Most Judges of the Supreme Court did not understand its judgment in Bachan Singh: Senior Advocate, Rebecca John

At a panel discussion yesterday on the “Matters of Judgment: A Judges’ Opinion Study On The Death Penalty And The Criminal Justice System”, released by the Centre on the Death Penalty of the National Law University, Delhi, Senior Advocate, Rebecca John, said most Judges of the Supreme Court did not understand the ratio of its judgment in Bachan Singh v State of Punjab, delivered by a five-Judge Constitution bench in 1980.  In that landmark judgment, the Court upheld the constitutionality of death penalty, but emphasised that it should be imposed only in the rarest of rare cases, only if the alternative of life imprisonment is unquestionably foreclosed.

According to John, the tendency to impliedly overrule Bachan Singh by smaller benches began with the Court’s ruling in Machi Singh in 1983. By listing five categories of crimes, in which death penalty could be imposed, the three judge bench in Machi Singh focussed on the crime, rather than the criminal. The Bachan Singh bench refused to categorise, John emphasised.

Other aberrations followed in the subsequent cases. In Ravji v State of Rajasthan, delivered by a two-Judge bench in 1996, the ratio of Bachan Singh was impliedly overruled by holding that the manner of commission and gravity of the crime alone mattered.

John emphasised that the bench in Bachan Singh had held that the aggravating and mitigating circumstances of both the crime and the criminal must be considered.

“It is a completely confused bag. There has been no attempt by the lawyers representing the convicts to introduce facts. There is no compulsory evidentiary hearing, or requirement for a report by the probationary officers of the prison”, she said.

Other speakers included academics,  Anuj Bhuwania and Anup Surendranath.   Surendranath, who heads the Centre at NLU, Delhi, gave an overview of the study and the Centre’s work, which collects data on the socio-economic profile of the death-row prisoners. According to him, representing death row prisoners in courts involves a study of the mitigating factors.  This, he said, involves reconstructing their lives from childhood. Mitigation investigation involves different skills to find out whether the prisoners were subjected to repeated abuse in the past.

The research wing of the Centre analyses the data collected, with a focus on the ‘death penalty heavy states’ of Madhya Pradesh, Maharashtra and Delhi.

Neetika Vishwanath, a member of the Centre, explained that research on the subject is not easy, with access being horribly difficult, and terribly slow and expensive.

The investigation into the thought process of the former Judges of the Supreme Court, who delivered death penalty during their tenures has provided fascinating insights. Of the 86 Judges selected, 60 consented to be interviewed by the Centre.  Those who opted out of the interview, did so due to physical disability or lack of criminal law experience, (even though they adjudicated criminal law cases), and the scope of the interview was not limited to death penalty cases.

Calling the interviews “in-depth and semi-structured”, she said the interviews with individual former Judges took 90 minutes to six hours, depending on their inclination and interest.  Some Judges remembered intimate details of the cases heard by them almost 10 years ago, she said.  They all revealed an emotionally broken criminal justice system, and a disconnect in imposing death sentences, she said.

Although all the former Judges interviewed did not prefer anonymity, the Centre decided to keep them anonymous, to avoid the focus being shifted to individual former Judges. As a result, no quotes have been attributed to any former Judge.

Eight of the former Judges interviewed have been former Chief Justices of India. Of the 60 former Judges interviewed, 47 had adjudicated death penalty cases and confirmed 92 death sentences in 63 cases.

Based on the study, it is not possible to generalise how Supreme Court Judges decide death sentencing, but it is possible to identify some strands, she said.

The doctrine of rarest of rare, articulated by the bench in Bachan Singh, has been so misinterpreted that its meaning depended on what the individual judges thought it was; the legal content of rarest of rare is completely empty, and the judge is free to fill in, she said. The study, she hoped, would help us achieve much deeper understanding of why the former Judges supported or opposed death penalty.


Later, replying to questions from the audience, John referred to the recent Ryan school incident involving the killing of a student for which initially the driver of the school bus was the suspect.  The remand judge showed no application of mind, and probably did not bother to check even the case diary, she said, asking how the first suspect was subsequently released, for want of any evidence, but was subjected to torture during his incarceration.

Did the lawyers representing the first suspect, Ashok, put it to the remand Judges, she asked and said remand proceeding is an important judicial function, but is followed in a mechanical way. She then referred to how the public prosecutors mechanically seek extension of time for investigation from 90 days to 180 days for cases under Unlawful Activities (Prevention) Act (UAP).  “I feel disheartened that not many lawyers oppose such submissions of PPs.  The system is going nowhere”, she said.

Replying to another question, Surendranath said that there is a pretence about criminal law, and there is no consensus about what criminal justice system is. The pretence is about coherence, and cruder impulses like retribution are acknowledged. Liberal philosophy of sentencing is not agreeable, he said.

Concluding, Neetika Vishwanath said drawing a line between personal opinion and the judicial opinion is difficult.  Most Judges interviewed understood death sentence as actual execution, whose number is far less. “They didn’t understand what living under death sentence means”, she regretted.


You can read the entire Report below:

Judges' Opinion Study
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