Revisiting death penalty jurisprudence

News: On April 22, In Irfan vs State of Madhya Pradesh Case, the Supreme Court decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.

This is a significant development that can radically alter India’s death penalty jurisprudence relating to the crime, the criminal, and the punishment., 

What were the observations made by the court in the case? 

The court has decided to identify the mitigating circumstances (the factors that could lead to avoidance of capital punishment). This will help trial courts in reaching a correct conclusion. It will ensure a convict-centric approach. This will make the imposition of capital punishment rarer, fairer, and principled. 

The accused should be judged on an individualistic approach. It means the accused should be examined on the basis of the social, economic, emotional, and genetic components rather than the offence. It would lead to a just and judicious sentencing policy.  

A ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”.  

The Court would evolve a legal device for procurement of a comprehensive report. The report would deal with the socio-economic and hereditary backgrounds of the accused procured from experts in the fields of social work, psychiatry, psychology, anthropology, etc.  

What are the arguments against the death penalty? 

In Bachan Singh vs State of Punjab (1980) the Constitution Bench refused to declare the death penalty as unconstitutional. It suggested a humane and reformist framework in the criminal matters. However, the death penalty can be given but only in the rarest of rare cases, that too when “the alternate option is unquestionably foreclosed”. This triggered the person-centric approach in criminal justice. 

In Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021), the court held that socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc. can be the reasons to avert the death penalty 

What are the issues with awarding of the death penalty in India? 

According to Section 354(3) in the Code of Criminal Procedure, the judge should specify “the special reasons” while imposing the capital punishment.  

In fact, there could be “gaps within  Bachan Singh judgement itself”. The SC has neither elaborated on the mitigating factors which could be used to avert the death penalty, in concrete terms, nor explained the issues such as burden of proof and standard of proof in detail.  

The Bachan Singh  principles have not been followed by the judiciary in letter and spirit.

– For example, In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is important to decide the punishment

– In Machhi Singh vs State of Punjab (1983), the Court indicated that inadequacy of other punishments could justify the death penalty. In fact, 13 convicts have been hanged in different reported cases without giving due regards to the Bachan Singh philosophy. 

In India, the poor, rather than the rich, are awarded the death penalty. Further, those who were sentenced were uneducated and illiterate.  

The death penalty is violative of the right to life envisaged under Article 21 of the Constitution.  

Despite the dilution of the penal provisions by the Supreme Court, the state has continued to overuse or misuse the provisions. For example, Section 124A of the Indian Penal Code is often invoked vaguely and widely despite dilution in Kedar Nath Singh vs State of Bihar (1962).  

There is a possibility that new judicial doctrine and its implementation device may also fail like Bachan Singh doctrine. 

Way Forward 

The present matter should be referred to a larger Bench to rectify the foundational omission in Bachan Singh.  

Further, the Supreme Court should analyse the constitutional validity of death penalty in itself.   

Source: The post is based on an article “Revisiting death penalty jurisprudence” published in the “The Hindu” on 29th April 2022.