Batla House Case: Is Ariz Khan’s Death Sentence ‘Rarest of Rare’?

The trial court order sentencing Khan to death shows major neglect of established law on death penalty in India.

Ariz Khan alias Junaid, sentenced to death in the Batla House encounter case, being taken to a court by Delhi Police Special Cell personnel.

(Photo: PTI)

On March 15, Additional Sessions Judge Sandeep Yadav imposed the death penalty on Ariz Khan, one of the convicts in the Batla House encounter case. The sentencing order, which runs into 22 pages, exhibits judicial reasoning which neglects established death penalty jurisprudence in India.

On 8 March 2021, Ariz Khan was convicted for the murder of Delhi Police Inspector Mohan Chand Sharma, and seven other offences. A week later, a trial court in Saket sentenced him to death by hanging.

The decision of the sentencing judge not only shows a lack of adherence to the assessment procedures that underlie the ‘rarest of the rare’ doctrine but also exposes the fault lines in the choice of the death penalty as punishment – ambiguity and a susceptibility for retributive clamour in judicial discretion.

Policemen rush to Batla House during the encounter in New Delhi in September 2008.(Photo: PTI) 

Woeful Neglect of Mitigating Circumstances

In Bachan Singh v. State of Punjab, the Supreme Court reiterated that life imprisonment is the rule and the death penalty is the exception. While holding that the death penalty can only be given in ‘rarest of the rare' cases, the court indicated a list of aggravating and mitigating factors that the sentencing court must examine before making a decision on the death penalty.

The list of mitigating circumstances included the young age of the accused, the probability of reform and rehabilitation, lack of recidivism, mental condition, among others.

In Machhi Singh v. State of Punjab, the Supreme Court went on to hold that the sentencing judge has to give full weightage to the mitigating circumstances. The court further reiterated that a just balance has to be struck between the aggravating and the mitigating circumstances. The sentencing judge has an obligation to show with cogent reasons as to why the imposition of a life sentence is completely foreclosed, and there’s no alternative but to impose the death penalty.

In contravention of the law laid down in Bachan Singh, the sentencing judge refused to consider the young age of the convict as a mitigating circumstance. The judge went on to hold that the age of the convict at the time of the commission of crime will not be considered as a mitigating circumstance.

Of the 36 paragraphs in the order, the sentencing judge gave only one paragraph to discussing mitigating circumstances. This not only reflects the inadequate consideration of the convict’s arguments against the death penalty but also the absence of reasons for rejecting them.

In Ajmer Singh v. State of Haryana, the Supreme Court while describing the ‘principle of parity’, held that when the accused’s case is similar in all respects to that of his co-accused, then benefit granted to the co-accused shall also be extended to that accused.

Disregarding for principle of parity, the court imposed death penalty on Ariz Khan, while his other co-accused in this very case have been sentenced to life imprisonment.

Instead of providing reasons for not extending the principle of parity to Ariz Khan, the court relied upon the state’s argument which contended that the convict can’t claim parity with his co-accused as the state has challenged their life sentence before the high court. The state argued that since it has sought enhancement of the sentence given to Ariz’s co-accused before a higher court, the principle of parity can’t be extended to Ariz.

The sentencing judge accepted the state’s argument despite there being no legal precedent or rule on record to suggest that principle of parity can’t be extended when the state has moved an appeal in a higher court.

Senior Advocate Rebecca John told The Quint that when co-convicts with similar roles have been awarded life imprisonment, the sentencing court ought to have sentenced the accused to life imprisonment on grounds of parity. “The sentencing order is bereft of any reasoning justifying the awarding of death on the present accused,” she added.

John further stated that the decision of the trial court is also in breach of sentencing guidelines enunciated by the Supreme Court, where it has been held that unless the option of life is unquestionably foreclosed, a death sentence must never be awarded.

Emphasis on the Crime, Neglect of the Criminal

In the Bachan Singh case, the Supreme Court had made it clear that in matters of sentencing, the nature of crime cannot be the sole deciding factor. The court reiterated that the mandatory requirement of a pre-sentencing hearing introduced in the Code of Criminal Procedure, 1973, made it necessary not only to consider the circumstances of the crime but also those of the criminal.

