Procedural norms for the death sentence

In News 

The Supreme Court referred to a larger Bench issue relating to procedural norms for imposing the death sentence. 

Key Points 

• The Supreme Court in its reference stressed that a trial court must take into account “the social milieu, the age, educational levels, whether the convict 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”.
  • The intervention is seen as a major step in plugging gaps in the way in which trial courts award the death sentence.
• In many death cases, an accused person is condemned to the gallows by the trial judge on the same day he or she is convicted of a crime.
  • While the State is given an opportunity to present aggravating circumstances against the accused throughout the duration of a trial, the accused, on the other hand, is able to produce evidence showing mitigating circumstances in their favour, which may spare them the noose, only after their conviction

About Death penalty 

• It is the highest degree of punishment that can be awarded to an individual under specified penal law in force.
• It is a legally backed instrument used by the state to take an individual’s life.

History in India

• During the British raj, there were countless instances of Indians being hanged after trial or even before it. The dawn of Independence brought about a new era in the judicial system of India
• Post Independence, India became a democratic state, and the system of awarding death penalties too changed drastically. 

Constitutional Validity 

• The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences.
• According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so. 

Arguments in favor of Death Penalty:

• In the 35th Report of Law Commission of India (1962), which was presented in 1967, the Law Commission favoured retaining the death penalty in the Indian Judicial System.
  •  It said that maintenance of law and order, absence of any empirical research and other similar factors, “India cannot risk the experiment of abolition of capital punishment”.
• Death punishment serves as a deterrent and a “response to the society’s call for appropriate punishment in appropriate cases”.

Arguments against Death Penalty:

• According to the Amnesty Report,At the end of 2021, more than two thirds of the world’s countries had abolished the death penalty in law or practice 
• In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, judicial abolition of death penalty required .
• Indian society is still far from realising the dream of an equal society.
  • Therefore, merit needs to be given to the case of people who were not raised in a suitable environment and were unable to instil appropriate ideas in their conscience.
• Past Experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions. 

• The poor are most affected: In India,the poors are most affected than the rich 

• The numbers of the uneducated and the illiterate sentenced to death outweigh those who are educated and literate. 
• The legal assistance received by the poor facing serious charges is far from satisfactory. 

Recommendations of Law Commission 

•  The 2015 Law Commission Report on Death Penalty recommended abolition of death sentence except in terror-related cases. 
• The report noted the global trend to be a continuous drop in “active retentionist” countries — over 144 countries have either in law or practice abolished the death sentence.

Supreme court’s Earlier observations 

•  Irfan vs State of Madhya Pradesh: Supreme court faced challenge in case of Irfan vs State of Madhya Pradesh to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.
  • The Court observed that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy. 
  • According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”. 

• Bachan Singh vs State of Punjab (1980
  • The Supreme Court, in its 1980 Bachan Singh vs State of Punjab ruling, laid down the “rarest of the rare” principle in handing out the death penalty.
  • Thus, Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused.
    • The Court  refused to declare the death penalty as unconstitutional.
    • It, nevertheless, tried to reduce the rigour of capital punishment by trying to do away with the indiscriminate use of the penal provisions.

• Ravji vs State of Rajasthan (1995)
  • In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment. 
    • This is diametrically opposite to what was laid down in Bachan Singh.
•  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.

• Recent verdicts
  • The possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021). 

• These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

What happens next?

• In India, at a time when legislation imposing death sentences are increasing, raising the procedural bar in imposing capital punishment is a crucial balance between total abolition and active advocacy of the death sentence.
• The death row debate in India cannot ignore the reality of the structural discrimination against those from a certain caste, class, and religion.
• The case will now be listed before the CJI on the administrative side for orders on listing. A five-judge Constitution Bench will have to be set up to settle the differences in law among several three-judge Bench verdicts.