Death penalty case: SC refers to 5-judge bench on framing guidelines on mitigating circumstances

The Supreme Court, in a judgment on September 19, 2022, referred to a Constitution Bench the question whether accused in death penalty cases should be given an opportunity to present mitigating circumstances in full and in detail before conviction by the trial court.

In many death cases, an accused person is condemned to the gallows by the trial judge on the same day he or she is convicted of a crime.

While the State is given an opportunity to present aggravating circumstances against the accused throughout the duration of a trial, the accused, on the other hand, is able to produce evidence showing mitigating circumstances in their favour, which may spare them the noose, only after their conviction, the court noted.

Referring the case to a five-judge Bench, a three-judge Bench of Chief Justice U.U. Lalit, S. Ravindra Bhat and Ajay Rastogi said the scales are tilted against the accused in a criminal trial which may lead to an irreversible consequence, namely, the death of the accused.

“The accused in such cases are placed at a hopeless disadvantage with evidently the scales tilted against them,” Justice Bhat, who authored the verdict, said.

In many cases the sentence hearing is a quick formality to be gone through once the order of conviction is pronounced.

“The accused are scarcely accorded an opportunity to present mitigating circumstances,” Justice Bhat said.

The three-judge Bench said a uniform approach as to when and how to afford an accused opportunity to present mitigating circumstances before their condemnation to death after the crime is declared “rarest of rare” should be decided authoritatively by a Constitution Bench.

The reference to a larger Bench to examine an issue which has affected the fundamental rights of accused in death penalty cases may signal a move from the top court to veer criminal justice system away from death penalty itself. The judgment is significant as it identifies and seeks to resolve a debate on whether the death penalty, though considered a rarest of rare punishment, is being administered casually by the trial courts.

During the hearing, Attorney General K.K. Venugopal had also opposed same-day sentencing, even suggesting that the entire proceedings should be adjourned after the stage of conviction in cases in which a person can be put to death as a form of punishment if found guilty. The defence team could use the time to collect mitigating factors.

As of now, no effort is ever made to dig deeper into a convict’s childhood experiences, multigenerational history of physical and mental health issues, exposure to traumatic events and other familial, social and cultural factors crucial in order to undertake an individualised sentencing enquiry. Mitigatory circumstances quoted in favour of a convict while sentencing are often basic. These included the convict’s immediate family structure, education and work prior to arrest.

During the hearing, Chief Justice Lalit had mused whether the mitigating circumstances ought to be brought to the attention of the trial court at the very stage of framing charges or even after the conclusion of the prosecution evidence.

The court’s amicus curiae, senior advocate Siddharth Dave, had agreed that the trial judge should take the effort to call for every bit of material or evidence which could be seen as a mitigating circumstance in a death case.

Advocate K. Parameswar, amicus curiae, had said the trial proceedings were conducted in such a way that the dice was always loaded against the accused. He had noted that the prosecution hammered in the aggravating circumstances throughout the trial against the accused while the mitigating factors were hardly heard. This kind of trial, followed by same-day sentencing, violated the right to equality.

“By same-day sentencing you are basically saying the scales of the prosecution’s aggravating circumstances are heavier without giving any opportunity to bring out the mitigating circumstances. That is why same-day sentencing is bad,” Mr. Parameswar had submitted.

Senior advocate Siddharth Agarwal, appearing for Project 39A, a group which works on death penalty cases, had highlighted the need “for a judicial exercise to reach the correct set of parameters to determine whether the State should actually take away somebody’s life or not for what he has done. That is a constitutional imperative which would trump same-day sentencing”.