[Editorial] Supreme Court on Death Sentence

What is the situation in India?

Norms:

The Supreme Court had set salutary norms that the death penalty is to be imposed only in the ‘rarest of rare’ cases.
Subsequent judgements further established this principle by holding that an offence’s gruesome nature isn’t the sole criterion for deciding its categorization as a ‘rarest of rare’ case. Other key factors that influence the decision include the offender’s socio-economic background, state of mind, etc.
In practice, the sentencing is done after the court records the conviction. This is often done on the same day as the verdict, as only limited arguments are heard on mitigating circumstances (from convict’s side) and aggravating circumstances (from prosecution’s side).
Such same-day sentencing has been upheld by multiple judgements. The apex court has held that where a meaningful opportunity has been offered to the convict to present mitigating factors, the mere fact that the death sentence is being awarded on the same day wouldn’t vitiate the sentence.
However, present thinking is favouring the courts’ eliciting reports from probation officers, jail authorities and trained psychologists to assess the factors that may disfavour the imposition of death penalty.

Issues:

Structural discrimination, in terms of caste, class and religion, has found its way into death penalty. According to a 2016 study of 385 death row prisoners, conducted by Project 39A (criminal reforms advocacy group)
- 76% of such prisoners belonged to SC, ST, OBCs or religious minorities
- More than 3/4^th of the prisoners were from economically vulnerable section
- More than 62% of the prisoners hadn’t completed their secondary school
These prejudices are prevalent in the larger criminal justice system too, but capital punishment extends this to an irrevocable and final state of punishment.
Another Project 39A study, conducted in 2020, covering trial court judgements show that:
- Of the 80 death sentences handled by Delhi trail courts between 2000 and 2013, more than 60% resulted in acquittals or the High Court commuting the sentences.
- 72% of all the Delhi trial court cases that involved award of the death penalty, between 2000 and 2015, cited ‘collective conscience of the society’ as an influencing factor.
This finding points to the trial courts’ flag-waving approach in awarding death sentence.

What is the recent initiative of the SC?

Recently, a 3-Judge bench led by CJI U U Lalit took up a suo motu case and referred it to a 5-Judge Constitution bench. This case concerns the framing of uniform guidelines for trial courts to grant ‘real and meaningful opportunity’ on the sentence issue to those convicted for crimes punishable with death penalty.
The court acknowledged that the prevalent practice tilts the scale heavily against the convicts and puts them at a hopeless disadvantage.
The court, in its reference, stressed the need for trial courts to account for several factors, while considering the imposition of death penalty, like:
- Social milieu
- Age
- Educational levels
- Whether the convict had been traumatized earlier in life
- Family circumstances
- Psychological evaluation
- Post-conviction conduct
The court has also raised the question of which stage the mitigation factors are to be presented. Currently, as the convicts are able to speak of the mitigating factors only after the conviction, they are put at a disadvantage. On the other hand, the prosecution starts presenting the aggravating factors from the beginning of the case itself.

What is the way ahead?

The Supreme Court’s decision to frame uniform guidelines for trial courts with regards to death sentencing is a welcome move and a huge step towards humanizing the process.
This scrutiny of the procedural fairness comes 42 years after the top court, in the Bachan Singh case, introduced the ‘rarest of rare’ safeguard.
The 2015 Law Commission Report on Death Penalty recommended doing away with death sentence, except in terror-related cases.
According to the report, more than 144 countries have abolished death penalty- either in law or in practice- indicating a globally declining trends in ‘active retentionism’.
Meanwhile, there is an increase in legislations imposing death penalty in India. Hence, raising the bar in imposing death sentence is a crucial step to balance between total abolition of death sentence and its active advocacy.
The Constitution Bench is expected to frame guidelines under which the courts can hold comprehensive investigation of various factors before sentencing.

Conclusion:

The recent case is an important opportunity in bringing consistency in sentencing and in ensuring that convicts facing death penalty get a fair, humane and just hearing. This is crucial for its about life and death.