However, the ‘balancing’ of circumstances in the present sentencing order is unjustly skewed towards the crime. Even while considering the aggravating circumstances, the court has restricted its reasoning to the fact that the convict murdered a police officer. In order to justify this narrow approach, the court has used terms such as ‘enemy of the nation’, ‘terrorist-like’, etc, which are reflective of retributive clamour instead of rule-based decision-making.

“Convict is not only the threat to the society but also an enemy of the state... He has forfeited his right to live.”

Sandeep Yadav, Additional Sessions Judge

In Manoharan v. State Inspector of Police, the dissenting opinion of Justice Sanjeev Khanna is worth examining. He highlighted that as per the Machhi Singh judgment, the sentencing judge must see if there was something “uncommon about the crime” which rendered life imprisonment inadequate and whether the circumstances of the crime were such that there was no alternative but to impose the death sentence.

In the present sentencing order, we find no reasons explaining why the crime committed by Ariz Khan – the act of shooting a police officer – is "uncommon" or "committed with extreme depravity", so as to foreclose the option of life imprisonment; especially when life imprisonment has been imposed as a suitable punishment in the past for cases involving much more heinous crimes such as multiple murders, rape and murder, etc.

Was Possibility of Reformation Considered?

In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, the Supreme Court provided two steps that must be followed to evaluate whether the death penalty would be the appropriate sentence.

a. Identification and balancing of aggravating and mitigating circumstances of both the crime and the criminal to see whether the case would fall under the category of ‘rarest of rare’.

b. Whether the sentencing aim of reformation can be achieved. For this, “the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme”.

In the present sentencing order, as mentioned earlier, just one paragraph is spent in the exercise of balancing the mitigating and aggravating circumstances.

Equally significantly, the sentencing judge provides no evidence to back his conclusion that the idea of reformation is completely foreclosed. The only fact that informs the sentencing judge’s conclusion on reformation is that Ariz Khan had been evading investigating agencies for almost 10 years. While this does qualify as one of the aggravating factors, the court used this out of context as the only evidence to assess whether Ariz Khan holds the possibility to reform or not.

The established jurisprudence on the death penalty puts an obligation on the state to give evidence to show that the convict has lost the propensity to reform. In Chhannu Lal Verma v. State of Chhattisgarh, the Supreme Court strongly emphasised on the importance of the state conducting a psychiatric/psychological assessment of the convict to reach a conclusion on the convict’s propensity to reform.

Contrary to the law laid down in the Chhannu Lal case and the Bariyar case, the sentencing judge has concluded that Ariz Khan can never be reformed without having either his psychiatric/psychological assessment or any other behaviourial report on record. Instead of taking note of the state not producing cogent evidence to back its argument on reformation, the court has blamed the convict for not “showing any evidence during the trial to show his reformation or repentance”.

Death Penalty Vs 'Deterrence'

The procedural flaws in sentencing Ariz Khan to death expose how trial courts indiscriminately and ambiguously decide who gets to live and who deserves to be pushed to the gallows.

A report by Project 39A, a research and litigation centre on death penalty in India, showed that 95 percent of death sentences imposed by the trial courts either get commuted or overturned by the appellate courts.

In the present case, the trial court has justified the imposition of death penalty on Ariz Khan on the ground that it will create “deterrence in society for such crimes”. This observation is unfounded and goes against volumes of research literature which suggests that death sentencing has no direct link with the commission of crime.

Even the Law Commission of India in its 262nd report noted that the “death penalty does not serve the penological goal of deterrence any more than life imprisonment”. In fact, it “fails to achieve any constitutionally valid penological goals”.

While recommending abolition of death penalty for all crimes except the crime of waging war against the state, the Law Commission observed that:

“Extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being arbitrary and freakishly imposed. And there exists no principled method to remove such arbitrariness from capital sentencing.

Law Commission of India

Senior lawyer and human rights activist Indira Jaising, believes that putting to death a convict after several years of delay in trial is cruel and inhuman. Instead, we must explore avenues of reform and other options to the death penalty.

While talking to The Quint, Jaising said that the death penalty surely doesn’t deter crime. She’s of the opinion that we need to focus on abolishing the circumstances that lead to crime, not the criminal.