The death penalty and humanising criminal justice

The goal will depend on the inclination of the judiciary to continue along its creative path and also the extent to which society is prepared to broaden the horizons of meaningful hearing

Updated - October 29, 2022 01:31 am IST

Published - October 29, 2022 12:16 am IST

‘Western law scholars have already begun making a distinction between ‘early guilt’ and ‘mature guilt’’

‘Western law scholars have already begun making a distinction between ‘early guilt’ and ‘mature guilt’’ | Photo Credit: Getty Images/iStockphoto

As a conservative agency of the state, the Supreme Court of India is ordinarily expected to tread the path laid out by the written text of law and the binding precedents. But there do come some exceptional moments when, either because of inspired leadership or the burden of anomalous operations of criminal justice, the agencies feel free to break the shackles that force it to the conservative frame. It must go to the credit of the Chief Justice of India (CJI), Justice U.U. Lalit that as the 49th CJI of India, he has ushered in that rare moment by taking several bold initiatives to correct certain grave anomalies that have persisted in operation of the death penalty law. Even before taking up the office of the CJI, Justice Lalit had displayed unique sensitivity to the plight of the condemned ‘death-row prisoners’ in Anokhilal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022), and impart corrections in the form of creative directions/guidelines. Such a corrective line of judicial decisions under the CJI’s leadership has continued in the Prakash Vishwanath and review petition order in the Mohd. Firoz cases.

The empirical evidence and research findings contained in the Death Penalty India Report (2016) and the Deathworthy’ report(Project 39A of the National Law University Delhi) came in handy to buttress the exceptional sensitivities of Justice Lalit. It is a happy augury that the CJI had the unique opportunity of teaming up with like-minded judges such as Justices P.S. Narasimha, S. Ravindra Bhat, Bela M. Trivedi, and Sudhanshu Dhulia.

On policies and uniformity

The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).

The decision stands out because of the thrust on the trial court’s death sentencing policies and the practice and desire to elicit, from a larger Bench, directions to ensure some kind of uniformity in the matter. Such a reference to a larger Bench would constitute yet another step in the direction of death penalty sentencing justice reform such as the legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; judicial limitation flowing from the ‘rarest of rare’ case; and ‘oral hearing’ after all the remedies to the condemned are exhausted.

Justice Ravindra Bhat’s decision (concurred by the CJI and Justice Dhulia) has summed up the core issue that displays a special concern for the legislative mandate under Section 235(2) conferring a right to pre-sentence hearing after conviction and its endorsement by the full Bench ruling in Bachan Singh; the trial courts and the appellate court’s display of a conflicting patterns of compliances. As an ardent follower of the theory of binding precedents for a cause, Justice Ravindra Bhat did not stop at paying lip service to ‘rarest of rare’ case limitation, but also required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors, as per the full Bench ruling.

Sentencing incongruities

With this foundational background and the context of the wide-spread discrepancies in the interpretation of the law, the following observations of the Court are significant: “It is also a fact that in all cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record, and would be part of [the] prosecutor’s evidence, leading to conviction, whereas 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.” (emphasis supplied). The three-judge Bench decision seems to have gone beyond sentencing incongruities when it observes: “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 formal hearing to the accused/convict on the issue of sentence.” (emphasis supplied).

How is a real and meaningful opportunity to be transformed into reality? What would be the implications of such a ‘real hearing’ limited only to the matters of sentence?

Such questions need answers that must be given by future society. It is significant that the sentencing lacunae pointed out by the three judge Bench have received a positive response from academics and the media. For instance, an editorial in this daily (September 20, 2022) said: “The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to upbringing, education and socio-economic conditions of an offender before deciding the punishment...” Another leading daily, elaborating further on the subjective factors identified in Manoj and Ors. vs State of M.P., said: “trial court must take into account the social milieu, the educational levels, whether the accused had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”.

‘Quality’ of guilt

The euphoria and appreciation generated by the bold initiative of the three judge Bench under the leadership of the CJI might have made a positive mark, but the future shape of the mission to humanise criminal justice will ultimately depend upon two things. The first is the composition of the larger Bench and the inclination of the judiciary to continue in its onward creative path, as the CJI retires on November 8. Second, the extent to which society is prepared to broaden the horizons of meaningful hearing, even to the earlier guilt determination stage. Hitherto, criminal liability is a product of the component of culpability/guilt and sanction/punishment. The consideration of these two components in isolation leads to a disconnect between the wrongdoer and his punishment or sentence. Should the ‘mitigating factors’ influence only the sentence, and not alter the nature and quality of the guilty mind, or the ‘guilt’ that constitutes the stock justification for punishment? How long and at what cost should we continue to ignore the ‘quality’ of the guilty mind of the ‘death row prisoners’ who suffer from severe to mild psychiatric disorders before and after crime (according to empirical evidence in chapter IV of the Deathworthy report?

Also read | Judges mustn’t be swayed in favour of death penalty: Supreme Court

Perhaps, there will be some answers from leads given by western critical criminal law scholars who have already begun making a distinction between ‘early guilt’ that is regressive, prosecutory and punitive, and ‘mature guilt’ that is developmental and progressive. A recent article by Professor Alan Norrie, “Taking Guilt Seriously – Towards a Mature Retributivism” (On Crime, Society, and Responsibility in The Work of Nicola Lacey) has covered the trajectory of criminal justice humanisation succinctly.

B.B. Pande is former Professor of Law, University of Delhi

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