Death penalty cases: SC refers key issue to Constitution Bench

Court calls for providing accused a ‘meaningful’ hearing of their mitigating circumstances

September 19, 2022 12:02 pm | Updated 10:25 pm IST - NEW DELHI

Photo used for illustration purpose only.

Photo used for illustration purpose only.

The Supreme Court on Monday referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.

A three-judge Bench led by Chief Justice of India U.U. Lalit said the presentation of mitigating factors by an accused to avoid the “extreme penalty of death” was a “valuable right”.

But in many death cases now, an accused person is condemned to the gallows by the trial judge after a rather “formal” if not cosmetic sentence hearing. Again, in some cases, the sentence hearing happens on the very same day an order of conviction is pronounced against the accused.

While the state is given an opportunity to present aggravating circumstances against the accused throughout the duration of a trial, the accused is given a chance to show mitigating circumstances only after conviction, the court noted.

‘Hopeless disadvantage’

“The accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction… This places the convict at a hopeless disadvantage, tilting the scales heavily against him. This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence,” Justice S. Ravindra Bhat, who authored the judgment, said.

The three-judge Bench said a uniform approach has to be moulded to afford the accused a fair opportunity to present mitigating circumstances at the trial stage before their crime is declared “rarest of rare” and they are sentenced to death.

Significant verdict

The reference to a larger Bench to examine an issue which has affected the fundamental rights of accused in death penalty cases may signal a move from the top court to veer criminal justice system away from death penalty itself. The judgment is significant as it identifies and seeks to resolve a debate on whether the death penalty, though considered a rarest of rare punishment, is being administered casually by the trial courts.

During the hearing, Attorney General K.K. Venugopal had opposed “same-day sentencing”, even suggesting that the entire proceedings be adjourned after the stage of conviction in cases in which a person can be put to death as a form of punishment if found guilty. The defence team could use the time to collect mitigating factors.

As of now, no effort is ever made to dig deeper into a convict’s childhood experiences, multigenerational history of physical and mental health issues, exposure to traumatic events and other familial, social and cultural factors crucial to undertake an individualised sentencing enquiry. Mitigatory circumstances quoted in favour of a convict while sentencing is often basic. These included the convict’s immediate family structure, education and work prior to arrest.

During the hearing, Chief Justice Lalit had mused whether the mitigating circumstances ought to be brought to the attention of the trial court at the very stage of framing charges or even after the conclusion of the prosecution evidence.

The court’s amicus curiae, senior advocate Siddharth Dave, had agreed that the trial judge should take the effort to call for every bit of material or evidence which could be seen as a mitigating circumstance in a death case.

‘Violation of right’

Advocate K. Parameswar, amicus curiae, had said the trial proceedings were conducted in such a way that the dice was always loaded against the accused. He had noted that the prosecution hammered in the aggravating circumstances throughout the trial against the accused while the mitigating factors were hardly heard. This kind of trial, followed by same-day sentencing, violated the right to equality.

“By same-day sentencing you are basically saying the scales of the prosecution’s aggravating circumstances are heavier without giving any opportunity to bring out the mitigating circumstances. That is why same-day sentencing is bad,” Mr. Parameswar had submitted.

Senior advocate Siddharth Agarwal, appearing for Project 39A, a group which works on death penalty cases, had highlighted the need “for a judicial exercise to reach the correct set of parameters to determine whether the state should actually take away somebody’s life or not for what he has done. That is a constitutional imperative which would trump same-day sentencing”.

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