Mitigating circumstances: Why RG Kar rape case convict was not given death penalty

The Supreme Court has held that a sentence of death should be passed only in the “rarest of rare” cases, after the court has considered possible “aggravating” and “mitigating” circumstances (Bachan Singh v. State of Punjab, 1980).

‘Rarest of rare’ test

In Bachan Singh, the SC considered a challenge to the constitutionality of the death penalty. It upheld the death penalty, but said it should be imposed only in the “rarest of rare” cases where there is no possibility of reformation.

The five-judge Constitution Bench did not specify the standards to determine whether the death penalty should be imposed, but laid down non-exhaustive lists of “aggravating” and “mitigating” circumstances for courts to consider while making the decision.

AGGRAVATING CIRCUMSTANCES, which could tilt the court’s decision towards the death penalty:

* If the murder is pre-planned, calculated, and involves extreme brutality;

* If the murder involves “exceptional depravity”;

* If the accused has been found guilty of murdering a public servant, police officer or a member of the armed forces while on duty, or because of anything they may have lawfully done while discharging their duty.

MITIGATING CIRCUMSTANCES, which could tilt a case away from the death penalty:

* Whether the accused was “under the influence of extreme mental or emotional disturbance” at the time of the offence;

* Age of the accused; they would not be given death if they are very young or very old;

* Probability of the accused posing a continued threat to society;

* Probability of reforming the accused;

* If the accused was acting on the directions of another person;

* If the accused believed their actions were morally justified;

* If the accused suffers mentally and is unable to appreciate the criminality of their actions.

After Bachan Singh

The understanding of mitigating and aggravating circumstances has evolved over the years, and new factors have been added to the list through several decisions. These include:

AGE OF ACCUSED: In several cases including Ramnaresh and Ors v. State of Chhattisgarh (2012) and Ramesh v. State of Rajasthan (2011), the Supreme Court considered the young age of the accused persons (below 30 in these cases) as an indication that they could be reformed.

However, as the Law Commission of India noted in its 262nd Report (2015), The Death Penalty, age as a mitigating factor “has been used very inconsistently”. In Shankar Kisanrao Khade v. State of Maharashtra (2013), the SC split several cases with similar facts into two groups: where age was considered as a mitigating factor, and where age was ignored or considered irrelevant. The court also noted that sentencing in death penalty cases had become “judge-centric”.

In the RG Kar case, the convict Sanjoy Roy is 35 years old.

NATURE OF OFFENCE: In Shankar Khade, the SC said courts should compare the case before them with a pool of cases concerning similar offences before determining the punishment. Otherwise, the court said, applying the “rarest of rare” doctrine would become “subjective”. The Law Commission Report used the example of cases concerning the rape and murder of a young child, and presented examples to show that it “shocks the judicial conscience in some cases, not in others”.

In Machhi Singh v. State of Punjab (1983), the SC held that death could be given in cases where the “collective conscience” of society is so shocked that the judiciary is expected to impose the death penalty.

The Law Commission noted that this decision, and the decisions it influenced in the future, focused only on the circumstances of the crime, and not the circumstances of the criminal and the possibility of reform.

POSSIBILITY OF REFORM: In Bachan Singh, the SC held that the government must prove there is no possibility of reform, and that the presumption would be against such a penalty. In Santosh Bariyar v. State of Maharashtra (2009), the SC said “the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme”.

The Law Commission Report said the requirement for evidence was held as “essential” in Bariyar “for introducing an element of objectivity into the sentencing process”.

Stage of the trial

When should the court consider these circumstances?

In Bachan Singh, the SC said courts must conduct a separate trial after convicting, so that judges can be persuaded why the death sentence should not be imposed.

When should this separate trial take place? In several rulings, the SC has held it can be on the same day; in other cases, it has stressed the importance of a “real, effective and meaningful hearing” during the sentencing hearing in death penalty cases.

In Dattaraya v. State of Maharashtra (2020), the court held that such a hearing did not take place, and that this was a valid reason to commute a death sentence to life imprisonment.

In suo motu proceedings instituted in 2022 (IN RE: Framing Guidelines Regarding Potential Mitigating Circumstances To Be Considered While Imposing Death Sentences), the SC asked whether sentences delivered on the same day as the conviction satisfy the requirement of a meaningful and effective hearing.

It also noted that aggravating circumstances form a part of the record of a case and are always available to a judge, whereas mitigating circumstances are only placed on record after a conviction and before sentencing.

“This”, the Bench said, “places the convict at a hopeless disadvantage, tilting the scales heavily against him”, and referred the case to a larger Bench to create a uniform approach to sentencing hearings in death penalty cases.