A new track for capital punishment jurisprudence 

A recent trend in the evolution of jurisprudence around death penalty in India may reset the judicial thinking around sentencing and have long-term ramifications in awarding capital punishment. Over the last six months or so, while dealing with appeals against confirmation of death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely. The Supreme Court has also initiated a suo moto Writ Petition (Criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing. As such, it is clear that the present trajectory of judicial thinking is not only reaffirming the fundamentals of the rarest of rare principle but also leading a new wave of thinking in the jurisprudence around capital punishment. 

Historical Jurisprudence and Sentencing Lapses

Capital Punishment once delivered by the Court of Sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”). The development of case laws on the point of sentencing has emphasized that sentencing cannot be a formality and that the sentencing court must make a genuine effort to hear the accused on the question of sentence. Bachan Singh vs. State of Punjab 1980, the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”. Subsequent cases have developed this position to that of the State, which is the prosecuting agency, having the onus to lead evidence to establish that there is no possibility of reformation of the accused for the sentencing court to impose capital punishment. It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise. When read in conjunction with the ratio decidendi of Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.  

In spite of such judicial guidance developed over four decades, studies have shown that when a group of former judges were asked what they considered as a rarest of rare case, they gave personalised, subjective and divergent explanations. A report by National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) found that there is no judicial uniformity or consistency when it comes to awarding death sentence. In the 2016 Death Penalty India Report (also authored by Project 39A), studies showed that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise. It was found that out of 50 prisoners in whose cases the Supreme Court had confirmed the death sentence, the issue of reformation was not considered for at least 34 of them, thereby exposing a systemic methodological deficiency in sentencing.   

New Wave and Mitigation Investigation

On the back of such studies, the Supreme Court has begun to inquire into sentencing methodology with great interest. In Rajendra Pralhadrao Wasnik vs. State of Maharashtra 2018 case, the Court was open to bringing on record material pertaining to the convict “about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on.” Building on this, the Court, in Mofil Khan vs. State of Jharkhand 2021, held that the “The State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused” and that “the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

Undoubtedly, the onus has been placed on the State to lead evidence to show that no reformation is possible and for the sentencing courts to be satisfied that a thorough mitigation analysis was done before death sentence is awarded. For a complete mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals. Taking cognizance of the value of a wholistic approach to mitigation investigation, the Court in Manoj & Ors vs. State of Madhya Pradesh 2022 issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while lodged in the prison. More importantly, the order also directs that a trained Psychiatrist and a local Professor of Psychology conduct a psychiatric and psychological evaluation of the convict.

Suo Moto Writ Petition

On 29 March 2022, a bench of the court led by Justice U.U. Lalit and consisting of Justices S. Ravindra Bhat and P.S. Narasimha were hearing an Interlocutory Application filed on behalf of a death sentence convict seeking permission for a Mitigation Investigator from Project 39A be provided permission to conduct interviews and access material pertaining to the prisoner. While doing so, the court recorded a set of observations around the questions of what may constitute mitigating circumstances, role of a Probation Officer in assisting the court and the potential value addition of a Mitigation Investigator to the sentencing exercise. These observations now form the basis of a suo moto Writ Petition (Criminal) which will be heard separately and comprehensively on these aspects. The views of the Attorney General representing the Union of India as well as those of the National Legal Services Authority have been sought in this matter and this is now listed for hearing on 10 May 2022 for consideration of arguments in this regard. At this hearing or soon thereafter, it is hoped that guidelines around best practices in sentencing of death penalty will be framed. 

Nevertheless, it is undeniably clear that there is a new wave of thinking in this department of sentencing exercise which forms a key pillar of judicial work. The intervention of the Supreme Court of India in, hopefully, framing guidelines around incorporation of a mitigation investigation and consideration of psycho-social reports of the prisoner at the time of sentencing is timely and necessary. As a result, the responsibility of the sentencing and confirming courts will now be greater in ensuring that no death sentence is manually awarded or routinely confirmed. The entire judicial exercise that has culminated in the institution of the suo moto Writ Petition will only go to ensuring that the doctrine of rarest of rare, as laid down in Bachan Singh case, is reaffirmed and scrupulously adhered to. 

Manuraj Shunmugasundaram

Advocate, Madras High Court and Spokesperson, Dravida Munnetra Kazhagam 

Link to the Article: https://www.thehindu.com/opinion/op-ed/a-new-track-for-capital-punishment-jurisprudence/article65389476.ece

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