencing, then only irresistible conclusion is that
present capital sentencing policy is constitutionally arbitrary and violative of Article 21 because
a procedure or mechanism to deprive a person of its life arbitrarily cannot but must be strike

177
A.I.R. 1950 S.C. 27 (India).

165
down as unconstitutional. The court in Santosh Kumar Bariyar case exactly pointed out this
anomaly in capital punishment sentencing in India. There is hardly a year gap in the landmark
judgments of the Supreme Court in Maneka and Bachan Singh case. Further, in the case of
Francis Coralie178 the court while dealing with the right of the prisoners said that the right to life
includes the right to live with human dignity and all that goes along with that. In the Bachan
Singh case itself, Justice Sarkaria rephrases Article 21 of the Constitution of India in the
following words, “No person shall be deprived of his life and personal liberty except according
to fair, just and reasonable procedure established by valid law”. While referring to Maneka and
other subsequent decisions, the Supreme Court in Mithu case observed “These decisions have
significantly expanded the scope of Article 21 in a significant way and it is now too late in the
day to contend that it is for the legislature to provide for punishment and for the courts to impose
it...the last word on the question of justice and fairness does not rest with the legislature. It is
difficult to hold that prescription of mandatory death sentence answers the test of reasonableness
and added that a provision of law which deprives the court of the use of its wishes and beneficent
discretion in a matter of life and death, without regard to the circumstances in which the offence
was committed, and therefore, without regard to the gravity of the offence, cannot but be
regarded as harsh, unjust and unfair.”

Drawing the antithesis between Article 21 and the imposition of death penalty, the court in
Bariyar case said that the right to life is the most important right of all. Hence, a punishment
which takes away that right must be the gravest punishment. The court further said that capital
punishment puts a limit on the fundamental right to life because it takes away life irretrievably.
Right to life is essential content of all the rights under the Constitution. If the life is taken away,
all other rights cease to exist. Quoting Shankarlal Gyarasialal Dixit vs. State of Maharashtra179
the court said that the passing of sentence of death must elicit the great concern and solitude of
the judge because it is this sentence which cannot be recalled back. In the context of punishment,
protection of Articles 14 and 21 must be applied in the strictest possible term. In every capital
sentencing case, it must be borne in mind that the threshold of rarest of a rare case is informed by
Articles 14 and 21 owing to the inherent nature of the death penalty. The court further said that

178
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746 (India).
179
A.I.R.1981 S.C. 765 (India).

166
Article 21 imposes two kinds of limitations on punishment, that is, Due Process requirement and
Proportionality requirement.

Thus, the court in Bariyar case categorically laid down the dictum that the capital sentencing law
and procedure must satisfy the test of reasonableness enshrined in Articles 14 and 21 of the
Constitution of India. Any practice of capital sentencing which is inconsistent or devoid of
uniformity in standards violates the constitutional safeguards under Articles 14 and 21 of the
Constitution of India. In fact, as mentioned above, due to the current scenario of uncertainty
regarding capital punishment sentencing, the court in Bariyar case commuted the death penalty
into life imprisonment.

Thus, due to the growing awareness of constitutionalism through the expansionist and activist
magnitude of Articles 14 and 21 of the Constitution of India, the court is refraining itself from
awarding death as the court is not willing to take the blame of having deprived a person of his
life which, later on, was found to be based on arbitrary application of law. The court is aware of
the irrevocable nature of death penalty and, therefore, is of the view that unless the uncertainty
surrounding it is finally settled through evolution of a rational sentencing policy, the award of
capital punishment will be injudicious except in those cases where the facts are revolting to such
an extent that awarding any punishment other than death would amount to injustice. In fact, this
amount of precautionary or rather safe approach is seen in a number of the recent judgments of
the court on the death penalty in which the court has commuted the death into life imprisonment.
Hence, it can be said that due to the growing awareness of constitutional rights of the citizens in
general and accused in particular coupled with the lack of uniformity in sentencing policy, the
court is adopting safer path of not awarding death penalty in a number of cases. This principle of
constitutionalism was also reflected in Bariyar case where the court said that procedure laid
down under Section 354 (3) of the CrPC should be interpreted in the light of the Article 21 of the
Constitution of India and the interpretation placed upon it by the court in Bachan Singh case and
Machhi Singh case.

