Reforming Death Penalty


    In News

    • The Supreme Court has suo motu opened a review of the process by which courts award the death penalty.

    India’s justice system

    • Death penalty or capital punishment is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world.
    • Capital punishment in India is a legal penalty for some crimes under the country’s main substantive penal legislation, the Indian Penal Code, as well as other laws.
      • Executions are carried out by hanging.
    • There must be a very high degree of fairness in a system that is interested in subjecting individuals to the experience of death row, and ultimately taking lives through the instrumentality of law.
    • After 1947, India became a democratic state, and the system of awarding death penalties too changed drastically.
      • The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences.
    • Article 21 of the Constitution: which guarantees to every citizen the fundamental right to life, also expressly states, “no person shall be deprived of his life or personal liberty except according to procedure established by law.”

    What was the need for SC to examine practices in death penalty sentencing?

    • The court is undertaking an exercise to reform the procedures by which information necessary in a death penalty case is brought before courts.
    • Supreme Court is acknowledging concerns with the manner in which death penalty sentencing is being carried out.
    • While the death penalty has been held to be constitutional, the manner in which it has been administered has triggered accusations of unfairness and arbitrariness.

    How are judges supposed to choose between life and death sentences?

    • Bachan Singh’s case: In 1980, when the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case, a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty.
    • Stating the reasons: At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.
    • Rarest of rare framework: Through the 1980 framework popularly but inaccurately known as the “rarest of rare” framework the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
    • The judgment also made it clear that life imprisonment as a sentence would have to be “unquestionably foreclosed” before judges imposed the death sentence.
      • There was an indicative list of factors that the judgment identified as being relevant, but it was clear that it was not meant to be an exhaustive list.

    Issues/ Challenges

    • Inconsistency in application: The Supreme Court has repeatedly lamented the inconsistency in application of the Bachan Singh framework.
      • Similar concerns have been expressed by the Law Commission of India (262nd Report).
    • One of the main concerns has been the crime-centred approach to sentencing, often in violation of the mandate in Bachan Singh that factors relating to both the crime and the accused have to be considered.
    • Arbitrary action: There has been widespread concern that the imposition of death sentences has been arbitrary.
    • A study by Project 39A looking at 15 years of death penalty sentencing in trial courts has shown that the Bachan Singh framework has broken down, with judges attributing to it multiple and inconsistent meanings.
    • A study of the 595 death sentences imposed in the last five years shows that this concern is intensifying.
    • Very sparse sentencing information about the accused is brought before the judges.
      • While the judgment in Bachan Singh did develop a framework, it was a framework that depended on the relevant information brought before the court.
      • But the framework did not have any mechanisms to ensure the actual collection of such information and its presentation before judges.
    • It is an empirical reality that the vast majority of death row prisoners are economically vulnerable and very often receive poor legal representation.
      • As a result, they do not have access to professionals and experts with the necessary training and skill sets to undertake the complex exercise of collecting mitigation information.
    • There has been no real guidance on how judges must go about assigning weight to aggravating and mitigating factors, and how they should approach weighing one factor against another.

    What is mitigation, and what are mitigating factors?

    • A criminal trial has two stages:
      • The guilt stage
      • The sentencing stage.
    • Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined.
      • Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.
    • It is a fundamental tenet of criminal law that sentencing must be individualized, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused.
    • The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.
    • Justice would be an incomplete idea if criminal law was incapable of considering an individual in all their complexity and the various factors that contributed to a set of decisions and actions in their lives.

    Suggestions/ Way forward

    • Expert’s opinion: Reports from probation officers, prison superintendents, and independent mental health experts should be called in an attempt to correct the errors.
    • Proper information: Comprehensively examine procedures in death penalty cases to ensure that judges who have to choose between life imprisonment and the death sentence have comprehensive sentencing information.
    • Fairness: The criminal justice system needs to do all it can to ensure that systems are created for procedural fairness.

    Source: IE