Despite the global shift away from the death penalty (see box), there remain a number of countries where the death penalty is retained. In view of the irreversible nature of the death penalty, trials in capital punishment cases must abide by international standards restricting the scope of the death penalty and ensure compliance with the most rigorous standards for a fair trial.
One such standard for a fair trial in capital cases could be a requirement of unanimity amongst judges or jury members on the question of guilt, or even on the issue of punishment. There appears to be a common law practice of commuting a death sentence to that of imprisonment when there is a non-unanimous death verdict. Still, countries differ on whether the accused should be given the benefit of doubt or whether the rule of the majority should prevail.
Consensus towards abolition
As of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.
Though 78 countries retain and use the death penalty, the number of countries which actually execute prisoners in any one-year is much smaller.
One hundred twenty nations decided to establish a permanent International Criminal Court (which came into force in July 2002) to try individuals for the most serious offences of global concern, such as genocide, war crimes and crimes against humanity. Consistent with international human rights standards, the International Criminal Court cannot impose a death penalty but instead can award lengthy terms of imprisonment of up to thirty years or life when so justified by the gravity of the case.
Unanimity of Verdict: The Global Position
Given the abolition of the death penalty in Europe and a number of other nations including Canada, Australia and Mexico, the question of unanimity has been rendered superfluous in these states. A number of other states which continue to award the death sentence require a unanimous verdict by all judges. Even in countries of the Commonwealth that retain the jury system Malta, Ghana, Anguillas, Guyana and the Bahamas a unanimous verdict is essential for a death sentence. Indeed common law follows a strong tradition of commuting a death sentence to life in the case of a non-unanimous verdict.
Though the death penalty is imposed frequently in the United States of America, (more than 900 people have been executed since 1976 and 3500 more await a similar fate), the law is clearly in favour of unanimity. Criminal cases are tried by a twelve member jury and after the landmark judgment in Ring v. Arizona (536 US 584 (2002)), the jurors reserve the power to decide the sentence. No person may be awarded the death sentence except by the unanimous verdict of a twelve member jury (Ch.228, S.3593(e)3 Title 18, Part II US Code). This is the law in criminal as well as federal cases in all 38 states that have retained the death penalty.
In US Martial and Military Tribunal Courts, the Uniform Code of Military Justice notes that a death sentence can only be handed out with unanimity of opinion of a five member panel that tries the case. The panel must agree that no other sentence is more appropriate than death. In addition to such safeguards, the convening authority has the power to reduce but not increase the sentence and set aside a finding of guilt.
The Law Council of Australia has reported that even the Military Commissions set up to try Guantánamo Bay detainees will follow the same procedure and therefore can only unanimously impose the death penalty. Previously, even the Nuremberg and Tokyo war crimes tribunals set up after the Second World War have required unanimity.
(See Law Council of Australia)
In South Asia Nepal, Bhutan, Sri Lanka and the Maldives have abolished the death penalty either in law or practice. However Pakistan and Bangladesh retain the death penalty and follow the majority rule in awarding death sentences. In the Zulfiqar Ali Bhutto case in the Supreme Court of Pakistan in 1977, the seven-judge bench sentenced the former Prime Minister and former President, Mr. Bhutto to death by a majority verdict with four judges in favour of the death sentence.
Death Penalty and Unanimity: The Indian Position
India retains the death penalty through Article 21 of the Constitution of India which allows the State to deprive any person of the right to life provided that it is done by a procedure established by law. Section 53 of the Indian Penal Code (IPC) also lists death as one of the forms of punishment that may be imposed for an offence. However, such power is not arbitrary, and it must conform to prescribed substantive and procedural safeguards, pass the test of reasonableness, and be subject to judicial review. Furthermore this position is not static and has been constantly subject to change by legislative amendment and judicial interpretation.
The original Criminal Procedure Code (CrPC) of 1898 (S.367 ) provided death as the usual punishment for capital offences, requiring judges to provide justification in writing if they passed a sentence of life imprisonment instead. Death Penalty was believed to be the normal punishment and only under extenuating circumstances could life imprisonment be awarded (Rishideo Pandey v. State of U.P., AIR 1954 SC 706). In 1955, however, the 26th Amending Act removed this provision and the extent of punishment was left to the discretion of the court. There was a further shift away from neutrality, when in 1973, the Supreme Court upheld the constitutionality of the death penalty but established that capital punishment should be a narrow exception and not the rule (Jagmohan Singh v. State of U.P., (1973) 1 SCC 20).
