A Gujarat court on Friday, 18 February, awarded the death sentence to 38 out of 49 convicts in the Ahmedabad serial blasts case. This sentence comes more than 13 years after the blasts swept through Ahmedabad in 2008, killing 56 people.
The death sentence was awarded after the men had been convicted under Section 302 (murder) of the IPC, and Sections 10 and 16(1)(a)(b) of the Unlawful Activities (Prevention) Act.
The remaining 11 convicts were given life imprisonment.
Announcing the death sentence, the court termed the case "rarest of rare".
But what is the doctrine of 'rarest of rare'? And how common is it for such a large number of people to be sentenced to death in the same case?
The Doctrine of 'Rarest of Rare'
Propounded by the Supreme Court in 1980, in Bachan Singh v State of Punjab, the 'rarest of rare' doctrine simply means that the death sentence is an absolute, unique exception.
In keeping with this doctrine, it should only be awarded when life imprisonment is not an option by a far stretch, and there is no alternate remedy available.
There are no hard and fast rules about what constitutes a rarest of rare case. In this instance, for example, the number of people killed and that these were terrorist actions may have been behind the judge's decision, but these are in themselves no guarantee of a death sentence.
Section 354(3) of the Criminal Procedure Code requires 'special reasons' to be stated in case of a death sentence being awarded, so these will be made clear in time – and can also then be challenged on appeal.
How Common is Such a Sentence?
While, two-thirds of the countries of the world have either abolished the death penalty or stopped applying it, India, however, still deems the death penalty constitutionally valid.
It can be awarded under several sections of the IPC (including murder, rape of a child, kidnapping for ransom, and treason), as well as for serious non-IPC offences such as those under the Arms Act and the UAPA.
However, as pointed out by Vibhor Jain, litigation consultant at Project 39A, National Law University Delhi, "It is uncommon to see 38 persons being given the death sentence in a single instance."
Jain also said:
"While a copy of the judgment is awaited, the critical aspect to watch out for will be whether in sentencing 38 people to death in one go, the judge has complied with requirements of the law and various decisions of the Supreme Court."
He further explained that when considering whether such a large number of people should be given the death sentence, the judge, in keeping with the apex court's decisions, "is bound to consider each individual's different roles and impact in the crime (aggravating circumstances), and each individual's different circumstances of education, medical conditions, jail conduct, family and socioeconomic background, young age and legally relevant criminal antecedents, if any (mitigating circumstances)."
"It remains to be seen if the judge considered all of these circumstances for each of the 38 persons sentenced to death," he added.
When are Death Sentences Confirmed?
A death sentence is subject to confirmation by the High Court of the state, and legal options such as appeals are also available to all parties. No execution can take place until all judicial and administrative remedies have been exhausted.
Thus a very large number of death sentences are actually never confirmed.
A 2016 report published by Project 39A showed that over a 15 year period between 2000-2015, for every 100 death sentences imposed by trial courts, less than five (4.9%) were confirmed by the time those cases were decided by the Supreme Court. In 2021 alone, 144 death sentences were awarded by sessions courts, but the Supreme Court confirmed zero, commuted five and acquitted four people that year.
The last execution in India took place in March, 2020, when four Nirbhaya case convicts were hanged to death.
The Essence of Time
Even as conviction and sentencing by the special court, in the Ahmedabad case, came 13 years after the serial blasts, higher courts have often kept time in mind when deciding on appeals in such cases.
Death sentences have been converted to life imprisonment on mere grounds of long periods having lapsed since the date of crime, or even since the date of sentencing.
In State of Uttar Pradesh v Lalla Singh, the apex court observed:
“While we are, unable to say that the learned Sessions Judge was in error in imposing the extreme penalty, we feel that as the offence was committed on 18-6-1971 more than six years ago, the ends of justice do not require that we should confirm the sentence of death passed on the first respondent.”
In State of Uttar Pradesh v Sahai, as well, the Supreme Court observed that the "the murders committed by Sahai were extremely gruesome, brutal and dastardly", but refused to sentence him to death. In doing so, the court pointed out that eight years had elapsed since the occurrence of the offence.
In 2015 the Supreme Court commuted the death sentence of Davinder Pal Singh Bhullar to life imprisonment. Bhullar was on the death row after having been convicted in the 1993 Delhi bomb blasts case, and relief for him came only after a slew of appeals were filed and dismissed, panning two decades. When they finally commuted his sentence, the top court, yet again, cited inordinate delay in deciding Bhullar's mercy plea, along with his mental condition.
"....We deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar into life imprisonment both on the ground of unexplained/inordinate delay of eight years in disposal of mercy petition and on the ground of insanity."Supreme Court
In Shatrughan Chauhan v Union of India, the apex court held that an excessive delay in carrying out a death sentence was an essential mitigating factor in an appeal for commutation. The court further observed that “retribution has no Constitutional value in our largest democratic country” and “that even an accused has a de facto protection under the Constitution".
The top court also relies on several other grounds when converting a death sentence to life imprisonment, including procedural oversight, insanity, and residual doubt.
'The Unacceptable Risk of Executing Innocent Humans': UN, Amnesty Decry Death Penalty
Thus, while it remains to be seen how higher courts respond to the special court's pronouncement in the Ahmedabad Serial Blasts case, the process is likely to be a long and arduous one.
Stating that “the death penalty has no place in the 21st century”, the United Nations has repeatedly called on all countries to either abolish the capital punishment, or at least put a moratorium on its use.
They have pointed out that this form of punishment both undermines human dignity, as well as carries “the unacceptable risk of executing innocent people.”
Dubbing death penalty as the “ultimate cruel, inhuman and degrading punishment”, Amnesty International too has opposed the death penalty in all cases without exception.
The reasons specified by Amnesty for their vehement rejection and condemnation include that this form of punishment is irreversible and mistakes can be made, it does not deter crime, it is discriminatory and that it is often used within skewed justice systems and as a political tool.
Meanwhile, presently there are 403 prisoners on death row in India.
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