Lessons From The Law
Author is Senior lecturer at KCEF Law College Pulwama
The Supreme Court has ruled that all courts must consider pre- and post-
crime conduct of a convict to ascertain mitigating grounds to avoid imposition of the capital punishment, in what marks another milestone on the meandering judicial journey since the 1980s towards virtual abolition of death penalty. Through this ruling, a bench of Justices U U Lalit, S R Bhat and Bela M Trivedi commuted the death sentences of three youth convicted for sensational and grotesque murders of three defenceless women in Indore in 2011 to 25 years in jail. The court did so considering their good conduct in jail – one becoming jail cricket team captain and starting to take interest in his own family; second one turning into a voluntary health worker in jail and the third, a woman, excelling in embroidery.
The commutation of the death sentence was ordered by the SC despite it being shocked by the nature of the crime and the diabolical manner in which it was committed. “To have killed three generations of women from a family is without a doubt, grotesque. The manner of the offence was also vicious and pitiless… the stab wounds were extensive – ranging across the bodies of the victim… The crime in itself, could no doubt be characterised as ‘extremely brutal, grotesque, diabolical, revolting or dastardly’, so as to arouse intense and extreme indignation of the community.”
Yet, in the judgment authored by Justice Bhat, the SC said, “There is urgent need to ensure that mitigating circumstances (which would persuade a court not to impose death penalty) are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.”
In laying down additional guidelines for courts to consider mitigating circumstances, the SC intended to minimise, to the maximum extent possible, imposition of death penalty and give convicts a chance to reform and be part of
The society after serving out life term. The process of evaluating mitigating circumstances began with two judgments – Bachan Singh in 1980 which restricted death sentence to ‘rarest of rare cases’ and Machhi Singh in 1983.
The SC’s Friday verdict puts onus on the judiciary to look for a convict’s ‘reformative’ qualities. This further limits the possibility of imposition of death penalty, which in the 1980s got restricted to only rarest of rare cases. Significantly, with this judgment, the SC moves away from its earlier stringent stand that courts must hear the society’s cry for justice in cases of heinous crimes and award commensurate punishments.
This also brings clarity on the complex issue of ‘what should be construed as mitigating circumstances’, the fulcrum on which a court decides whether or not to award death penalty, in the absence of clear-cut guidelines. Between 2010- 2020, the SC made attempts to collate a mosaic of guidelines laid down in different judgments dealing with death sentence cases.
Justice Bhat said, “An overall analysis of capital punishment cases decided by the apex court will perhaps reflect that that there is in fact, no pattern… The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singh test.”
“As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation. These guidelines may also offer guidance or ideas, that such a legislative framework could benefit from, to systematically collect and evaluate information on mitigating circumstances,” the SC said.
It said, “The state, must – for an offence carrying capital punishment – at the appropriate stage, produce material which is preferably collected beforehand, before the sessions court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors.”
The SC said for the trial court to evaluate the mitigating circumstances, which would dissuade imposition of death sentence, the state must make available at the time of sentencing following information about the convict: “age of the convict; early family background (siblings, protection of parents, any history of violence or neglect); present family background (surviving family members, whether married, has children, etc.); type and level of education; socio-economic background (including conditions of poverty or deprivation, if any); criminal antecedents (details of offence and whether convicted, sentence served, if any); income and the kind of employment (whether none, or temporary or permanent etc); other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc.” “Lastly, information regarding the accused’s jail conduct and behaviour, work done, activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities,” the SC said.
It ordered that if the appeal against death sentence is heard after a long gap, the HC must seek a fresh report from jail authorities for exact and complete understanding of the contemporaneous progress made by the accused, including, a fresh psychiatric and psychological report which would further evidence the reformative progress, and reveal post-conviction mental illness.