3.5.5 GROWING AWARENESS OF THE HUMAN RIGHTS OF THE ACCUSED: The

foundation of any society is based on the rule of law and an important aspect of the rule of law is
the right of the accused to have fair trial. This concept is fundamental to the criminal

167
jurisprudence in every civilized society. 180 Amongst all the rights which the accused enjoy in any
criminal justice administration, the right to fair trial occupies the place of prominence as many
rights of the accused in the criminal justice system emanate from this right itself. 181 The right to
fair trial means that the accused should be properly heard and be given proper opportunities to be
heard before he is condemned. In course of time, this right embodied within its aspect right to
speedy trial as one of its essential ingredients because it was noted during the nascent
functioning of Indian criminal justice administration post-independence that due to the defect in
our criminal justice system, the accused faced number of issues. The most important being
inordinate delay in investigation and judicial process which led to languishing of the accused in
jail as under-trial for years without actual trial being commenced. 182 Other issues related to the
accused suffering police torture inside the jail and consequent custodial death; inhuman
treatment meted out to the accused such as handcuffing, solitary confinement; denial or
deprivation of legal assistance etc. However, with the enactment of the new Criminal Procedure
Code in 1973, a number of rights were provided to the accused which were not there hitherto
such as legal aid to the accused at the expense of the state which should be read with Article 39A
of the Constitution of India. However, it was noticed during actual functioning of the CrPC, 1973
that the accused rights were violated at every stage of the investigation and the trial for one
reason or another. Against this background, the Indian judiciary emerged as the saviour of their
rights. A number of decisions of the Supreme Court primarily during 1970s, 1980s and also
during 1990s will show that the court emerged as the protector of the rights of the accused as it
could not remain mute spectator to the injustice perpetuated on them at the hand of the state

180
The Right to Fair trial is an important basic human right. In the year 1948, it was affirmed as a basic human right
by Universal Declaration of Human Rights (UDHR). See Article titled “The Right to a Fair Trial in Criminal
Proceedings as a Human Right” by David Harris; Source: The International and Comparative Law Quarterly, Vol.
16, No. 2 (Apr., 1967), pp. 352-378 Published by Cambridge University Press on behalf of the British Institute of
International and Comparative Law (See Page 352 of the Journal).
181
In Hussainara Khatoon and Ors. vs. Home Secretary, State of Bihar, Patna, A.I.R.1979 S.C.1360 (India), the
Supreme Court was disturbed by the fact that the under-trial prisoners were languishing in jail for as many as five,
seven or nine years and a few of them, even more than ten years, without their trial having begun. The Court said
that there can be little doubt, after the dynamic interpretation placed by this Court on Article 21 in Maneka Gandhi
v. Union of India (1978) 2 S.C.R. 621 (India), that a procedure which keeps such large number of people behind
bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the
requirement of that Article. The Court admitted the fact that our judicial system continually denies justice to the
poor people. The court also said that speedy trial is of the essence of criminal justice and there can be no doubt that
delay in trial by itself constitutes denial of justice (See Para 5 of the Judgment). The Court also referred to Article 3
of the European Convention on Human Rights which provides that everyone arrested or detained shall be entitled to
trial within a reasonable time or to release pending trial.
182
supra note 181; See Hussainara Khatoon case.

168
instrumentalities. Some of the cases of those periods will reflect the pro-accused stance of the
Indian judiciary. For instance, in Hussainanara Khatoon case, the Supreme Court recognized the
right to speedy trial as a part of fundamental right under Article 21 of the Constitution of India
and observed that considerable delay in investigation of criminal cases, prolonged detention of
under-trials awaiting trial and detention of the under-trial beyond the period of maximum
imprisonment awardable for a particular offence violates the right to life and personal liberty
under Article 21. In Nimeon Sangma v. Home Secretary, Government of Meghalaya183Justice
Krishna Iyer, scathingly attacking on the delaying judicial procedure, observed: “...Considerable
delay in investigation by the police in utter disregard of the fact that a citizen has been deprived
of his freedom on the ground that he is accused of an offence, verges on the wholesale breach of
human rights guaranteed under the constitution especially under Article 21…criminal justice
breaks at a point when expeditious trial is not attempted while the affected parties are
languishing in jail.” Even the delay in pronouncing the judgment came under judicial scanner in
the recent case of Anil Rai v. State of Bihar184 in which the Supreme Court said that unexplained
long interval between the conclusion of arguments and delivery of judgment shakes the
confidence of the people in the judicial system and violates Article 21 of the Constitution of
India. The court in this case laid down several guidelines to curb the menace of delay in the
pronouncement of the judgments. Even, on several occasions, the court has gone to the extent of
condemning strike by lawyers on the ground of violation of the rights of the speedy trial and of
legal assistance.185

