The challenge of reforming death penalty sentencing

News: Recently, the Supreme court, in Manoj and Ors. vs State of MP, has acknowledged that there is an intense and persistent crisis in the fairness of administering the death penalty in India.

Legality of the Death Penalty in India

In Bachan Singh vs State of Punjab (1980), the court upheld the constitutionality of the death penalty.

The court greatly emphasised ‘individualised sentencing’ and called upon courts to consider the ‘crime’ and the circumstances of the accused.

What are the issues involved?

There are issues around the procedural fairness of the imposition of the death penalty.

Since Bachan Singh judgment, there are disagreements on, (1) which case warrant the death penalty, and (2) whether the nature of information about the accused is relevant for sentencing.

A vast majority of prisoners are poor, and the quality of their legal representation has been poor. Therefore, their sentencing information are not collected appropriately. Very little is known about the accused while sentencing.

Since September 2021, the Supreme Court has delivered judgments in 10 cases. The judgments resulted intp three acquittals in one case and commutations in the rest.

The court has been particularly concerned over the lack of information about the accused. The information is central for a fair sentencing process. No relevant information about the accused person enters the courtroom during the sentencing phase.

There is a pervasive arbitrariness in sentencing procedures that impose the death penalty.

Importance of the Manoj judgment

The court has called for reports of the probation officers, prison officers and mental health professionals.

The court has also taken important steps towards realising an ‘individualised sentencing enquiry’ that was envisaged by the court in Bachan Singh 42 years ago.

The court has indicated a shift towards an evidence-based inquiry while sentencing. If a person has been found guilty, the court would take expert opinions and study reports from a wide range of disciplines, before sentencing the guilty person.

The scope of mitigating factors has been broadened by the Supreme court. The court has acknowledged pre-offence details such as socio-economic status, education, family background and also post-offence details such as the conduct of the prisoner in prison as the mitigating factors while sentencing an accused in a case.

Now, it is believed that past social histories, behaviours and life circumstances of the accused is a product of a complex interplay of personal and environmental factors.

The life circumstances of an individual can help determine punishment. It would require an individual’s life choices and moral culpability.

Life-history approach: it provides a framework to understand the life circumstances of an individual as interconnected to each other.

(1) Socio-economic circumstances are understood like how poverty impacts an individual’s access to housing, education and health care, which subsequently impacts and shapes their life choices.

(2) Family background: Any history of violence or neglect (also known as remote factors or experiences) or other negative experiences can shape an individual’s character and affect their actions as adults.

The Challenges

The traditional checklist-based approach of presenting mitigation deviates from the requirements of individualised sentencing. This deviates from the most fundamental principle of the criminal justice system.

The courts are not equipped courts to understand rich information of non-legal expertise into courtrooms,

Way Forward

The procedure adopted by the Supreme Court while sentencing death penalty should be followed by lower courts

The courts need to equip themselves to appreciate the evidence so presented.

There can be conflicting findings in reports and opinions presented to the court during sentencing. Therefore, the courts must not be constrained by the confines of the evidence act in capital sentencing.

The decision in Manoj can lead to more meaningful and informed sentencing inquiry and ensuring procedural fairness for those under the sentence of death.

Source: The post is based on an article “The challenge of reforming death penalty sentencing” published in the “The Hindu” on 02^nd June 2022.