Recently, the Supreme Court ruled that all courts must consider pre and post-crime conduct of a convict to ascertain mitigating grounds to avoid imposition of the capital punishment. The apex court’s recent verdict puts onus on the judiciary to look for a convict’s reformative qualities. These further limit the possibility of imposition of death penalty which in 1980s got restricted to only rarest of rare cases. The law commission of India in 2015 had also recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war against the country. Over the past several years concerns have been raised that the death penalty has been awarded mainly considering only the crime factor while overlooking the accused.
In the last four decades or so, as far as application of death penalty is concerned it’s been very erratic. In the sense the trial courts have been very erratic and rewarding death penalties to convicts. Because what we have seen is that, most of the cases in which death penalties are awarded by the trial courts are either set aside and not confirmed by the high courts or when they come to the Supreme Court they are set aside and the death penalty is reduced to either 20 years or 10 years. So, what has really happened in the last few years is that there has been a concern which has been expressed in the legal circles that the trial courts have been very liberal in awarding death penalty and actually giving push to the idea of retributive justice.
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So, what the Supreme Court has over the years felt is that although we have a base which has been laid down in the Machhi Singh case that death penalty should be given in very exceptional circumstances, ‘life sentence is a rule and death penalty is an exception’. They also laid down the rarest of the rare case and what has really happened is that the misapplication of the rarest of the rare case. In the Bachan Singh case what the Supreme Court said was that when any particular court is awarding the death penalty sentence it has to balance the mitigating and aggravating circumstances.
Once they are balanced out you have to see which of the scale is heavier and, on that basis, you have to award death penalty. But lately what’s happening is that we have seen that there have been many instances that the trial courts have heard arguments on sentencing and within hours of the conclusion of the arguments they pronounce their verdict. There is no proper weighing of the aggravating and mitigating circumstances. So, what has really happened in the last 40 years is the misapplication or the abuse of the Supreme Court guidelines which have been laid down in Bachan Singh case. As on December 31, 2021 there are around 488 convicts on death penalty and in the year 2021 itself there were 144 instances where death penalty was awarded out by the trial courts. So, what we are witnessing that the trial courts have actually hurried through or rather not properly applied the law laid down Bachan Singh and this is resulting in the number of death convicts in our prisons and are piling up.
What the Supreme Court has done very objectively, is laid out a test and the test is ‘rarest of the rare case’. The second thing they have said is that ‘life sentence is the rule and death sentence is an exception’. So, keeping these two principles in mind you have to weigh things objectively. Now the question arises is that what about the rights of the victim? As far as the criminal jurisprudence is concerned globally, it has evolved, the concept of criminal jurisprudence and punishment has evolved from the retributive punishment to deterrent punishment and further to reformative punishments.
Most importantly what we have to see today is that what are the mitigating circumstances. What is his age, family background, what was his early family background, what is his educational status, what are the chances that he can be reformed. Jurisprudence is shifted as I pointed out earlier from the point of retributive justice to reformative justice. Now the whole idea of keeping this is, the person in jail, to make sure that this person who’s become a menace to the society does not come back into the society and repeat the same offence for which he’s been charged. So, what the courts are trying to do is, they are trying to see that we are not bloodthirsty, we do not respite to the idea of death penalty to be given in every case.
So as far as the courts are concerned ‘life sentences are rule and death penalty is an exception’ and we should apply that as exception. As long as the case is made out, if the crime is such offence and such a diabolical nature than death penalty should be awarded. In fact what we have seen that in the 26/11 case the whole question of mitigating and aggravating circumstances were argued and also at that point in time the Supreme Court heard all angle and in the interest of the society it awarded death penalty. The Supreme Court is now saying that you have to be more rational more subjective in your application of mind in awarding death penalty.
These are the views and insight pointing out and explaining not only the judgment, its context but also what it signifies and where do we stand in terms of the overall debate on death penalty.
(The author is an advocate by profession)
