Hearing before death sentence (GS Paper 2, Polity and Governance)
Why in news?
- The Supreme Court recently referred to a larger Bench issues relating to procedural norms for imposing the death sentence.
- The intervention is seen as a major step in plugging gaps in the way in which trial courts award the death sentence.
What has the court said?
- A three-judge Bench comprising Chief Justice of India (CJI) U ULalit and Justices Ravindra Bhat and Sudhanshu Dhulia said that there are conflicting judgments on when and how the sentencing hearing must take place, and referred the issue to a five-judge Constitution Bench.
- This order is necessitated due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence.
What is the difference of opinion?
Rarest of Rare cases:
- Section 235 of the Code of Criminal Procedure (CrPC) requires a judge to hear the accused after conviction on the question of sentence, and then pass sentence on him according to law.
- In 1980, the Supreme Court upheld the constitutionality of capital punishment in ‘Bachan Singh v State of Punjab’ on the condition that the punishment will be awarded in the “rarest of the rare” cases.
- Crucially, the ruling also stressed that a separate sentencing hearing would be held, where a judge would be persuaded on why the death sentence need not be awarded.
- This position was reiterated in several subsequent rulings of the court, including in ‘Mithu v State of Punjab’, a 1982 ruling by a five-judge Bench that struck down mandatory death sentence as it falls foul of the right of an accused to be heard before sentencing.
- However, there are conflicting rulings on when that separate hearing is supposed to take place.
Violation of principles of natural justice:
- At least three smaller Bench rulings have held that while a separate sentencing hearing is inviolable, they can be allowed on the same day as the conviction.
- Other more recent three-judge decisions have ruled that same-day sentencing in capital offences violate the principles of natural justice.
- A 2020 study by Project 39A, a criminal reforms advocacy group in the National Law University, Delhi, found that in 44 per cent of cases it studied in Delhi, Maharashtra, and Madhya Pradesh, sentencing hearings took place on the same day as the pronouncement of guilt.
Adequate sentencing hearing:
- In ‘Dattaraya v State of Maharashtra’, a 2020 ruling, a three-judge Bench of the Supreme Court commuted the death sentence to life imprisonmenton the grounds that an adequate sentencing hearing was not held.
- For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done.
- The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the petitioner has been denied an effective hearing.
What is an adequate sentencing hearing like?
- Aseries of judgments on sentencing hearings talks about a “meaningful, real and effective hearing” for the accused before awarding the death sentence, wherein the accused can have an “opportunity to adduce material relevant for the question of sentencing.”
- This cannot happen on the same day as that of the conviction. Here, the judge is required to consider not just factors that necessitate awarding the highest sentence, but also the mitigating circumstances.
- In the same suomotu petition, the court is also looking at framing a uniform policy in the form of guidelines for sentencing.
- The court had indicated in its previous orders “the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard”.
What are mitigating circumstances?
- In May, in ‘Manoj& others v. State of Madhya Pradesh’, the Supreme Court addressed the lack of a legal framework or institutional capacity to handle death penalty sentencing.
- The ruling, by a three-judge Bench acknowledged the arbitrariness and subjective patterns in awarding the death sentence. Studies also show that largely underprivileged, minorities, and scheduled castes and tribes are awarded the death sentence.
- Death penalty sentence is largely driven by the crime in question and not the circumstances of the accused.
- For example, the Supreme Court’s 1983 ruling in ‘Machhi Singh And Others vs State of Punjab’ introduced “collective conscience” into the capital sentencing framework and laid down five categories, wherein the community would “expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged”.
Collective Conscience:
- The 2020 study by Project 39A found that 72% of all cases in which Delhi trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor.
- The study also found that of the 112 cases in which collective conscience was a factor impacting the decisions of courts, absolutely no other mitigating factor was considered in 63 cases.
- The SC order referring the issue to a larger bench lists social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, as relevant circumstances that should be accounted for at the sentencing hearing.
What happens next?
- The case will now be listed before the CJI on the administrative side for orders on listing. A five-judge Constitution Bench will have to be set up to settle the differences in law among several three-judge Bench verdicts.
- The hearings will effectively settle the debate on whether the fast-tracked hearings by trial courts awarding death sentences is legally tenable. The ruling could also be a crucial step in raising the bar further in awarding the death sentence.
