A new track for capital punishment jurisprudence

A recent trend in the development of jurisprudence around the death penalty in India may reset judicial thinking around punishment and may have long-term implications in awarding the death penalty. In the past six months, while dealing with appeals against confirmation of the death penalty, the Supreme Court of India has examined the sentencing method more closely with a view to mitigating the circumstances. Court has also initiated suo moto Writ Petition (Criminal) To take an in-depth look at these issues on the key aspects surrounding our understanding of the death penalty. Thus, it is clear that the current trajectory of judicial thinking will not only confirm the fundamentals of the Rare to Rare Doctrine, but will lead to a new wave of thinking in jurisprudence around the death penalty.

lapse in punishment

A death sentence once awarded by a Court of Session (“conviction court”) is required under law, in particular Chapter 28 of the Code of Criminal Procedure, to be confirmed by a 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 should make a genuine effort to hear the accused on the question of punishment. Bachan Singh Vs State of Punjab (1980), the leading case on this point, calls for balancing aggravating and aggravating circumstances against each other and stipulates that the death penalty should not be awarded unless the option of life imprisonment is “unquestionably Don’t close”. Subsequent cases have evolved into the position of the state (which is the prosecuting agency), which has an obligation to lead the evidence to prove that there is no need for reformation of the accused for the sentencing court to enforce the death penalty. is unlikely. It is also an equally well-established legal principle that at a sentencing hearing, the accused must necessarily be provided with an adequate opportunity to produce any material that may have a bearing on sentencing practice. When the Bachan Singh case is read with proportionate proportions, it is up to the sentencing court and the confirming court to ensure that the question of reformation and rehabilitation of a convicted person is examined in detail for the coming of these courts. Has been. The definite conclusion is that all such options are undeniably closed.

Despite such judicial guidance developed over four decades, studies have shown that when a group of former judges were asked what it considered the rarest of rare cases, the judges gave individual, subjective and differing explanations. A report titled ‘Matters of Judgment’ by National Law University Delhi’s Project 39A (earlier known as “Centre on the Death Penalty”) found that when it comes to awarding the death penalty, no judicial There is no consistency or consistency. In a report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings from a study of death penalty cases in Delhi, Maharashtra and Madhya Pradesh reported between 2000 and 2015 It is learned that the courts have been lax in making assessments. The aspect of correction while carrying out the exercise of punishment.

mitigation check

Based on such studies, the Supreme Court has started examining the method of punishment with great interest. in Rajendra Pralhadrao Wasnik Vs The State Of Maharashtra (2018), the court records material relating to the convict “about his conduct in prison, about his conduct outside the prison, if he is on bail for some time, medical evidence about his mental make-up, contact with him was open to. family and so on”. Mofil Khan Vs State of Jharkhand (2021), stated that “the state is under a duty to acquire evidence to prove that there is no possibility of reform and rehabilitation of the accused” and that “the court shall uncover clear evidence that the guilty Why is it not suitable for any kind of corrective and rehabilitation plan.”

Undoubtedly, the onus is placed on the state to lead the evidence to show that no correction is possible and to satisfy the sentencing courts that a thorough mitigation analysis was carried out before awarding the death sentence. . For a thorough mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals. Taking cognizance of the value of a holistic approach to mitigation investigation, the Court Manoj and others vs State of Madhya Pradesh (2022) directed the State to produce before the court all “reports of all probation officer(s)” relating to the accused and “about the nature of their conduct and acts committed by them while in prison”. “Report. , More importantly, the order also directs that a trained psychiatrist and a local professor of psychology conduct a mental and psychological evaluation of the convict.

suo motu writ petition

On March 29, 2022, a Supreme Court bench headed by Justice UU Lalit (along with Justices S Ravindra Bhat and PS Narasimha) was hearing an interlocutory application filed on behalf of a death row convict, from the project. The permission of the mitigation investigator was sought. 39A should be allowed access to interviews and material relating to the prisoner. While doing so, the Court recorded a set of observations around questions about the mitigating circumstances, the role of a probation officer in assisting the Court, and the potential value addition of a mitigation investigator in 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 the National Legal Services Authority have been sought in the matter; And it is now listed for hearing on May 10, 2022, for consideration of the arguments. At this hearing or soon thereafter, it is expected that guidelines will be drawn up regarding best practices in the death penalty.

Read also | Judges should not be swayed in favor of death penalty: Supreme Court

burden on the courts

Nevertheless, it cannot be denied that there is a new wave of thinking in this hitherto underdeveloped area of ​​punishment, which is a major pillar of judicial work. It is expected that the intervention of the Supreme Court of India in framing the guidelines to incorporate mitigation analysis and consideration on the psycho-social reports of the prisoner at the time of sentencing is timely and necessary. As a result, the onus of awarding and confirming sentencing courts will now be greater in ensuring that no death sentences are manually awarded or routinely confirmed. Entire judicial practice which has culminated in the institution of suo moto The writ petition will only go to strengthen the principle of rare to rare, as laid down in the Bachan Singh case and thus, to restore fairness in the death penalty.

Manuraj Shunmugasundaram is an Advocate of Madras High Court and Spokesperson of Dravida Munnetra Kazhagam.