109
Chhannu Lal Verma), in light of the 262nd Law Commission Report, evolving
jurisprudence, public discourse and international standards of human rights, is
outside the purview of this court’s jurisdiction given the constitutional bench
decision in Bachan Singh, and a question best left for the legislature to critically
consider.
In this backdrop, what this court can do, is try and bolster the
existing sentencing framework. This is possible only by giving true meaning to
the existing guidelines (without falling into the trap of ‘categorising’ crimes that
automatically warrant death penalty). To do so, this court finds it necessary to
lay out certain practical guidelines (elaborated below) that can facilitate
consideration of mitigating circumstances as recognised in Bachan Singh, and
consequently ensure uniform application of this framework.
203. The 262nd Report recognised the paradigm shift, in policy and discourse,
towards a reformative and rehabilitative response to crime, and the development
of jurisprudence such that adjudging a case to be ‘rarest of rare’ was not
sufficient, and special emphasis had to be placed in considering whether the
offender is amenable to reform. Implicit in this shift is the understanding that
the criminal is not a product of only their own decisions, but also a product of
the state and society’s failing, which is what entitles the accused to a chance of
reformation. Thus, making life imprisonment the norm, and death penalty the
exception. In, Lehna v. State of Haryana109 while deciding whether the facts in
that case were appropriate for death penalty, traced this shift in approach:
“14. ..Section 302 IPC prescribes death or life imprisonment as the penalty for
murder. While doing so, the Code instructs the court as to its application. The
changes which the Code has undergone in the last three decades clearly indicate
that Parliament is taking note of contemporary criminological thought and
movement. It is not difficult to discern that in the Code, there is a definite swing
towards life imprisonment. Death sentence is ordinarily ruled out and can only be
imposed for “special reasons”, as provided in Section 354(3). There is another
provision in the Code which also uses the significant expression “special reason”.
It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section
562 of the Criminal Procedure Code, 1898 (in short “the old Code”). Section 361
which is a new provision in the Code makes it mandatory for the court to record
“special reasons” for not applying the provisions of Section 360. Section 361 thus
109 (2002) 3 SCC 76
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