Context

• CJI, Justice Lalit had displayed unique sensitivity to the plight of the condemned ‘death row prisoners’ in Anokhi Lal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022) and impart corrections in the form of creative directions/guidelines.

What is capital punishment?

• Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
• It should be distinguished from extrajudicial executions carried out without due process of law.
• The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

Background of capital punishment

• Bachan Singh case: In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
• Punishment according to fair procedure: It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
• Rarest of rare case: This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What is “rarest of rare” case?

• The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’.
• Two prime questions, the top court held, may be asked and answered:
• First: is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
• Second: are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according to maximum weightage to the mitigating circumstances which speak in favor of the offenders?

Why existing guidelines are problematic?

• Arbitrary sentencing: There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity. The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
• Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric. This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).
• Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime the nature of the crime and its brutality are often dominant considerations, and there is barely any consideration of mitigating factors.
• Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.

What are new guidelines through recent judgement?

• Considering Potential mitigating circumstances: The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).
• Seeking remedies beyond Legislative and judicial limitation: Such a reference to a larger Bench would constitute 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.
• Mitigating factors are important: Justice Ravindra Bhat did not stop at paying lip service to ‘rarest of rare’ case limitation, but also required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors, as per the full Bench ruling.
• The following observations of the Court are significant: “It is also a fact that 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.
• Granting real and meaningful opportunity: The three judge Bench decision seems to have gone beyond sentencing incongruities when it observes: “This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to formal hearing to the accused/convict on the issue of sentence.”

Conclusion

• Free, fair and transparent opportunity has been given to accused while awarding the death sentence. Supreme court of India has rightly laid down the guidelines through judgement for sentencing the capital punishment to prevent the arbitrary use and misuse of capital punishment.

Mains Question

Q. What are the issues with death penalty guidelines in India? What are the new guidelines by SC regarding capital punishment?

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