Date: 29/10/2022

Relevance: GS-2: Separation of powers between various organs dispute redressal mechanisms and institutions.

Key Phrases: Death Penalty in India, Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences, Section 354(3), rarest of rare case, mitigating circumstances, Law Commission of India, Bachan Singh’s case

Why in news?

• A three-judge Bench of the Supreme Court has referred to a five-member Constitution Bench on the issue of giving a meaningful opportunity to those found guilty of a capital offense to present mitigating factors and circumstances so that they can better plead for a life term instead of a death sentence.

What does the law say on sentencing?

• The issue arises from the legal requirement that whenever a court records a conviction, it has to hold a separate hearing on the quantum of the sentence.
• Section 235 of the Code of Criminal Procedure (CrPC) says that after hearing arguments, the judge shall give a judgment; and, “if the accused is convicted, the judge shall hear the accused on the question of sentence and then pass sentence”.
  • This process gains significance if the conviction is for an offense that entails either death or life imprisonment.
• Section 354(3) says that when an offense is punishable with death or imprisonment for life, the judgment shall state the reasons for the sentence awarded and if the sentence is death, “special reasons” for the sentence.
• Taken together, these provisions would mean that the sentencing hearing following the conviction of a person for a capital offense is a matter of great importance, as it would decide if the death penalty should be imposed or a life term will be sufficient.
• This would necessarily entail an inquiry into the nature and gravity of the offense and the circumstances in which it took place.

How are judges supposed to choose between life and death sentences?

• In May 1980, when the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case, a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty.
• At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.
• Through the 1980 framework — popularly known as the “rarest of rare” framework — the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
• The judgment also made it clear that life imprisonment as a sentence would have to be “unquestionably foreclosed” before judges imposed the death sentence.
• There was an indicative list of factors that the judge identified as being relevant, but it was clear that it was not meant to be an exhaustive list.

Inconsistency in application:

• The Supreme Court has repeatedly lamented the inconsistency in the application of the Bachan Singh framework.
• Similar concerns have been expressed by the Law Commission of India (262nd Report).
• One of the main concerns has been the crime-cantered approach to sentencing, often in violation of the mandate in Bachan Singh that factors relating to both the crime and the accused have to be considered.
• There has been widespread concern that the imposition of death sentences has been arbitrary.
• A study by Project 39A looking at 15 years of death penalty sentencing in trial courts has shown that the Bachan Singh framework has broken down, with judges attributing to it multiple and inconsistent meanings.

What are mitigating circumstances?

• In ‘Manoj & others v. State of Madhya Pradesh’, the Supreme Court addressed the lack of a legal framework or institutional capacity to handle death penalty sentencing.
• The ruling acknowledged the arbitrariness and subjective patterns in awarding the death sentence.
• Studies also show that largely underprivileged, minorities, and scheduled castes and tribes are awarded the death sentence.
• Death penalty sentence is largely driven by the crime in question and not the circumstances of the accused.
• For example, the Supreme Court’s 1983 ruling in ‘Machhi Singh And Others vs State of Punjab’ introduced “collective conscience” into the capital sentencing framework
• The SC order referring the issue to a larger bench lists social milieu, age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict, and post-conviction conduct, as relevant circumstances that should be accounted for at the sentencing hearing.

What is expected from the reference?

• The Constitution Bench may lay down comprehensive guidelines on the manner in which sentencing decisions can be arrived at.
• It may make it necessary for the trial court to get to know the accused better before passing the sentence.
• Going beyond the reports of jail authorities or parole officers, the courts may draft the help of psychologists and behavioural experts.
• A study into the childhood experiences and upbringing of the accused, mental health history in the family, and the likelihood of traumatic past experiences and other social and cultural factors may be mandated to be part of the sentencing process.
• This may mean that trial courts will be better informed than now when only basic data such as educational and economic status are ascertained before a sentence is imposed.

Conclusion:

• The paths of reforming the death penalty on the one hand and abolishing it on the other, go alongside each other for a very long distance.
• Every instance of engagement in reforming the death penalty throws light on the inherent unfairness of using the death penalty, especially in a system like ours.
• The taking of life through a legal process ought to be very tough and must adhere to the highest standards of fair trial rights and the rule of law.

Source: The Hindu

Mains Question:

Q. Why has the issue of granting a meaningful opportunity to convicts on the question of capital punishment been referred to a five-member Constitution Bench? How will comprehensive guidelines help the sentencing process? Discuss.