While hearing death sentence appeals since September 2021, the Supreme Court has repeatedly expressed concern over the manner in which trial courts and High Courts have carried out sentencing with very little (relevant) information.

While the Bench headed by Justice L Nageswara Rao has commuted death sentences citing errors committed by courts below, the Bench headed by Justice U U Lalit has called for reports from probation officers, prison superintendents, and independent mental health experts in an attempt to correct the errors. The Bench headed by Justice Lalit agreed to 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.

What has caused the 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. In so doing, the 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?

In May 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.  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. 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.

What has happened to this framework in the four decades since Bachan Singh?

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. 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.

What is the reason for this?

One of the main reasons is that 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.

This has resulted in a situation where there is barely any meaningful information about the accused that enters the sentencing process. It is an empirical reality that the vast majority of death row prisoners is economically vulnerable and very often receive poor legal representation (see Project 39A’s Death Penalty India Report 2016). 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.

Also, sentencing judges have often dismissed the consideration of mitigating factors depending on their perception of the crime despite there being no basis in the law for dismissing the relevance of such factors. It points to a deeper gap — that 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 and 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 individualised, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused. It speaks to a very intuitive sense of justice that all our decisions and actions result from a complex interplay of various factors concerning our lives, and the emphasis is that such interplay is different for each individual.

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.

Who can collect all this information?

The Supreme Court has recognised that it is important to collect this complex interplay of information sentencing is to be done in a proper manner. The judgments in Santa Singh (1976) and Mohd Mannan (2019) have recognised the interdisciplinary nature of such an exercise, and that it requires professionals other than lawyers to collect such information.

The task is not something lawyers are trained to do — that is the reason the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defence Counsel in Death Penalty recognises the role of a mitigation specialist with a clearly defined role that goes beyond what lawyers can do.

Is this practical in India’s justice system?

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. With that as the starting point, the criminal justice system needs to do all it can to ensure that systems are created for procedural fairness.

The question we need to start with is: “What does fairness and individualised justice require in death penalty cases?” We cannot start by asking the “practicality” question and then define the requirements of fairness/ individualised justice accordingly.

Can procedural reforms address the broader concerns with the death penalty?

Justice Harry Blackmun who served on the United States Supreme Court for 24 years (1970-94) started out being a strong votary of the death penalty, and was part of decisions to restore the death penalty in the US. For most of his time on the Bench, Justice Blackmun tried to bring in procedural reforms to make the American death penalty system fairer.

But ultimately, in his last year in the court, he declared that efforts to reform the death penalty had failed, and that it was impossible to achieve the required fairness. “I no longer shall tinker with the machinery of death,” he famously declared.

The paths of reforming the death penalty on the one hand and abolishing it on the other, go alongside each other for a very long distance. Every instance of engagement on reforming the death penalty throws light on the inherent unfairness of using the death penalty, especially in a system like ours.