In 1977, the Supreme Court further developed the principle establishing life imprisonment as the rule, and death penalty as the exception (Asgar v. State of U.P., AIR 1977 SC 2000). This stand was affirmed in 1980, when it was held that the death penalty should be awarded only in the rarest of rare cases (Bachan Singh v. State of Punjab, AIR 1980 SC 898).
Successive judges have continued to observe that death sentences should be awarded minimally. Thus the judge is required to justify the reasons and place on record the exceptional circumstances that compelled him/her to condemn a person to death. This approach is in agreement with Indias ratification of the United Nations International Covenant on Civil and Political Rights by which India has committed itself to a policy for the abolition of the death penalty, albeit gradually.
Where there are differing opinions of judges with respect to sentencing, S.392 of the CrPC (1973) provides that the rule of majority should be followed. It further states that if judges of a criminal court are equally divided in opinion, the case is to be laid down before another judge of the same court the decision of this judge becoming the final decision of the court.
In practice, courts have previously followed the prevalent common law custom of not imposing the death penalty when appellate judges agree on the question of guilt but differ on that of sentence unless there are compelling reasons (Kalawati and Another v. State of H.P.  SCR 546 and Pandurang, Tukia and Bhillia v. State of Hyderabad  1 SCR 1083). The rationale behind this custom appears to be the final and irreversible nature of the death sentence. Reasonable doubt can be said to be established where despite the evidence put forward, a member of the bench is not convinced of either the guilt of the accused or the necessity of the death sentence in that particular case.
A Constitution Bench of the Supreme Court however refused to raise this custom to the pedestal of a rule as it argued that doing so would essentially mean leaving the sentence to the determination of one judge (Babu and 3 Others v. State of U.P., AIR 1965 SC 1467). It is indeed unfortunate that the Court overlooked the larger requirement of unanimity in favour of the concern that one judge could hold the others at ransom. Thereby the Court overlooked the importance of removing all doubt and safeguarding the fairness of the judicial system.
The Indian Supreme Court had another opportunity to rectify its position, when the case of V. Mohini Giri v. Union of India (2002 AIR SCW 5306) was argued before it in 2002. In this case the petitioner had sought the issuance of a guideline as to what should be the appropriate approach in the cases where one of the judges in the Bench of this Court while hearing an appeal against death sentence, acquits the accused person. The Apex Court declined issuing such a guideline arguing that it would curtail the judicial discretion of the bench.
"The course which this case has taken makes a sad reading. Three persons were sentenced to death by a common judgment and, regretfully, each one has eventually met with a different fate." - Y.V. Chandrachud, (then) Chief Justice of India.
In the case of Harbans Singh v. State of Uttar Pradesh and Others ((1982) 2 SCC 101), three men were convicted of playing an equal role in committing a crime. While Jeeta Singh was executed, the President pardoned Kashmira Singh and initially rejected Harbans Singhs petition.
The unequal treatment of equally situated persons such as these is in violation of Article 14 of the Constitution of India. The Court directed that prior to the actual execution of any death sentence, the Jail Superintendent should ascertain personally whether the sentence of death imposed upon any of the co-accused of the prisoner who is due to be hanged, has been commuted. If it has been commuted, the Superintendent should apprise the superior authorities of the matter, who, in turn, must take prompt steps for bringing the matter to the notice of the court concerned.
(See Columbia study)
Further twelve percent of all persons executed in the US were later found to be innocent in light of newly uncovered evidence (Amnesty International, Facts and figures on the death penalty, April 2004). While there appears to be no similar study on India, it is unarguable that the risk in awarding death sentences is high and therefore caution needs to be exercised by the bench in awarding such a sentence. It is in this context that the requirement of unanimity of the judges could act as a crucial procedural safeguard in all death penalty cases.
Significantly, Military Courts in India have higher safeguards in this respect. While the Armys general court martials do not go as far as requiring unanimity, they do require a two-thirds majority for the award of a death sentence (S.132 of the Army Act, 1950. A similar provision is found under S. 131 of the Air Force Act, 1950). In other forms of court martial (summary court martial etc), an absolute concurrence of members trying the case is required in order to pass the death sentence. The 1950 Navy Act (Section 124) requires four of a five member panel to concur for a death sentence to be passed. Where the panel exceeds five members, at least two thirds must concur.
Throwing caution to the wind? - The case of Devender Pal Singh Bhullar
While the Devender Pal Singh Bhullar case is well documented for the large number of procedural lapses by the Police, the case also highlights the issue of non-unanimity leading to a possible failure of the rule of law.
