Breaking: Sentencing in Nirbhaya violates Articles 14, 21, Amicus Raju Ramachandran

Senior Advocates Raju Ramachandran

Senior Advocate Raju Ramachandran, who is the Amicus Curiae in the Delhi gang rape case, has submitted that the order on sentencing should be set aside.

In his written submissions to the Supreme Court, Ramachandran has advocated that order on sentence passed by the Trial Court on 11.9.2013 and confirmed by the High Court,

“ought to be set aside for violating the fundamental norms of sentencing, constitutionally ingrained, statutorily reflected and judicially interpreted by this Hon’ble Court”.

The four convicts were awarded death penalty by the trial court and the same was confirmed by the Delhi High Court.

Ramachandran has not challenged the death penalty awarded to the convicts; Instead, he has challenged the sentencing order itself. Ramachandran was assisted by advocate K Parameshwar.

Ramachandran’s contentions rest on the following:

“Firstly, the statutory procedure prescribed under the Code of Criminal Procedure, 1973 was not strictly adhered to.

Secondly, the tests prescribed by this Hon’ble Court to be followed while awarding death sentence have been overlooked and/or misapplied both by the Trial Court and the High Court.”

He has relied on Bachan Singh v. State of Punjab as per which principles of sentencing must be “guided by the paramount beacons of legislative policy discernible from sections 354(3) and 235(2)” of the Code of Criminal Procedure, 1973.

“Section 235(2) imposes a duty on the Judge, unless he proceeds in accordance with the provisions of section 360, to hear the accused on the question of sentence, and then pass sentence on him in accordance with law. Section 354(3) mandates that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

Both these provisions are so intertwined with each other, that in cases where death penalty is sought to be imposed, failure to follow the rigours of one, renders the other provision futile”, Ramachandran has stated.

Ramachandran has stated that the statutory duty to state special reasons under section 354(3) can be meaningfully carried out only if the hearing on sentence under section 235(2) is effective and procedurally fair.

“It is submitted that a fair hearing under section 235(2) of the Code, not only includes oral submissions but is also intended to give an opportunity to the prosecution and the defence to place the relevant material bearing on the question of sentence before it and only thereafter, pronounce the sentence to be imposed on the offender.”

The Amicus has submitted that though this procedure was formally complied with in the present case, the Trial Court and the High Court failed to appreciate the spirit of the law.

“It is submitted that:

  1. the Trial Court failed to put any of the accused to notice on the question of imposition of the death sentence;
  2. sufficient time to reflect on the question of death penalty was not granted to the accused;
  3. none of the accused were heard in person;
  4. the Trial Court made no genuine effort to elicit those circumstances of the accused, which would have a bearing on the question of sentence, especially the mitigating factors in cases of death penalty;
  5. no separate reasons were given for the imposition of death penalty on each of the accused and a ‘one-penalty-fits-all’ order was imposed. In other words, there was no individualized or personalized hearing or application of mind on the question of sentence;
  6. The Trial Court failed to put the accused to notice of the range of mitigating factors they could have pleaded, in case death penalty was sought to be imposed on them.”

According to Ramachandran, the major failure of the Trial Court and the High Court lay in the fact that they failed to individualize the hearing and the question sentence to each of the four accused. This according to Ramachandran is a denial of rights under Articles 14 and 21.

“The accused and their counsel were not asked questions about their individual backgrounds and their mitigating factors, there was no application of mind to the case of each accused and therefore, no separate reasons were given for the imposition of death penalty on each of the accused. This denial of an individualized sentencing process results in the denial of Article 14 and 21 of the Constitution of India.”

He has submitted that differently situated individuals have been sentenced to death by a ‘one-penalty-fits-all’ order without application of mind to their individual characteristics and personality and hits at the at the very root of Article 14, which prohibits similar treatment of differently situated individuals.

“The Trial Court and the High Court was so overwhelmed by the nature of the crime and conviction, that it completely ignored the fact that mitigating factors in the case of each accused could be different. This disregard of the individuality of the accused overlooks the very dignity and worth of a person, irrespective of the fact that he is a condemned offender, thus offending Article 21 of the Constitution of India. This fatal breach in the sentencing process, fails to treat each of the accused as an unique and distinct individual, but pre-judges them as belonging to a class of unworthy, ‘homogenous’  class of condemned criminals.”

The submissions by Ramachandran are also relevant in the context of what the defence counsel have alleged.

Advocate ML Sharma, who appears for prime accused Mukesh, has time and again raised the apprehensions that evidence was tampered by the concerned authorities, and that the High Court had bypassed important procedure while passing the order.

Advocate AP Singh, who appears for Pawan Singh, also argued that the Trial Court, as well as the High Court had succumbed to unnecessary media pressure and allowed itself to be swayed by public opinion.

The hearing in the case continued today with AP Singh making his submissions. Ramachandran is expected to start his oral submissions on Friday this week, which is the next date of hearing.

Read the written submissions made by Raju Ramachandran below.