Capital punishment highest in murder cases, sexual violence next: Death penalty lawyer Shreya Rastogi

Edited excerpts follow:

Q1. What does “commuting a judicial sentence” mean?

In the context of judicial, “commutation” means a reduction of sentence by the court. Commutations, which is reduction of sentence, which can be done by the highest executive bodies and offices that are the governor and the president. They also have the powers to commute under Articles 72 and 161 of the constitution. So the word commute or commutation has been used in these different contexts.

It is mostly in the provisions for which the death sentence can be given. They may have a range of offenses, sometimes there are provisions which even have a fixed term sentence.

For instance the minimum sentence would be 20 years, like in cases under the POCSO Act, Section 6 (punishment for aggravated penetrative sexual assault) has a minimum of 20 years sentence. Then the range is 20 years of life to till the end of natural life and death sentence. So a “commutation” in a case can mean that the court can reduce the death sentence to either life imprisonment till the end of natural life or to 20 years in prison.

It depends on what is the legislation, what is the range, which is provided. Any reduction of sentence is supposed to be a commutation.

Q2. In the case at hand, the high court noted the absence of premeditation and lack of criminal antecedents to arrive at its decision. What other factors are recognised by courts while commuting sentences?

In the non sentencing there are multiple things that the court can consider. And, while the most clarity in our legal system is actually in the context of death penalty sentencing law because outside the death penalty, I would say that if one can study judgments around sentencing in non death penalty cases, not enough attention has been given to how sentencing will be done.

Procedures are there in the sense that you will hear the accused on sentencing. But if you look at judicial practice, if you look at the way in which even sentences are being given, it’s not as if the court necessarily calls for material from the state or allows the accused the opportunity to submit materials, an opportunity, meaning giving them time and giving them resources, appointing people.

All of that actually now in our system happens in case of the death penalty. But in non death penalty cases, that doesn’t happen.

In a death sentence matter, what has been clarified for decades now, is that the court reserves the death penalty for cases which are “rarest to rare”.

One of the grounds for commuting a death penalty to life imprisonment is a jail conduct report. The second one is a psychological evaluation. The third one is a probation officer’s report. In this particular case, also the court mentioned these reports and lack of these reports.

Apart from this, you have to also give the accused a chance, based on evidence and their actual conduct. Now, since the judgment in  Manoj v. State of Madhya Pradesh Judgement, 2022, the Supreme Court has followed the practice of giving access for mitigation investigators.

These are people who are trained in different social science disciplines like psychology or social work or anthropology or sociology or accused for an interview that they can bring out their life history because this kind of social science approach is not something that lawyers are capable of.

Q3. What are the legal standards when the court considers the death penalty?

In Bachan Singh v. the state of Punjab in 1980, It was the second time that the constitutionality of the death penalty was challenged.

In a 4:1 judgment, the court upheld the constitutionality and right towards the very end of the judgment they use the word “rarest of rare”, saying that sentence should be reserved in “rarest of rare” cases where the alternate option of life imprisonment has not been unquestionably foreclosed.

But what does “rarest of rare” mean, and what does unquestionably foreclosed mean?

That has then been a subject matter of more judicial expansion in the decades since the Bachan Singh judgement. In the last more than 40 years now since Bachan Singh, courts have explained that we will look at “aggravating and mitigating” factors because it is clearly stated in Bachan Singh that we have to consider crime as well as the criminal factors. The idea is not to think of it in a straight jacketed manner.

In our law that’s amalgamated after independence, It made that very clear. What it also, the 1973 code did in comparison to the 1898 code. In the 1898 code, the death sentence would be the norm and life would be the exception, but in the post independence code of criminal procedure, 1973 was changed. Now, the life imprisonment would be the norm and for giving the death sentence, the court would have to give special reasons.

It means they are making it more exceptional because it is recognizing that life is more sacrosanct.

Courts look at both “aggravating and mitigating” factors. Courts are supposed to make sure that mitigating factors actually get a very expansive and liberal interpretation. Because, even in Bachan Singh, in 1980, the majority itself held that judges should never be blood thirsty.

Q4. What are the legal grounds for the death penalty in the cases of rape and murder under the POCSO Act?

We look at aggravating and mitigating factors and whether the alternate option of life imprisonment has been unquestionably foreclosed. It’s the gravity. The law is the same in these cases also.

Q5. Does the rape and murder cases always make a ground for death penalty?

No, not in every case the death penalty is given. But if we look at the statistics, murder is the highest category and the second category where most of death penalty given is sexual violence.

Q6. How often do courts in India actually commute death sentences on the basis of “no premeditation” or “lack of reports from probation, jail, and psychology”?

It’s not a lack of reports always. The courts look at the reports that come, but in most cases, this does not even come.

Over the last 40 years, there has been a lot of development and the most recent one was in the case of Manoj v. State of Madhya Pradesh, 2022, where in death penalty cases, the Supreme Court laid down very extensive guidelines.

Ever since that has been created, converting that law into judicial practice across the country is a whole different battle. We have to create a capacity on district level in trail courts across the country. It is also about changing judicial practice. It is about changing mindsets that you have to do before imposing the death sentence.

Those are changes, which will take time. It has been almost three and half years now since Manoj judgement. But in most trial courts across the country, courts still don’t follow these guidelines. These guidelines were for trial courts. It is binding to the trial court to follow that.

Q7. Do probation officers and psychological evaluations make a real difference in sentencing? How reliable are these reports in Indian prisons?

It does make a difference because at least those are questions we can go into. More cases are done where reports are submitted. Whether reports are prepared correctly or not is going to be the next question, and how much we are increasing the capacity of our probation officers and psychological evaluations, because psychological evaluations are commonly conducted at district hospitals or district mental health facilities.

I can tell you by experience of the cases that we have done, many of the mental health professionals may not understand, what is it that the court is asking?

A mental health professional can’t answer the question of reformation. Reformation is not a term of psychology. It’s a legal thing. As a mental health professional, you are answering different things and then the court has to make sense of that.

There is obviously a need for improving the capacity, both on the side of probation officers, on Mental health professionals who do the psychological evaluation and for them to understand what is it, what are the questions that the law is interested in, so that they can provide better assistance.

But equally judicial training is also needed so that judges know and have a much better sense of how sentencing should be done.

Q8. Does commuting the death sentence to life imprisonment till natural life without remission sufficiently address both retribution and reform? How do you see this?

That is something that many people raise concerns about. Even the Supreme Court itself has in many cases said that if you don’t give anyone any possibility of parole, furlough, remission, then it takes away hope of a person entirely. If the person does not have any hope that they will ever be able to reintegrate into society, then it may be detrimental to the point of reform.They have no reason to look forward to improving themselves.

I think that is certainly a question which has to be looked at from many different lenses. Constitutional, legal and sociological. How we give life imprisonment until the end of natural life and restrict the powers of remission the power of parole, furlough is something that I think is the next battle.