SC’s Observations on Death Penalty in India

In Context 

• Recently, the Bench of the Supreme Court of India decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts. 

Supreme court’s 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):
  • In this case the Constitution Bench suggested a humane and reformist framework in the matter. 
  • It said that the gallows could be resorted to only in the rarest of rare cases, that too when “the alternate option is unquestionably foreclosed”. 
    • 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.

• Several other cases also were decided by ignoring the Bachan Singh doctrine, as noted by the Supreme Court itself in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011). 
• 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.

 Indian Scenario and  Issues linked to them

• 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 judgement of the top court in Kedar Nath Singh vs State of Bihar (1962) is a case in point. 
  • The Supreme Court endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) with a rider that it could be invoked only when there is an incitement to violence. 
  • But the state seldom acts based on interpretation of the law. 
  • Many were booked for the charge of sedition since then for mere words, innocent tweets or harmless jokes

• 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. 
  • Lack of proper defence results in conviction. And in the matter of sentencing too, the mitigating factors are either not placed before the trial court or not persuaded adequately to convince the trial judge to avoid the death penalty. 
• There is a marked contradiction between the Indian legal plutocracy and the marginalised.

Way Forward

• Trial judges should not be swayed in favour of death penalty merely because of the dreadful nature of the crime and its harmful impact on the society.
  •  They should equally consider the mitigating factors mitigating factors before arriving at a conclusion that the option of any other punishment than the capital one was foreclosed
• Other options 
  • Judiciary has other options to death penalty
    • These could include life imprisonment without remission or premature release, particularly while dealing with heinous crimes. These are midway approaches devised through the delicate balancing of the judicial process in cases involving heinous crimes.
• Lessons from history  
  • The judiciary needs to learn a lot from history.
    • Past judicial errors will have to be kept in mind while the Court revisits the issues related to mitigating factors and individual-centred sentencing policy in the Irfan case. 

• The Supreme Court will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.  

• There is a need to shift the focus from a punishment-centric approach to a reform-centric approach so that instead of being hardened, there is hope for a criminal to return and get absorbed in society.
• The Bench indicated the need for mitigation experts to assist trial courts in reaching a correct conclusion on whether one should be sent to the gallows or not.
• Recent developments can alter India’s death penalty jurisprudence, by a comprehensive examination of the multi-disciplinary wisdom relating to the crime, the criminal, and the punishment.

Source:TH