Stuti Rai

This article first appeared in thewire.in and can be accessed here.

A lack of clarity and unguided judicial discretion have led to the current pattern of sentencing failures in death penalty cases in India which the Supreme Court’s reference of the matter to a constitution bench seeks to rectify.

On September 19, 2022, a bench of Justice U.U. Lalit (as he was then), Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia referred to a five-judge constitution bench the question of what amounts to a ‘meaningful, real, and effective’ hearing for an accused when it comes to death penalty sentencing.

With this referral to a larger bench comes an acknowledgement of the abysmal state of death penalty sentencing in India.

The contours of this referral, which will essentially amount to guidelines on sentencing, were last settled by a five-judge bench in 1980 in Bachan Singh versus State Of Punjab. Since then, Indian jurisprudence has been engaged in interpretative exercises centring around the principles for awarding the death penalty; that is, weighing the circumstances of the crime (aggravating factors) and the criminal (mitigating factors), and determining whether the alternative punishment of life imprisonment is ‘unquestionably foreclosed’.

However, this exercise is neither straightforward nor very clear. Reviewing the Supreme Court’s response to  capital sentencing in the past year is a useful tool to understand the various problems with death penalty sentencing law. It also provides immediate context to the referral, which, among other things, reveals a sharp discord in the apex court on critical aspects of death penalty sentencing law. 

In the year leading up to this referral, the Supreme Court converted the death penalty into life imprisonment in eight cases, confirmed it in one case, and granted acquittal in one case. The judges presiding over the three benches that heard these cases were Justice Lalit, Justice Nageswara Rao (retired), and Justice Khanwilkar (retired). Another acquittal was recently granted by the bench presided over by Justice Nazeer, post the referral.

In almost all of these cases, a uniform thread of disapproval was expressed by the Supreme Court regarding the deficiencies in the sentencing exercise that was being undertaken by the courts below. The Court particularly noted the absence of relevant sentencing material on record with strong disapproval. 

It is well-settled in death penalty jurisprudence that the court must consider materials relating to the life of the accused (called ‘mitigating circumstances’) and their probability of reformation. However, in these cases, death sentences were imposed by the trial courts and confirmed by the high courts without material to justify the imposition of the penalty – a pattern plaguing the lower courts of India in general, as per a study done by Project 39A.

Even in the occasional instance where the lower courts took on record a few mitigating circumstances, like the young age of the accused, these were mentioned almost ‘mechanically’ without giving due weightage and context. 

The safeguards and duties instituted by Bachan Singh to ensure the survival of capital sentencing and developed in subsequent cases (see here and here) were seen to be flagrantly violated by all parties to the sentencing hearing at the lower courts. This ranged from the failure of the courts to call for sentencing material, the omission of the state in producing materials indicating that the accused is beyond reform, and the negligence of the defence in not putting forth meaningful information with respect to the accused.

However, beyond this agreement by the Supreme Court on lower courts’ dereliction of duties, three distinct approaches were adopted by the benches to address the deficient sentencing exercises. 

In the course of the hearings before Justice Rao’s bench, the court undertook to remedy the sentencing failure by looking at additional materials produced by the accused on the question of sentence. However, these were limited to sworn statements by the accused’s family members, notes on the life history of the accused and documents relating to activities undertaken by the accused during incarceration. The state was also not called upon to submit any material. 

The bench presided over by Justice Lalit went a step further in curing the sentencing deficiencies. During the pendency of the matters, the bench actively sought materials from the state pertaining to the mental health and conduct of the accused while in prison, including reports from probation officers and independent government psychiatrists and psychologists.

Simultaneously, Justice Lalit’s bench recognised the role of ‘mitigators’ – persons with a background in social sciences who collect information regarding the accused through interviews and fieldwork and analyse it to aid in the sentencing exercise – by allowing them to visit prisoners in jails.

These processes, initially found only in interim orders, were given jurisprudential expression in Manoj versus State Of Madhya Pradesh. The court noted that the death penalty could not be awarded by a court without consideration of materials pertaining to the circumstances of the criminal, and expanded the scope of mitigating factors and information necessary to rule out the probability of reformation. It cast an obligation on the state to produce these materials as well as on the courts to call for the same. Simultaneously, the accused was also empowered with the right to produce their own evidence on sentencing. 

However, a drastically different approach was taken by the bench presided over by Justice Khanwilkar, violently pulling the law in a different direction. The clarity of law provided in Manoj was thus disrupted by the judgement in Manoj Pratap Singh versus State Of Rajasthan. The court did not call for materials itself and proceeded to deny the accused’s request for a psychological evaluation report. Thus, no additional material pertaining to mitigating circumstances was produced.

Instead, the bench reflected: “The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found.”

It is worthwhile to note that in Bachan Singh, which cemented the constitutionality of the death penalty, courts were enjoined to interpret mitigating circumstances ‘liberally and expansively’. In fact, the bidding to courts was that the death penalty may not be granted until life imprisonment was unquestionably foreclosed, which is a direction of inquiry to rule out any redeeming features of the accused.  

Thus, even the Supreme Court is not clear on how to approach death penalty sentencing or the role that mitigating circumstances play in the exercise. The court’s understanding of mitigation is in dire straits, and yet, this is merely a reflection of a larger pattern of sentencing failures. These failures have arisen not only because of lack of clarity in Bachan Singh itself but also due to differing interpretations by the Supreme Court.

In this background, unguided judicial discretion in sentencing exercises has compounded the arbitrariness in death penalty sentencing at all judicial stages. This arbitrariness is evident in the contemporaneous yet distinct approaches of the Supreme Court highlighted above. 

With this reference, the Supreme Court has finally taken up the mantle of addressing the gaps and errors in our sentencing law.

Stuti Rai is a litigation associate at Project 39A, National Law University Delhi. Project 39A was involved in the proceedings which resulted in the reference order.