Context

• A three-judge Supreme Court Bench comprising Chief Justice of India (CJI) U U Lalit recently referred to a larger Bench (five judge), issues relating to procedural norms for imposing the death sentence owing to conflicting judgments on when and how the hearing related to sentencing must take place.
• The focus here is on reassessing the ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’.
• The decision stands out because of the thrust on the trial court’s death sentencing policies and the practice and desire to elicit, from a larger Bench, directions to ensure some kind of uniformity in the matter.

Background

• The empirical evidence and research findings contained in the ‘ Deathworthy’ report (Project 39A of the National Law University Delhi) found that in 44 per cent of cases it studied, sentencing hearings took place on the same day as the pronouncement of guilt.

More developments

• Varied criteria This order to refer to larger bench is necessitated due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence.
• Enhanced scope: This SC order referring the issue to a larger bench also lists social milieu, the age, educational levels, 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.
• Significance: The intervention is seen as a major step in plugging gaps in the way in which trial courts award the death sentence.
  • This present trajectory of judicial thinking will reaffirm the fundamentals of the rarest of rare principle and lead a new wave of thinking in the jurisprudence around capital punishment.
• Other injunctions: The SC has also initiated a suo motu writ petition (criminal) to delve deep into the issues on key aspects surrounding the understanding of death penalty sentencing.
  • The court is also looking at framing a uniform policy in the form of guidelines for sentencing.

About Capital Punishment

• Capital punishment, commonly known as the death penalty, is the execution of an offender sentenced to death after conviction of a criminal offense by a court of law.
• It is the highest penalty awardable to an offender as an effective deterrent for the worst crimes.
• Capital punishment in India has been limited to the rarest of rare cases- like Section 121 (taking up arms against the state) and Section 302 (murder) etc. of the IPC, 1860.

Judicial view on Death Penalty

• Ediga Anamma case (1974): The Supreme Court (SC) laid down the principle that life imprisonment for the offence of murder is the rule and capital punishment is the exception in certain cases.
  • The Court also stated that a special reason should be given if a court decides to impose a death sentence.
• Bachan Singh case (1980): Supreme Court upheld the constitutionality of capital punishment on the condition that the punishment will be awarded in the “rarest of the rare” cases.
  • It noted that the death penalty should be awarded after seeing the aggravating and mitigating factors and balance of the same.
  • “Rarest of the Rare Cases”: When the murder is committed in an extremely brutal, ridiculous, diabolical, or revolting, manner so as to awaken intense and extreme indignation (anger) of the community.
• Machhi Singh case (1983): SC outlined certain factors that determine whether a case should be considered rarest of rare:
  • Firstly, is the offence committed so exceptional that there is no scope for awarding any other sentence?
  • Secondly, even when weightage is accorded to the mitigating circumstances does the circumstances still warrant death penalty?

Balancing the mitigating and aggravating factors

• Mitigating circumstances: These are arguments that accused persons can present in their defence to avoid death sentences.
  • These circumstances could include mental health problems, trauma in early life, lack of a prior criminal record, or other such instances which might be reasons for the judges to pass a reduced sentence.
  • These are meant to lessen the severity or culpability of a criminal act.
• Aggravating circumstances: It refers to the factors that increase the severity or culpability of a criminal act. Popular aggravating factors involve a long criminal record of the offender or whether the offence inflicted significant harm to the victim.
  • The seriousness of the offence is judged based upon the circumstances of the case such as the gravity of the injury, usage of weapons, repeat offences, hate crimes based on caste, religion, gender, and national origin, intention etc.

Sentencing incongruities

• Court observation: The SC in May 2022, while dealing with appeals against confirmation of the death sentence, has examined sentencing methodology from the perspective of mitigating circumstances more closely.
  • It also held that since aggravating factors are always on record, and would be part of prosecutor’s evidence, leading to conviction.
  • But the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.
  • Thus court opined a necessary clarity in this matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to formal hearing to the accused/convict on the issue of sentence

Future scope of implementation

• The appreciation generated by the bold initiative of the three judge Bench to humanise criminal justice will ultimately depend upon two things.
  • The first is the composition of the larger Bench and the inclination of the judiciary to continue in its onward creative path, as the incumbent CJI.
  • Second, the extent to which society is prepared to broaden the horizons of meaningful hearing, even to the earlier guilt determination stage.

Quality of guilt

• Criminal liability is a product of the component of culpability/guilt and sanction/punishment. The consideration of these two components in isolation leads to a disconnect between the wrongdoer and his punishment/ sentence.
• However, the western critical criminal law scholars who have already begun making a distinction between ‘early guilt’ that is regressive, prosecutory and punitive, and ‘mature guilt’ that is developmental and progressive.

Conclusion

• The focus should be on ensuring certainty of punishment rather than quantum of punishment that will act as a better deterrent for criminals.
• Government should also examine the proposal of the Law Commission 262nd report that recommended for the death penalty to be abolished for all crimes excluding terrorism-related offences and war.
• There is a need to ensure the restoration of peace and prevent future occurrences of crimes by balancing the competing rights of the criminal and the victim. The experience of the Scandinavian countries also supports this view.