Death Penalty

In News

• The Supreme Court referred to a Constitution Bench on 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.

About

• Considered Mitigation Investigator: Earlier this year, the court, while reducing the death sentence awarded to a Madhya Pradesh man for raping a seven-year-old girl to life imprisonment, had taken on record the report of a mitigation investigator who went into the background of the convict.
• Suo motu Petition: The Supreme court also registered a suo motu petition titled ‘In re-framing guidelines regarding potential mitigating circumstances to be considered while imposing death sentences’ to streamline the process of considering mitigating circumstances in such matters.
• Supreme Court’s stand: 
  • Its latest ruling has highlighted a clear conflict of opinions between some of its earlier decisions on granting hearing in such cases.
  • A uniform approach is needed in granting real and meaningful opportunities to convicts on Death Row as opposed to a formal hearing, to the accused/ convict, on the issue of sentence.
  • The bench pointed out that its May 1980 decision in the Bachan Singh vs State of Punjab case, said the question of what constitutes sufficient time at the trial court stage, in this manner appears not to have been addressed. 
    • This, in the court’s considered opinion, requires consideration and clarity”
    • In the case it had upheld the constitutional validity of death penalty for murder while stating that it will be imposed only in the rarest of rare cases.
  • Machhi Singh vs State of Punjab (1983):
    • In this case , the Court indicated that inadequacy of other punishments could justify the death penalty. 
    • This too negated the humanistic liberalism in Bachan Singh.
  • The suo motu writ petition was initiated by the Supreme Court noticing the lack of a uniform framework in this regard.
• Section 235(2) of the Criminal Procedure Code: 
  • If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 (order to release on probation of good conduct or after admonition), hear the accused on the question of sentence, and then pass sentence on him according to law.

Issues/ Challenges

• Inconsistency in application: 
  • The Supreme Court has repeatedly lamented the inconsistency in application of the Bachan Singh framework.
  • Similar concerns have been expressed by the Law Commission of India (262nd Report).
• Crime-centred 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.
• Arbitrary action: 
  • 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.
  • A study of the 595 death sentences imposed in the last five years shows that this concern is intensifying.
• Sparse sentencing information about the accused is brought before the judges:
  • While the judgement in Bachan Singh did develop a framework, it was a framework that depended on the relevant information brought before the court.
  • But the framework did not have any mechanisms to ensure the actual collection of such information and its presentation before judges.
• It is an empirical reality that the vast majority of death row prisoners are economically vulnerable and very often receive poor legal representation.
  • As a result, they do not have access to professionals and experts with the necessary training and skill sets to undertake the complex exercise of collecting mitigation information.
• There has been no real guidance on how judges must go about assigning weight to aggravating and mitigating factors, and how they should approach weighing one factor against another.

Way Ahead

• There is a necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard.
• It is important to have a separate hearing and necessary to have a background analysis of the accused.
• The entire proceedings should 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 defense team could use the time to collect mitigating factors.

Source: IE