Meaningful chance to those on Death Row: Supreme Court refers case to 5-judge bench

Recalling the court’s earlier rulings on the issue of death sentence, the bench said: “The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing”.

“What is conspicuously absent is consideration and contemplation about the time this may require. In cases where it was felt that real and effective hearing may not have been given (on account of same day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material, and thus fulfilling the mandate of Section 235(2),” said the bench.

Section 235(2) of the Criminal Procedure Code says that “if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 (order to release on probation of good conduct or after admonition), hear the accused on the question of sentence, and then pass sentence on him according to law”.

The bench, however, pointed out that its May 1980 decision in the Bachan Singh vs State of Punjab case – wherein it had upheld the constitutional validity of death penalty for murder while stating that it will be imposed only in the rarest of rare cases – said “the question of what constitutes ‘sufficient time’ at the trial court stage, in this manner appears not to have been addressed…” and “this, in the court’s considered opinion, requires consideration and clarity”.

Earlier this year, the court, while reducing the death sentence awarded to a Madhya Pradesh man for raping a seven-year-old girl to life imprisonment, had taken on record the report of a “mitigation investigator” who went into the background of the convict.

The top court also registered a suo motu petition titled ‘In re-framing guidelines regarding potential mitigating circumstances to be considered while imposing death sentences’ to streamline the process of considering mitigating circumstances in such matters.

Referring to this, the bench said in Monday’s judgement that it had initiated the suo motu writ petition “noticing the lack of a uniform framework in this regard…” and it “has indicated by its orders, the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard”.

“The apprehensions relating to the absence of such a framework was also recorded in the final judgment of” yet another case “wherein the importance of a separate hearing and the necessity of background analysis of the accused, was highlighted,” it said.

“It was suggested that the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused,” said the court.

“In light of the above, there exists a clear conflict of opinions by two sets of three-judge bench decisions on the subject. As noticed before, this court in Bachan Singh had taken into consideration the fairness afforded to a convict by a separate hearing, as an important safeguard to uphold imposition of death sentence in the rarest of rare cases, by relying upon the recommendations of the 48th Law Commission Report. It is also a fact that in all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution’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. This places the convict at a hopeless disadvantage, tilting the scales heavily against him”.

The bench directed that the matter be placed before the Chief Justice of India for appropriate orders on the reference.