A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment. Over the last six months or so, while dealing with appeals against confirmation of the death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely. The Court has also initiated a suo motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing. As such, it is clear that the present trajectory of judicial thinking will not only reaffirm the fundamentals of the rarest of rare principle but also lead a new wave of thinking in the jurisprudence around capital punishment.
Capital punishment once delivered by the court of sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”). The development of case laws on the point of sentencing has emphasised that sentencing cannot be a formality and that the sentencing court must make a genuine effort to hear the accused on the question of sentence. Bachan Singh vs State of Punjab (1980), the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”. Subsequent cases have developed this position to that of the state (which is the prosecuting agency) having the onus to lead evidence to establish that there is no possibility of reformation of the accused for the sentencing court to impose capital punishment. It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise. When read in conjunction with the ratio decidendi of the Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.
In spite of such judicial guidance developed over four decades, studies have shown that when a group of former judges was asked what it considered as a rarest of rare case, the judges gave personalised, subjective and divergent explanations. A report by the National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) titled ‘Matters of Judgment’ found that there is no judicial uniformity or consistency when it comes to awarding the death sentence. In the report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings reported from a study of cases involving death sentencing between 2000 and 2015 in Delhi, Maharashtra and Madhya Pradesh have showed that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise.
On the back of such studies, the Supreme Court has begun to inquire into sentencing methodology with great interest. In Rajendra Pralhadrao Wasnik vs The State of Maharashtra (2018), the Court was open to bringing on record material pertaining to the convict “about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on”. Building on this, the Court, in Mofil Khan vs State of Jharkhand (2021), held that the “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused” and that “the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”
Undoubtedly, the onus has been placed on the State to lead evidence to show that no reformation is possible and for the sentencing courts to be satisfied that a thorough mitigation analysis was done before the death sentence is awarded. For a complete mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals. Taking cognisance of the value of a holistic approach to mitigation investigation, the Court in Manoj & Ors vs State of Madhya Pradesh (2022) issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while in prison. More importantly, the order also directs that a trained psychiatrist and a local professor of psychology conduct a psychiatric and psychological evaluation of the convict.
Suo motu writ petition
On March 29, 2022, a Bench of the Supreme Court led by Justice U.U. Lalit (along with Justices S. Ravindra Bhat and P.S. Narasimha) was hearing an interlocutory application filed on behalf of a death sentence convict seeking permission for a mitigation investigator from Project 39A be provided permission to conduct interviews and access material pertaining to the prisoner. While doing so, the Court recorded a set of observations around the questions of what may constitute mitigating circumstances, the role of a probation officer in assisting the Court and the potential value addition of a mitigation investigator to the sentencing exercise. These observations now form the basis of a suo motu writ petition (criminal) which will be heard separately and comprehensively on these aspects. The views of the Attorney General representing the Union of India as well as those of the National Legal Services Authority have been sought in this matter; and this is now listed for hearing on May 10, 2022 for consideration of arguments. At this hearing, or soon thereafter, it is hoped that guidelines around best practices in death penalty sentencing will be framed.
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Onus on courts
Nevertheless, it is undeniable that there is a new wave of thinking in this hitherto underexplored domain of sentencing, which forms a key pillar of judicial work. The intervention of the Supreme Court of India in, hopefully, framing guidelines around incorporation of a mitigation analysis and consideration of psycho-social reports of the prisoner at the time of sentencing is timely and necessary. As a result, the responsibility of the sentencing and confirming courts will now be greater in ensuring that no death sentence is manually awarded or routinely confirmed. The entire judicial exercise that has culminated in the institution of the suo motu writ petition will only go to strengthening the doctrine of the rarest of rare, as laid down in the Bachan Singh case and, thereby, reinstating fairness in the death penalty sentencing exercise.
Manuraj Shunmugasundaram is Advocate, Madras High Court, and Spokesperson, Dravida Munnetra Kazhagam