New Delhi: Justice Ranjan Gogoi of the Supreme Court, in line to become Chief Justice of India in October 2018, has expressed serious reservations about the sentencing policy followed by judges.
“For the same offence, the sentence awarded could be six months or six years. It is all rule of thumb”, he observed, while hearing the review petition of B.A. Umesh, a death-row convict, who was sentenced for the offence of rape and murder.
Umesh’s death sentence was confirmed and his review petition dismissed by the Supreme Court in 2011. His mercy petition was rejected by the president on May 12, 2013. Subsequently, his plea for open court hearing of his review petition was granted by the Supreme Court. Currently lodged in Belgaum Central Prison, Karnataka, he has already completed nearly 17 years in prison.
On Monday, the counsel for the registrar general of the Karnataka high court, Anitha Shenoy, submitted before the bench headed by Justice Gogoi, and also comprising Justices Prafulla C. Pant and A.M. Khanwilkar, that Umesh deserved no mercy because he was convicted on the basis of unimpeachable evidence, and as many as eight judges, including the trial court judge, have found his offence the ‘rarest of rare’.
After the trial court verdict went against Umesh, two high court judges differed over his sentence, while agreeing that his offence was rarest of rare. The judge who was reluctant to impose the death sentence on him, reasoned that life sentence would be harsher than death.
The case was then decided by the third judge, who confirmed his death sentence. Subsequently, two Supreme Court judges also confirmed his death sentence. The same two judges also rejected his review petition in their chambers.
Justice Gogoi told the counsel that the offences of rape and murder do occur and, therefore, they cannot constitute rarest of rare offences, simply because they are committed by the same accused in succession. ‘Would we need something more to make the offence a rarest of rare offence?’, he asked the counsel.
Justice Gogoi then asked the counsel to respond to the two mitigating circumstances in Umesh’s favour: he was just 29 at the time of commission of the offence, and he spared the life of the seven-year old boy of the deceased, who was a witness to the crime.
Put in this context, Justice Gogoi expressed his dissatisfaction with the court’s sentencing policy, and asked the counsel to examine the sentencing policy followed in other countries. “I suggest this not for the purposes of deciding this case, but may be one can write an article. Perhaps other countries too face the same problem like us. How do you interpret the words “may extend to” and “shall not be less than” used while prescribing the sentence for some offences?,” he asked.
When the counsel said 29 years cannot be construed as a young age, and therefore, a mitigating factor, Justice Gogoi responded by saying being young cannot be equated with the age of a juvenile either.
While the counsel laid stress on Umesh’s incapacity for reform because of his repetitive offences, Justice Gogoi appeared to favour the idea proposed by a previous bench that mitigating circumstances in favour of the convict must be nil, before the rarest of rare test is applied.
While the bench has reserved its verdict in this case, Justice Gogoi’s observations on sentencing policy assume significance, especially in the context of the recent trend among Supreme Court judges to quantify the life sentence as an alternative to the death sentence.
As Umesh has already completed about 17 years imprisonment, he will be eligible for remission if Justice Gogoi’s bench merely confirms his life sentence, and sets aside his death sentence. In order to keep him in prison for a few more years, the bench has to quantify his life sentence, and declare it beyond the remission powers of the state government. While life sentence means the entire remaining life of the convict, the quantification will apply to the period when the state government cannot exercise its remission powers, even after the statutory period of 14 years.
On September 16, another three-judge bench found this sentencing policy innovative, and followed it while altering the death sentence of a convict, sentenced for rape and murder of a child, to imprisonment for 25 years without remission.
Justice Gogoi bench’s judgment in Umesh’s case is expected to carry this debate on quantifying the life sentence – as an alternative to the death penalty – further.