Context

In a judgment delivered last month, the Supreme Court, in Manoj & others v. State of MP, embarked on a significant attempt to reform the administration of the death penalty.

Background: Crisis in the death penalty 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).

The framework laid down in the Bachan Singh case

• Take into account factors relating to crime and the accused: This framework made it binding for the sentencing judges to take into account factors relating to both the crime and accused and assign them appropriate weight.
• Judges couldn’t decide to impose the death penalty only on the basis of the crime.
• The background of the accused, the personal circumstances, mental health and age were considerations a sentencing judge had to account for.
• Judges were required to weigh “mitigating” and “aggravating” factors to ascertain if a case was fit for the death sentence and also determine if the option of life imprisonment was “unquestionably foreclosed”.

Why there is a crisis in death penalty sentencing?

• The four decades since Bachan Singh have shown us that this framework has been followed more in breach.
• There is utter confusion across all levels of the judiciary on the requirements of the framework laid down in the Bachan Singh case and its implementation.
• 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.

Significance of the SC judgment in Manoj & others v. State of MP

• Efforts to plug the gap: The judgement identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.
• Recognising reformation: A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.
• Procedural threshold: The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations.
• The verdict recognises that aspects of the accused’s life, both pre-offence and post-offence in prison, are relevant.
• As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts.
• Right of the accused to present mitigating factors: The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.
• Psychological and philosophical aspect taken into account: There is now overwhelming evidence from psychology that criminality cannot just be reduced to terrible decisions by individuals in the exercise of their free will.
• All our actions are a result of a complex web of biological, psychological, and social factors and that understanding has a very significant bearing on discussions on criminality and punishment.

Challenges

• Implementation issue: Apart from this issue of implementation, even if detailed and high-quality sentencing information is to come into our courtrooms, a bigger challenge awaits.
• The judicial treatment of sentencing information is a Pandora’s box that will inevitably have to be opened.
• Requirement for normative basis: The Supreme Court will have to provide a rigorous normative basis for consideration of these factors.
• In the absence of such foundations, death penalty sentencing will continue to be unprincipled and sentencing judges are not going to understand the need for this wide range of sentencing information.

Conclusion

The significance of last month’s judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.

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