Sunil Batra vs. Delhi Administration 186 is another landmark judgment in which the Supreme
Court espoused the right of the prisoners. The court in this case said that prisoner has a
fundamental right not to be confined in solitary confinement. Under Section 30(2) of the Prisons
Act, 1894, every prisoner under sentence of death shall be confined to a cell apart from all other
prisoners and shall be placed by day and by night under the charge of a guard. The appellant was
sentenced to death having been convicted for the offence of murder and dacoity. He was placed
in solitary confinement which he challenged invoking Articles 14 and 21 of the Constitution of
India. Pronouncing the Judgment, Justice Krishna Iyer held the placement of the prisoner in

183
A.I.R. 1979 S.C. 1518 (India).
184
A.I.R. 2001 S.C. 3173 (India).
185
KoluttumottilRazak v. State of Kerala, (2000) 4 S.C.C. 465 (India).
186
A.I.R. 1978 S.C. 1675 (India).

169
solitary confinement to be unconstitutional and said that Fundamental Rights of the accused
under Part III is not lost when he is put behind the bar. In fact, he is entitled to all his rights even
inside the prison. This question again came up in Kishor Singh Ravinder Dev v. State of
Rajasthan187 in which Justice Krishna Iyer said that solitary confinement to be resorted to only in
the rarest of the rare case for security reasons to make it in consonance with Article 21 of the
Constitution. Again while condemning handcuffing as inhuman, the Supreme Court in Prem
Shankar Shukla v Delhi Administration188through Justice Krishna Iyer held that handcuffing of
the accused is prima facie inhuman. Further, the court also held that handcuffing of only the
ordinary prisoners and leaving the better class prisoners is arbitrary. In the same case, the court
also held that handcuffing can be done only in the rarest of rare cases. Giving a new dimension
to the prisoners’ right, the Supreme Court in Prabha Dutt v. Union of India189 held that it is a
fundamental right of the press under Article 19(1) (a) of the Constitution of India to interview
prisoners sentenced to death. Similarly, in Francis Coaralie Mullin v. Union Territory of Delhi190
the Supreme Court held that a detenue has a fundamental right to have interview with his legal
advisors and family members and he should not be deprived of this inalienable right. The
Supreme Court also espoused the right to privacy of the prisoner in the later case of R. Raja
Gopal v. State of Tamil Nadu.191Then, in the landmark judgment of Maneka Gandhi v. Union of
India192 , the Supreme Court held that the “Procedure” in Article 21 has to be fair, just and
reasonable and it cannot be arbitrary, capricious and unreasonable. The Court also gave broadest
amplitude to the “Personal Liberty” embodied in Article 21 in the same case. Then, in State of
Punjab v. Sarwan Singh193, the court held that the right to fair trial is implicit in Article 21.
Again in Vineet Narain v. Union of India194, popularly known as Jain Dairy case, the Supreme
Court held that public hearing is a part of fair trial under Article 21 of the Constitution of India.
Giving a new dimension to the human rights of the accused in Rudal Shah v. State of Bihar195,
the court said that the detention of the accused after his acquittal for 14 long years is nothing less

187
A.I.R. 1981 S.C. 625 (India).
188
A.I.R. 1980 S..C 1535 (India).
189
A.I.R. 1982 S.C. 6 (India).
190
A.I.R. 1981 S.C. 746 (India).
191
A.I.R. 1995 S.C. 264 (India).
192
A.I.R. 1978 S.C. 597 (India).
193
A.I.R. 1981 S.C. 1054 (India).
194
A.I.R. 1998 S.C. 889 (India).
195
(1983) 4 S.C.C. 141(India).

