Recently, there was a case in US, where a person named Carlos was executed for a crime that he did not commit !!! Sounds incredulous, but Carlos De Luna had to pay with his life for a crime actually committed by one Carlos Hernandez.
Though, not completely identical, we have similar cases in our country as well. The Supreme Court has, till now, declared 13 of its death penalty judgments as per incuriam. The convicts are yet to be hanged. But no corrective actions have been taken.
The judgments by which the Supreme Court had sentenced them to death were declared “per incuriam” by subsequent Benches of the Supreme Court.
per incuriam refers to a judgment of a court which has been
decided without reference to a statutory provision or earlier judgment
which would have been relevant. The significance of a judgment having been
decided per incuriam is that it does not then have to be followed as precedent
by a lower court. The words "per incuriam" mean "by
carelessness or ignoring the statute or the law".
It was in 2009 that the Supreme Court made this admission of error in judgement.
VERY IMPORTANT POINT TO BE NOTED HERE IS THAT, UNDER OUR
CONSTITUTION:-
These 13 convicts will go to the gallows,unless their
sentences are commuted by the President.
to leave these 13 cases under consideration.
As a nation , its our duty to ensure their fundamental\human rights.
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Now let us look at some landmark cases that will make clear, the gross injustice that our courts will perpetrate on these convicts, if they are hanged.
Bachan Singh vs State of Punjab : -
It's a landmark case in the Indian law.
It dealt in detail, with the arguments for the abolition and retention of the capital punishment.
During the discussions, the judges noted that:-
The article 235(2) read with Section 354(3), mandates that
while fixing the degree of punishment for various offences, the
courts should not confine its consideration merely to the circumstances
connected with the crime, but should
also consider the circumstances of the criminal.
Also, Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate for recording of “special reasons.
Ravji @ Ramachandran v\s State of Rajasthan:-
is a case whose judgement was later declared per incurium.
It's a case of flawed judgement.
While deciding the quantum of punishment, it laid emphasis on the gravity of the Crime but not the
Criminal. This was contrary to the binding dictum in Bachan
Singh’s case and hence per incuriam.
Not only, in this case, this approach was taken in atleast 13 other subsequent cases.
Finally, In 2009, in Santosh Kumar Bariyar vs State of Maharashtra, the Supreme Court noted the error.
One very important observation that we must make here is that :-
The law requires that the accused be heard before deciding on the sentence. It is not meant to be an empty formality. Why hear the accused before imposing the sentence if the circumstances of the offender are not germane to the decision making process?
The Bachan Singh judgment has laid down the law clearly and the position was reiterated in Bariyar’s case where there is a candid admission that the cases of these 13 men have been wrongly decided.
As a parting note, I would just like to say that the credibility of our criminal justice system and the constitutional promise of equality before law will suffer a terrible blow if they are executed despite erroneous judgments.
Regards,
Ashish Mishra
