Explained: Reforming death penalty

Context: This week, the Bench headed by Justice Lalit agreed to comprehensively examine procedures in death penalty cases. It is 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 Supreme Court has acknowledge 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 Bachan Singh’s case, a “rarest of rare cases” framework was developed for judges to follow when they had to choose between life imprisonment and the death penalty.  It made clear that life imprisonment would be the default punishment and judges would need to give “special reasons”. The judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.

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. 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.

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. It is an empirical reality that the vast majority of death row prisoners are economically vulnerable and very often receive poor legal representation.

Also, 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?

It is a fundamental tenet of criminal law that sentencing must be individualized, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused.

The idea of mitigation is to present 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 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. For instance, 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.

Source: The post is created based on the article “Explained: Reforming death penalty” published in Indian Express on 04th April 2022.