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than an illegal detention for which the victim (accused) is entitled to interim compensation apart
from the right to bring regular suit against the government. As evidenced from all these
judgments, judicial activism was at its peak in the late 1970s and early 1980s. At or about the
same time, new Criminal Procedure Code, 1973 came into existence, replacing the colonial
Criminal Procedure Code, 1898; the former being more progressive and reform oriented. Even in
the 1990s, the judicial activism of the court in favour of the rights of the accused remained
unabated. In the case of Nilabati Behara v. State of Orissa 196 , the Supreme Court awarded
monetary compensation to the family of the victim who was killed in police custody for the
charge of simple theft. The court was aghast at the barbaric and inhuman nature of the police
behaviour and held that any person whose fundamental right has been violated can move to the
Supreme Court or High Court under Articles 32 and 226 of the Constitution respectively. Then
again, in D.K Basu v. State of West Bengal 197 , the Supreme Court took cognizance of the
widespread case of custodial violence and held that such violence violates the right to life and
personal liberty of the accused under Article 21. The Supreme Court, acting on a Public Interest
Litigation (PIL), held that custodial death and any form of cruel or inhuman treatment attracts
inhibition of Article 21 of the Constitution of India whether occurring during investigation,
interrogation or otherwise. The court issued guidelines to be followed by all the States and Union
Territories in all cases of arrest and detention till the effective legal provisions are made by the
states in that behalf. In a recent 2003 judgment of Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhoble198, the Supreme Court again observed that custodial violence, torture and
abuse of police power are not peculiar to this country but it is widespread world over and is a
matter of serious concern for the international community. The court observed that the problem
is global and universal. The court reminded that most basic universal human rights are enshrined
in Universal Declaration of Human Rights,1948 (UDHR), the Article 5 of which says that no one
shall be subjected to torture or cruel, inhuman or degrading punishment or treatment. The court
reminded of constitutional protection enshrined in Articles 21, 22 and 20(3) of the Constitution
of India and the various safeguards available to the accused under the Criminal Procedure Code
and observed that it is very difficult to comprehend how torture and custodial violence can be
permitted to defy the rights flowing from the Constitution. The court further observed that the

196
A.I.R. 1993 SC 1960 (India).
197
A.I.R. 1997 S.C. 568 (India).
198
A.I.R. 2003 S.C. 4567 (India).

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dehumanizing torture, assault and death in custody which have assumed alarming proportions
raise serious concern over the credibility of the Rule of Law and administration of criminal
justice system. The community rightly gets disturbed and the cry for justice becomes louder and
warrants immediate remedial measures, the court said.

Recognizing the importance of free legal aid, the Constitution was amended through 42 nd
Amendment Act, 1976 and the right to free legal aid was made part of Directive Principles of
State Policy under Article 39-A. In M.H. Hoskot v. State of Maharashtra 199, the Supreme Court
held that the right to free legal aid at the state expense to the poor and indigent is an inalienable
aspect of Article 21 and it was the trial court’s obligation to inform an indigent person of his
right to legal aid. This principle was again reiterated by the then Chief Justice Bhagwati in Suk
Das v. Union Territory of Arunachal Pradesh 200 in which the court held that this right emanates
as soon as the accused person is arrested and produced before the magistrate and not only when
the trial commences. Again, in Sheela Barse v. State of Maharashtra201, the Supreme Court held
that the right to legal assistance is a constitutional imperative mandated not only by Article 39A
but also by Articles 14 and 21 of the Constitution. Justice Bhagwati (as he then was) observed
that the right to legal assistance is a sine qua non of justice and where it is not provided, injustice
is likely to result, and undeniably, every act of injustice corrodes the foundation of democracy
and rule of law.

In a recent judgment 202 dated 5/02/2016, a Bench comprising Madan B Lokur and R.K. Agarwal,
JJ said that the prisoners, like all other human beings, deserved to be treated with dignity. The
court took note of the fact that the prisons suffer from a wide range of problems like
overcrowding, delay in trial, custodial deaths, inadequacy of staffs and other problems. The
Bench issued several directions to improve the condition of prisoners in India.

