SC to examine practices in death penalty sentencing
- April 4, 2022
- Posted by: OptimizeIAS Team
- Category: DPN Topics
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SC to examine practices in death penalty sentencing
Subject: Polity
Section: Supreme Court
Context: While hearing death sentence appeals since September 2021, the Supreme Court has repeatedly expressed concern over the manner in which trial courts and High Courts have carried out sentencing with very little (relevant) information.
What has caused the SC to examine practices in death penalty sentencing?
- The court is undertaking an exercise to reform the procedures by which information necessary in a death penalty case is brought before courts. In so doing, the Supreme Court is acknowledging concerns with the manner in which death penalty sentencing is being carried out. While the death penalty has been held to be constitutional, the manner in which it has been administered has triggered accusations of unfairness and arbitrariness.
How are judges supposed to choose between life and death sentences?
- In May 1980, when the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case, a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty. At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence. Through the 1980 framework — popularly but inaccurately known as the “rarest of rare” framework — the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
- The judgment also made it clear that life imprisonment as a sentence would have to be “unquestionably foreclosed” before judges imposed the death sentence.
What has happened to this framework in the four decades since Bachan Singh?
- The Supreme Court has repeatedly lamented the inconsistency in application of the Bachan Singh framework. Similar concerns have been expressed by the Law Commission of India (262nd Report). One of the main concerns has been the crime-centred approach to sentencing, often in violation of the mandate in Bachan Singh that factors relating to both the crime and the accused have to be considered. There has been widespread concern that the imposition of death sentences has been arbitrary
What is the reason for this?
- One of the main reasons is that very sparse sentencing information about the accused is brought before the judges. While the judgment in Bachan Singh did develop a framework, it was a framework that depended on the relevant information brought before the court. But the framework did not have any mechanisms to ensure the actual collection of such information and its presentation before judges.
- Also, sentencing judges have often dismissed the consideration of mitigating factors depending on their perception of the crime despite there being no basis in the law for dismissing the relevance of such factors. It points to a deeper gap — that there has been no real guidance on how judges must go about assigning weight to aggravating and mitigating factors, and how they should approach weighing one factor against another.
Who can collect all this information?
- The Supreme Court has recognised that it is important to collect this complex interplay of information sentencing is to be done in a proper manner. The judgments in Santa Singh (1976) and Mohd Mannan (2019) have recognised the interdisciplinary nature of such an exercise, and that it requires professionals other than lawyers to collect such information.
Is this practical in India’s justice system?
- There must be a very high degree of fairness in a system that is interested in subjecting individuals to the experience of death row, and ultimately taking lives through the instrumentality of law. With that as the starting point, the criminal justice system needs to do all it can to ensure that systems are created for procedural fairness.
Is death sentence banned?
- Death penalty is not yet prohibited under the International law. However, it’s abolition is encouraged and may be imposed within very strict limitations.
- According to the United Nations official data, today, more than two – third of the member states of the UN have either abolished the death penalty or they simply do not implement it.
- The General Assembly adopted a resolution in 2007 on a moratorium on the use of the death penalty. On 21 December 2010, it adopted a third resolution on the moratorium which was approved by a broader margin and stated that “ States still maintain the death penalty to progressively restrict its use, to reduce the number of offences for which it may be imposed, and to establish a moratorium on execution with a view to abolish the death penalty.”
- The International Covenant on Civil and Political Rights does not abolish death penalty, however, there are certain instruments that work towards the abolition of capital punishment. At the International level, the most important provision of law that deals with the death penalty is Article 6 of the International Covenant on Civil and Political Rights (ICCPR). During the draft of the ICCPR, only ten member nations had been signatories to it for the abolition of the death penalty.