Death Penalty and Humanising Criminal Justice

Context

Justice U.U. Lalit, the 49th CJI of India, has taken several bold initiatives to correct certain grave anomalies that have persisted in operation of the death penalty law.

Key Points

• Efforts of CJI:
  • Even before taking up the office of the CJI, he had displayed unique sensitivity to the plight of the condemned ‘death-row prisoners’ in:
    • Anokhilal vs State of M.P. (2019), 
    • Irfan vs State of M.P., 
    • Manoj and Ors vs State of M.P. (May 2022)
  • He imparted corrections in the form of creative directions/guidelines. 
    • Such a corrective line of judicial decisions under the CJI’s leadership has continued in the Prakash Vishwanath and review petition order in the Mohd. Firoz cases.
• Reports and Evidence:
  • The Death Penalty India Report (2016) and the ‘Deathworthy’ report (Project 39A of the National Law University Delhi) came in handy. 
• Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences:
  • It needs to be reframed, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).
  • 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. 
  • It will be yet another step in the direction of death penalty sentencing justice reform such as:
    • The legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; 
    • Judicial limitation flowing from the ‘rarest of rare’ case; and 
    • ‘Oral hearing’ after all the remedies to the condemned are exhausted.
• Major Concerns:
  • A special concern for the legislative mandate under Section 235(2) conferring:
    • A right to pre-sentence hearing after conviction and 
    • Its endorsement by the full Bench ruling in Bachan Singh; 
    • The trial courts and the appellate court’s display of conflicting patterns of compliances. 
• Aggravating Circumstances: 
  • In all cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecutor’s evidence, leading to conviction. 
  • Whereas 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.” 

Death Penalty

• About:
  • Death penalty or capital punishment is the highest degree of punishment that can be awarded to an individual under specified penal law in force.
  • It is a legally backed instrument used by the state to take an individual’s life.
  • It has been in existence since the inception of the State itself.

• History in India:
  • During the British raj, there were countless instances of Indians being hanged after trial or even before it. The dawn of Independence brought about a new era in the judicial system of India
  • Post Independence, India became a democratic state, and the system of awarding death penalties too changed drastically. 
• Constitutional Validity: 
  • 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.
  • According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so.

Arguments in favor of Death Penalty

• In the 35th Report of Law Commission of India (1962), which was presented in 1967, the Law Commission favoured retaining the death penalty in the Indian Judicial System.
  • It said that maintenance of law and order, absence of any empirical research and other similar factors, “India cannot risk the experiment of abolition of capital punishment”.
• Death punishment serves as a deterrent and a “response to the society’s call for appropriate punishment in appropriate cases”.

Arguments Against Death Penalty

• Not a Norm Anymore: According to the Amnesty Report, at the end of 2021, more than two thirds of the world’s countries had abolished the death penalty in law or practice.
• Avoiding Judgmental Error: In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, judicial abolition of death penalty required.
• Preventing Misuse or Overuse: Past Experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.

• Poor Most Affected: In India, the poors are more affected than the rich. It is an empirical reality that the vast majority of death row prisoners are economically vulnerable and very often receive poor legal representation.
• Promoting Equal Society: Indian society is still far from realising the dream of an equal society. Therefore, merit needs to be given to the case of people who were not raised in a suitable environment and were unable to instil appropriate ideas in their conscience.

Supreme Court’s Earlier Observations 

• Irfan vs State of Madhya Pradesh: 
  • Supreme court faced challenge in case of Irfan vs State of Madhya Pradesh to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.
  • The Court observed that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy. 
  • According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”. 

• Bachan Singh vs State of Punjab (1980)
  • The Supreme Court, in its ruling, laid down the “rarest of the rare” principle in handing out the death penalty.
  • Thus, Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused.
    • The Court  refused to declare the death penalty as unconstitutional.
    • It, nevertheless, tried to reduce the rigour of capital punishment by trying to do away with the indiscriminate use of the penal provisions.

• Ravji vs State of Rajasthan (1995)
  • In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment. 
  • This is diametrically opposite to what was laid down in Bachan Singh.
•  Machhi Singh vs State of Punjab(1983)
  • In this case , the Court indicated that inadequacy of other punishments could justify the death penalty. 
  • This too negated the humanistic liberalism in Bachan Singh.

• Recent verdicts:
  • The possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021). 

• These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

Challenges before Courts

• 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).
• 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.
• Sparse Sentencing Information: There is no mechanism to ensure the actual collection of correct information and its presentation before judges. 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.

Way Ahead

• New Guidelines for Comprehensive Investigation: 
  • The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to upbringing, education and socio-economic conditions of an offender before deciding the punishment”. 
• Considering All Relevant Factors: 
  • The subjective factors identified in Manoj and Ors. vs State of M.P., said: “trial court must take into account the social milieu, the educational levels, whether the accused had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”.
• Humanising Criminal Justice: 
  • The future shape of the mission to humanise criminal justice will ultimately depend upon two things. 
    • The composition of the larger Bench and the inclination of the judiciary to continue in its onward creative path. 
    • The extent to which society is prepared to broaden the horizons of meaningful hearing, even to the earlier guilt determination stage.