As far as infusion of human rights into capital punishment jurisprudence is concerned 203 , as
mentioned earlier, the constitutionality of death was challenged in Bachan Singh case. The
Constitution Bench (all the judges except Justice Bhagwati) upheld the constitutionality of

199
A.I.R. 1978 S.C. 1548 (India).
200
A.I.R. 1986 S.C. 991 (India).
201
A.I..R 1983 S.C. 378 (India).
202
In Re, Inhuman Conditions in 1382 Prisons (Writ Petition (Civil) No. 406 of 2013) ((2016) 3 S.C.C.700 (India).
203
Please refer to the sub-heading “Abolitionist Movement Worldwide” discussed above.

172
capital punishment but with the rider that it is to be awarded only in the rarest of rare cases. The
capital punishment is an altogether different punishment primarily because it extinguishes life
and is irreversible which raises several human rights issues. Due to its deprivation of life
characteristic, many nations all over the world have abolished it in totality and have replaced it
mainly with Life Imprisonment without Parole (LWOP). However, despite the majority
judgment in Bachan Singh case, the constitutionality of death was challenged again though
unsuccessfully in a number of subsequent Supreme Court cases such as in Deena, Shashi Nayar,
Allaudin Mian 204 , Jumman Khan 205 and others primarily on the ground of inconsistency in
sentencing and in view of worldwide abolitionist movement. However, in all these cases, the
court has refused to strike down death as unconstitutional.

The new dimension to the fairness in death penalty jurisprudence was added when the Supreme
Court in Mithu case strike down as unconstitutional Section 303 of the IPC which provided for
mandatory death punishment for murders committed by life convicts. The court held that Section
303 of the IPC which completely excludes judicial discretion is violative of Articles 14 and 21 of
the Constitution of India. Then, another contentious issue arose in death penalty as to whether
delay in execution of death sentence offends Article 21 of the Constitution. In T.V.
Vatheeswaran v. State of Tamil Nadu206a two judge Bench took the pro-convict approach by
observing that if there is a delay exceeding two years in the execution of the sentence of death,
the accused would be entitled to invoke Article 21 of the Constitution and demand commutation
of death into life imprisonment. However, soon thereafter in the year 1983 itself, the three judges
Bench of the Supreme Court in Sher Singh v. State of Punjab207 overruled the Vatheeswaran
judgment and held that the delay exceeding two years would not be enough by itself in quashing
death sentence and to get it converted into life. The court observed that the fixation of the time
limit of two years does not seem to be in accord with the common experience of the time
consumed by the litigative process and the proceedings before the executive. Due to these two
conflicting judgments, the matter was referred to the Constitution Bench of the Supreme Court in
Triveniben v. State of Gujarat 208 which incorporates the reason for the final order passed in

204
A.I.R. 1989 S.C. 1456 (India).
205
A.I.R. 1991 S.C. 345 (India).
206
A.I.R. 1983 S.C. 361 (India).
207
A.I.R. 1983 S.C 465(India).
208
AIR 1989 S.C. 1335 (India).

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Triveniben v. State of Gujarat. 209 The Bench held that undue delay in execution of death
sentence will entitled the prisoner to approach the Supreme Court under Article 21 of the
Constitution but it will not give any vested right to the prisoner to get it sentence commuted into
life imprisonment. The Bench further observed that the only delay which will be material for
consideration will be the delay in disposal of the mercy petitions or delay occurring at the
instance of the executive. It was further held that no fixed period of delay could be held to make
the sentence of death inexecutable and rejected the two year rule of Vatheeswaran. The Bench
held that appropriate factor to be taken into account will be the delay in the disposal of the mercy
petition because as long as the matter is pending before the court there is a ray of hope in the
eyes of the prisoner. Hence, the delay at the hand of the executive will be the appropriate delay
to be taken into account for commutation of life into death. Subsequently, the matter came up for
consideration in Madhu Mehta v. Union of India210 in which the Division Bench held that speedy
trial, which is a part of Article 21, equally applies to disposal of mercy petition because a
prisoner has to suffer a degree of mental torture even though there is no physical maltreatment.
The Bench quoted the observation of Justice Shetty in Triveni Ben (supra) case to the effect that
“As between funeral fire and mental worry, it is the latter which is the more devastating, for
funeral fire burns only the dead body while the mental worry burns the living one.” Having noted
that the mercy petition remain delayed for years in Madhu case, the Bench held that there were
no reasons sufficiently commensurate to justify such long delay and because of the mental agony
suffered under the constant fear of death for long, the death sentence was altered into life
imprisonment.

