A new track for capital punishment jurisprudence 

News: Recently, the Supreme Court of India has initiated a suo motu writ petition (criminal) to frame guidelines on the mitigation analysis in the cases pertaining to death penalty sentencing or capital punishment.  

Procedure for capital punishment 

If a sessions court (sentencing court) award a capital punishment, then it is to be confirmed by the jurisdictional High Court (confirming court) under Chapter 28 of the Code of Criminal Procedure. 

Evolution of the Jurisprudence related to death penalty in India  

In Bachan Singh vs State of Punjab (1980), the supreme court called for balancing the mitigating and aggravating circumstances against each other. The court laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”. It should be awarded only in a rarest of rare case.  

However, in later judgment, the Supreme Court has begun to inquire into sentencing methodology with great interest.  

In Rajendra Pralhadrao Wasnik vs The State of Maharashtra (2018), the Court directed to analyse the conduct of the convict in jail, outside jail if on bail for some time, medical evidence about his mental make-up, contact with his family and so on”. The court directed to furnish reports related to these aspects. These reports are very important for the mitigation investigation. 

In Mofil Khan vs State of Jharkhand (2021), the court held that the “the State must prove that the reformation and rehabilitation of the accused is not possible” and that “the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.” 

In Manoj & Ors vs State of Madhya Pradesh (2022), the Court issued directions that all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while in prison should be placed before the court. In addition, a trained psychiatrist and a local professor of psychology should also conduct a psychiatric and psychological evaluation of the convict 

What are the issues in award of the capital punishment? 

According to a report by the National Law University Delhi’s Project 39A titled ‘Matters of Judgment’ there is no judicial uniformity or consistency in awarding of the death sentence.  

According to the Project 39A report titled ‘Death Penalty Sentencing in Trial Courts’, the courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise. 

Way Forward 

There is a new wave of thinking in the domain of capital punishment. It was timely and necessary that the Supreme Court come up with the guidelines on the matter of mitigation analysis.  

The court should explain what constitutes the mitigating circumstances, the role of a probation officer in assisting the Court and the potential value addition of a mitigation investigator to the sentencing exercise.  

For a complete mitigation investigation, in addition to legal professionals, there is a requirement of professionals trained in psychology, sociology and criminology.  

The SC’s guidelines related to the mitigation investigation will strengthen the doctrine of the rarest of rare. This will ensure that the sentencing and confirming courts exercise their capital punishment sentencing power with greater fairness. 

Source: The post is based on an article “A new track for capital punishment jurisprudence” published in the “The Hindu” on 07th May 2022.