Devender Pal Singh Bhullar was one of five members of the Sikh separatist organisation Khalistan Liberation Force (KLF) accused in 1993 of involvement in a plot to assassinate the Indian Youth Congress President, M.S. Bitta. Mr. Bhullar was sentenced to death by a Designated Court for offences under the Terrorist and Disruptive Activities (Prevention) Act, on the basis of an uncorroborated confession, while the other co-accused were acquitted for lack of evidence against them. Mr Bhullar maintained that this confession was neither voluntary nor true, but fabricated, and that his signatures had been forcibly obtained on partly written and blank papers.
Suspicion of the investigating authorities and the confession were noted by the dissenting judge, M.B. Shah, in the appeal before the Supreme Court (Devender Pal Singh v. State, N.C.T. of Delhi, (2002) 6 SCC 81). This view was not endorsed by the other two judges, B.N. Agrawal and A. Pasayat, who upheld the trial courts death sentence stating that a voluntary confession required no corroborative evidence and was enough to convict the accused.
Referring to the requirement of proof beyond reasonable doubt as merely a guideline and not a fetish, the majority judgment observed, Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. The judgment further noted, the non-observance [of procedure] does not cause any prejudice to the accused Procedure is handmaid (sic) and not the mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it.
In a recent case under TADA relating to killings in Bara, a village in Bihar, the Supreme Court awarded death penalty to four landless dalit peasants (Krishna Mochi and Others v. State of Bihar, (2002) 5 SCC 203). Significantly, the death sentence was awarded by a 2:1 judgment with the senior-most Judge expressing serious reservations on the quality of investigation and even describing the same as based on false and fabricated evidence.
Lawyers challenged the appeal and the same was clubbed with the review petition of the Bhullar case, both of which were finally rejected by the same bench of the Supreme Court, with Justice Shah expressing dissent again.
The resolution passed at the All India Convention against the Death Sentence Awarded to Five? Landless and Dalit Peasants of Bihar by the Committee against Death Penalty observed, the Death Sentence awarded to four poor dalit peasants for the Bara massacre and one from Bhabua District, is unjust, unfair and ill conceived. In doing so, the judiciary has wished away the context of the oppressive social and economic structure of rural Bihar, shut its eyes to the series of massacres both before and after Bara and has singled out the poor and dalits for the imposition of the extreme and brutal penalty.
In contrast, the dissenting judge, who acquitted the accused of all charges, noted the lack of substantial evidence and discrepancies in procedure, pointed to the involuntary nature of the statement of the accused, and highlighted the unfairness of the sentence due to the acquittal of the other four accused. The use of the majority rule, however, meant that the death sentence was confirmed.
A review petition was filed, firstly, contending an apparent error on the face of record and, secondly, questioning the validity of the imposition of the death penalty taking into account that the senior-most judge of the Supreme Court bench had expressed dissent (Devender Pal Singh v. State, N.C.T. of Delhi, AIR 2003 SC 886). Justice Shahs minority judgment, in this instance, laid down a proper premise for the Bench to review the order of a death sentence if one of the three judges gives a different, and lesser sentence e.g. preferring life imprisonment to capital punishment.
The minority judgment suggested that, such an approach is consistent with Article 21 of the Constitution as it helps saving a human life from the gallows and at the same time putting the guilty accused behind the bars for life. He argued for a sound precedent to be laid down, whereby the dissent of one judge be regarded sufficient to treat the case as not falling within the narrowed ambit of rarest of the rare cases when the alternative option is questionably foreclosed. Once again however, the majority judgment upheld the death sentence.
The Bhullar case remains one of many where death sentences have been awarded despite dissenting opinions on either guilt or punishment. Where judges disagree on guilt of the accused, the dissent may be sufficient to constitute reasonable doubt. Furthermore, dissent on punishment also raises serious concerns about the applicability of the rarest of the rare principle.
With growing international consensus towards abolition of the death penalty, Indias continuation of award of non-unanimous death sentences is equivalent to taking steps backward. Fair and reasonable procedure is a vital safeguard for the enjoyment of human rights more so where people are charged with crimes punishable by death. Under international human rights standards, such accused are entitled to the strictest observance of all fair trial guarantees and to certain additional safeguards.
The requirement of unanimity of judges in imposing death sentences could act as an additional safeguard.
These additional safeguards are not, however, a justification for retention of the death penalty. Amnesty International India calls upon the Government of India to declare a moratorium on all death sentences and commute existing sentences towards eventual abolition of the death penalty in India. Amnesty International India opposes the death penalty in all cases, without reservation, on the ground that it is the ultimate cruel, inhuman or degrading punishment and violates the right to life.