One important consequence of growing judicial activism in the field of human rights of the
accused has been the preference of rehabilitative/ reformative objective of sentencing over
proportionality objective of sentencing especially in death cases. The proportionality test,
popularly known as jus desert, is based on the principle that accused must receive punishment
proportionate to the gravity of his crime and this is considered to be one of the principle
objectives of sentencing. However, with the growing awareness of the concept of human rights
all over the world which influenced India too, the proportionality test has somewhat taken a
backseat especially in cases of murder. For instance, the Supreme Court in Santosh Kumar

209
A.I.R 1989 S.C.142 (India).
210
A.I.R 1989 S.C. 2299 (India).

174
Bariyar case expressly gave preference to rehabilitative test over proportionality test irrespective
of the diabolical nature of the crime. There is also a line of thinking that CrPC, 1973 is
reformative and rehabilitative oriented as it requires death to be awarded only after meeting the
requirement of special reasons under Section 354(3) and hence rehabilitative angle should be
given more weightage vis a vis other mitigating circumstances. This was also the observation of
Constitution Bench in Bachan Singh case. As a result, the judicial trend 211 in the last few decades
appear more and more inclined towards exploring sign of rehabilitation of the convict in death
cases and consequently there is heavy burden on the prosecution to prove that the accused cannot
be reformed. In the absence of discharge of such burden, the general presumption will always be
that the convict can be rehabilitated even if the crime was committed in the dastardly manner.
The importance being given to the possibility of reform by the courts may be seen in the light of
the growing awareness of the human rights of the accused and secondly the ever growing
influence of the abolitionist movement all over the world.

3.5.6 RETRIBUTIVE JUSTICE: Another important factor which can be said to be responsible
for devising of alternative sentencing by the Supreme Court is the dire need for retributive justice
in cases of heinous crimes. Retributive justice, as one of the theories of sentencing, carries the
central idea that the accused must be proportionately punished for the crime he has committed. 212
That is to say that those who indulge themselves in wrongful acts morally deserve to suffer
punishment. Retributivism, principally, is based on the central idea of desert and proportionality.

Applying the same, the Supreme Court in its majority judgment in Union of India v. V.
Sriharan 213 gave the reasoning of retributive justice for devising alternative sentencing. The
Court, endorsing the approach taken in Swamy Shradhananda case, said that the accused must be
punished severely for the crime he has committed and hence it would be imperative to award him
sentence which might go beyond the period of fourteen years. And this approach will also be in
consonance with the requirement of justice for the victims who have suffered crime. In other
words, the court is of the view that punishment must be such that on the one hand the accused
must suffer retribution for the harm he has caused to the society and on the other hand

211
Amit v. State of UP (2012) 4 S.C.C. 107 (India); Amit v. State of Maharashtra (2003) 8 S.C.C. 93(India).;Rajesh
Kumar v. State ((2011)13 S.C.C. 706 (India).) and other cases.
212
For detailed discussion on Retributive Theory of Punishment, Please refer to my first chapter.
213
Union of India v. Sriharan @ Murugan and Ors.2015 (13) SCALE 165 (India).

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punishment imposed shall be such that it will meet the end of justice from the viewpoint of
victims. The court was pained at the fact that since the last few decades, there has been upsurge
in the rise of professional and organized crimes in the country. However, the punishment of
fourteen years in case of life convicts appears to be too inadequate to meet the end of justice. A
longer range between ordinary life imprisonment and imprisonment till the end of life will enable
the court to award appropriate punishment to the convict which will meet the twin objectives of
retributivism as against the convict and justice from the viewpoint of victim or victim’s family,
the court observed. The alternative sentencing gives the sufficient sentencing range to the court
to respond to society’s cry for justice by retributively punishing the accused for the crime he has
committed and the harm he has caused to the society.

