SC says that punishment in capital offences still suffers from considerable uncertainty Sentencing has become judge-centric

A day before Ajmal Kasab’s death sentence was executed, the Supreme Court declared that there needs to be a greater degree of consistency in the manner in which punishments are awarded in cases involving capital offences. The judgment, delivered by the Justices KS Radhakrishnan and Madan Lokur, also examined the power of the appropriate Government to grant remissions and the manner in which the same ought to be done..A day before Ajmal Kasab’s death sentence was executed, the Supreme Court declared that there needs to be a greater degree of consistency in the manner in which punishments are awarded in cases involving capital offences. The judgment, delivered by the Justices KS Radhakrishnan and Madan Lokur, also examined the power of the appropriate Government to grant remissions and the manner in which the same ought to be done..The judgment was delivered in a criminal appeal [Sangeet & Anr v State of Haryana] wherein the limited question to be answered was whether the appellants should have been awarded a life sentence instead the death penalty. In the instant case, the Punjab & Haryana High Court had opined that the facts situation fell within the “rarest of rare” category and confirmed the death sentence awarded by the trial court..Setting aside the decision of the High Court and commuting the punishment to that of life sentence, the Court declared that there was a need to examine the manner in which the “sentencing policy” of the Supreme Court had evolved over the years and whether the sentencing policy needed a relook..The Court observed that post-Bachan Singh, the focus of the sentencing policy shifted from the “crime to the crime and the criminal”. Bachan Singh had laid down the broad guidelines in cases where the death sentence could be awarded while also listing down the possible mitigating factors which might lead to the awarding of a life sentence. Most importantly, Bachan Singh laid down the proposition that life sentence was the rule, while death penalty was the exception..Next, the Court referred to the various judgments which indicated the inconsistencies in the sentencing policy with respect to the death sentence; and that sentencing has become “judge-centric” rather than based on the principles enunciated in Bachan Singh..The Court also mentioned instances where the circumstances pertaining to the criminal have been ignored; instead focus has remained on the circumstances pertaining to the crime alone. Furthermore, there are instances where the convicts have got the benefit of “mitigating circumstances” despite the heinous nature of the crime. In other words, the Court highlighted the lack of consistency in the sentencing policy..Interestingly, the Court also examined the provision of remission of sentences by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973. More specifically, the Court examined the permissibility of awarding sentences explicitly negating the power of remission and held that the same was not permissible. Lastly, the Court clarified that a life sentence was to last for the entire life of the convict and that the convict does not have an inherent right to remission after serving a particular fraction of the sentence..In Para 74 of the judgment, the Court observed:.“..[It] appears to us there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years or twenty years imprisonment. The prisoner has no such right.”.While drawing its conclusions, the Court made the following observations:.– “This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach..– Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review..– In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing..– The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes..– Before actually exercising the power of remission under Section 432 of the Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given on a case-by-case basis and not in a wholesale manner.”.The full text of the judgment can be found below.