through aggravating and mitigating circumstances
came up for consideration in Swamy Shraddananda
(2) v. State of Karnataka. On a review, it was
concluded in para 48 of the Report that there is a
lack of evenness in the sentencing process. The
rarest of rare principle has not been followed
uniformly or consistently. Reference in this context
was made to Aloke Nath Dutta v. State of W.B.
which in turn referred to several earlier decisions to
bring home the point.
31. The critique in Swamy Shraddananda was
mentioned (with approval) in Santosh Kumar
Satishbhushan
Bariyar
v. State
of
Maharashtra while sharing this Court's “unease and
sense of disquiet” in paras 109, 129 and 130 of the
Report. In fact, in para 109 of the Report, it was
observed that: (Bariyar case)
“109. … the balance sheet of aggravating
and mitigating circumstances approach
invoked on a case-by-case basis has not
worked sufficiently well so as to remove the
vice of arbitrariness from our capital
sentencing system. It can be safely said
that the Bachan Singh threshold of
‘the rarest of rare cases’ has been most
variedly and inconsistently applied by the
various High Courts as also this Court.”
32. It does appear that in view of the inherent
multitude of possibilities, the aggravating and
mitigating circumstances approach has not been
effectively implemented.
33. Therefore, in our respectful opinion, not only
does
the
aggravating
and
mitigating
circumstances approach need a fresh look but the
necessity of adopting this approach also needs a
fresh look in light of the conclusions in Bachan
Singh. It appears to us that even though Bachan
Singh intended
“principled
sentencing”,
sentencing has now really become Judge-centric
as
highlighted
in Swamy
20
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