Justice Fakkir Mohamed Ibrahim Kalifulla, while delivering the majority judgment in V.
Sriharan case in Para 73, 74 and 75, drew attention towards the lawlessness in the country. He
pointed towards the dismal picture of law and order in the country and said that criminals are let
loose endangering the lives of innocent people. Such hardened criminals are in good books of
powerful men of ill gotten wealth. Even the close kith and kin and relatives of the victims of
crime are turning hostile due to fear factor. The learned judge, highlighting the sad state of
affairs, further said that the state machinery has failed to protect the life and liberty of innocent
people in the society. If in such scenario of lawlessness, any further leniency is shown in the
imposition of sentence at least in respect of capital punishment or life imprisonment, then there
will be chaos and anarchy in society and inevitable consequence will be that there will be no
Rule of Law left in the country. The learned judge, while endorsing the view taken in Swamy
Shradhananda case in devising of alternative sentencing, draws attention towards growing rate
of crimes in the society. The learned judge said in Para 74, “We find that criminals of all types of
crimes are on the increase. Be it white collar crimes, vindictive crimes, crimes against children
and women, hapless widow, old aged parents, sexual offences, retaliation murder, planned and
calculated murder, through paid assassins, gangsters operating in the developed cities indulging
in killing for a price, kidnapping and killing for ransom, killing by terrorists and militants,
organized crime syndicates, etc., are the order of the day. While on the one side peace loving
citizens who are in the majority are solely concerned with their peaceful existence by following
the Rule of Law and aspire to thrive in the society anticipating every protection and support from
the governance of the State and its administration, it is common knowledge, as days pass on it is

176
a big question mark whether one will be able to lead a normal peaceful life without being
hindered at the hands of such unlawful elements, who enjoy in many cases the support of very
many highly placed persons. In this context, it will be relevant to note the PRECEPTS OF LAW
which are: to live honourably, to injure no other man and to render everyone his due. There are
murders and other serious offences orchestrated for political rivalry, business rivalry, family
rivalry, etc., which in the recent times have increased manifold and in this process, the casualty
are the common men whose day to day functioning is greatly prejudiced and people in the helm
of affairs have no concern for them. Even those who propagate for lessening the gravity of
imposition of severe punishment are unmindful of such consequences and are only keen to
indulge in propagation of rescuing the convicts from being meted out with appropriate
punishments. We are at a loss to understand as to for what reason or purpose such propagation
is carried on and what benefit the society at large is going to derive.”

Raising further concern, the learned judge in Para 75 of the judgment also highlighted the plight
of long inordinate delay in judicial process and its adverse effect on the criminal justice system
and said that such long delay in judicial process comes handy for the criminals to indulge in
more and more crimes and in the process the interest of common man suffers in society. The
learned judge highlighted the fact that if the society is to be protected from chaos and anarchy at
the hand of hardened criminals, then appropriate punishment proportionate to the gravity of the
crimes has to be imposed. If the inadequate sentence is imposed in case of heinous crimes, then
law will have no deterrent effect and natural sufferer will be the society. The learned judge
further said, while upholding the constitutionality of alternative sentencing, “ Therefore, when
in a case where the judicial mind after weighing the pros and cons of the crime committed, in a
golden scale and keeping in mind the paramount interest of the society and to safeguard it from
the unmindful conduct of such offenders, takes a decision to ensure that such offenders don't
deserve to be let loose in the society for a certain period, can it be said that such a decision is
impermissible in law.”

Attacking over-emphasis on reformation of the criminals and undermining the retributive justice,
Justice Ibrahim Kalifulla in V. Sriharan case, endorsed the observation of the Swamy
Shradhananda to the effect that “The question, therefore, is - should the country take the risk of
innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or

177
wishful thinking that one day or the other, a criminal, however dangerous or callous he may be,
will reform himself. Valmikis are not born every day and to expect that our present generation,
with the prevailing social and economic environment, would produce Valmikis day after day is to
hope for the impossible.”
Thus, there are two main concerns which can be seen in the majority judgment in V. Sriharan
case which can be said to be influential in devising of alternative sentencing: firstly, deterrent
punishment to the hardened criminals so that the rule of law can be maintained in society is the
need of the hour and secondly, by awarding appropriate punishment, it is also to be ensured that
justice is done to the victims of crime. It is against this background, the learned Judge, while
writing for the majority, upheld the constitutionality of alternative sentencing to death penalty.
Thus, retributive Justice can be said to be one of the factors in devising of alternative sentencing
to death penalty by the Supreme Court.

178