In hearing death sentence appeals since September 2021, the Supreme Court has repeatedly expressed concern about the way trial courts and high courts have handed down sentences with very little information ( relevant).
While the bench led by Judge L Nageswara Rao commuted the death sentences citing errors made by the lower courts, the bench led by Judge UU Lalit requested reports from probation officers, prison superintendents and independent mental health experts to try to correct the errors. . This week, the Chamber led by Judge Lalit agreed to thoroughly review the proceedings in death penalty cases to ensure that judges who must choose between life imprisonment and the death penalty have information about the sentence.
What prompted the SC to examine death sentencing practices?
The court is undertaking an exercise to reform the procedures by which information needed in a death penalty case is brought to court. In doing so, the Supreme Court acknowledges concerns about the manner in which death sentences are carried out. While the death penalty has been deemed constitutional, the manner in which it has been administered has drawn accusations of injustice and arbitrariness.
How are judges supposed to choose between life and the death penalty?
In May 1980, when the Supreme Court upheld the constitutional validity of the death penalty in the Bachan Singh case, a framework was developed for future judges to follow when faced with the choice between life imprisonment and the sentence of dead. At the heart of this framework was the recognition that the legislator in the Code of Criminal Procedure had made it clear that life imprisonment would be the default sentence and that judges would have to give “special reasons” if they wanted to impose the sentence of dead. Through the 1980 framework – commonly mistakenly referred to as the “rare of the few” framework – the Supreme Court has stated that judges must consider both aggravating and mitigating factors regarding the crime and the accused when they decide whether the death penalty should be imposed.
Newsletter | Click to get the best explainers of the day delivered to your inbox
The judgment also specified that life imprisonment as a sentence should be “indisputably foreclosed” before judges impose the death penalty. There was an indicative list of factors which the judgment identified as relevant, but it was clear that this was not an exhaustive list.
What has happened to this framework in the four decades since Bachan Singh?
The Supreme Court has repeatedly lamented the inconsistency in the application of Bachan Singh’s framework. Similar concerns were expressed by the Law Commission of India (262nd Report). A major concern has been the crime-focused approach to sentencing, often in violation of Bachan Singh’s mandate that factors relating to both the crime and the accused must be taken into account. account. Many people fear that the imposition of death sentences was arbitrary. A study by Project 39A of 15 years of death sentences in trial courts showed that Bachan Singh’s framework has broken down, with judges ascribing multiple and inconsistent meanings to it. A study of the 595 death sentences handed down over the past five years shows that this concern is growing.
What is the reason for this?
One of the main reasons is that very little sentencing information about the accused is presented to the judges. Although Bachan Singh established a framework, it was a framework that depended on the relevant information presented to the court. But the framework did not provide any mechanism to ensure the effective collection of this information and its presentation before the judges.
This has resulted in a situation where there is virtually no meaningful information about the accused that enters the sentencing process. It is an empirical reality that the vast majority of death row inmates are economically vulnerable and very often poorly represented by counsel (see Project 39A’s Death Penalty India Report 2016). Consequently, they do not have access to professionals and experts with the necessary training and skills to undertake the complex exercise of collecting mitigation information.
Further, sentencing judges often discounted consideration of mitigating factors based on their perception of the crime when there was no basis in law for discounting the relevance of such factors. This highlights a deeper flaw – that there has been no real guidance on how judges should assign weight to aggravating and mitigating factors, and how they should approach weighing a factor against to another.
What is attenuation and what are the mitigating factors?
A criminal trial has two stages: the guilt stage and the sentencing stage. Sentencing occurs after the accused has been convicted of the crime; this is the stage where the punishment is determined. Therefore, anything presented or said at sentencing cannot be used to reverse or alter the verdict of guilty.
It is a fundamental principle of criminal law that sentencing must be individualized, that is, in the sentencing process, the judge must take into account the individual circumstances of the accused. It speaks to a very intuitive sense of justice that all of our decisions and actions result from a complex interaction of various factors concerning our lives, and the emphasis is on the fact that this interaction is different for each individual.
The idea of mitigation is to give practical application to the considerations of guilt and merit that are central to the moral idea of punishment. Justice would be an incomplete idea if criminal law were unable to consider an individual in all his complexity and the various factors that contributed to a set of decisions and actions in his life.
Who can collect all this information?
The Supreme Court has recognized that gathering this complex interplay of information is important for proper sentencing. The Santa Singh (1976) and Mohd Mannan (2019) judgments recognized the interdisciplinary nature of such an exercise and the fact that it requires professionals other than lawyers to collect this information.
The task is not something lawyers are trained to do – which is why the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in the Death Penalty recognize the role of a mitigation specialist with a clearly defined role that goes beyond what lawyers can do.
Is it practical in the Indian legal system?
There must be a very high degree of fairness in a system that is concerned with subjecting individuals to the death row experience and ultimately taking lives through the law. With this as a starting point, the criminal justice system must do all it can to ensure that systems are created for procedural fairness.
The question we must begin with is: “What does fairness and individualized justice require in death penalty cases?” One cannot start by asking the “practical” question and then define the individualized fairness/justice requirements accordingly.
Can procedural reforms address broader concerns about the death penalty?
Justice Harry Blackmun, who served on the United States Supreme Court for 24 years (1970-1994), started out as a strong believer in the death penalty and was involved in decisions to restore the death penalty to United States. For most of his time on the bench, Judge Blackmun attempted to introduce procedural reforms to make the US death penalty system fairer.
But ultimately, in his final year in court, he said efforts to reform the death penalty had failed and it was impossible to achieve the required fairness. “I will no longer tinker with the machinery of death,” he said.
The paths of the reform of the death penalty on the one hand and its abolition on the other hand, coexist over a very long distance. Every example of commitment to death penalty reform highlights the injustice inherent in the use of the death penalty, especially in a system like ours.