The Supreme Court recently submitted questions about the rules for imposing the death penalty to a bigger Bench. The intervention is viewed as a crucial step in closing loopholes in the way death sentences are handed down by trial courts.

The fundamentals of the rarest of rare concept will be reaffirmed by the current trajectory of judicial thinking, which will also usher in a new school of thought regarding the legality of the death penalty.

The SC has started a criminal suo motu writ petition to go deeply into the problems surrounding important parts of understanding death sentence sentencing.

The court is also considering creating sentencing guidelines in order to establish a standard policy.

Conflicting rulings on the timing and format of the sentence hearing have led a three-judge bench, which included Chief Justice of India (CJI) U U Lalit and two other Justices, to refer the matter to a five-judge Constitution Bench.

This order is necessary because different decisions have taken different positions and applied different methodologies when determining whether the court must hold a separate sentencing hearing after recording a conviction for a capital offence.

Executing a person who has been condemned to death after being found guilty of a crime by a court of law is the practise known as capital punishment, sometimes known as the death penalty.

It is the harshest punishment that can be given to an offender as a deterrent to the worst crimes.

The Indian Penal Code (IPC) 1860 only allows the death penalty in the rarest of situations, such as Section 121 (taking up arms against the state) and Section 302 (murder), etc.

According to Section 235 of the Code of Criminal Procedure (CrPC), the accused must be heard by the judge at a "sentencing hearing" after being found guilty in order for the judge to impose the appropriate penalty.

In the cases of Mithu and Bachan Singh, which are both cited below, this stance was supported.

Bachan Singh Case v State of Punjab’: The Supreme Court upheld the death penalty's legitimacy in 1980, but only under the proviso that it would only be applied in the "rarest of the rare" situations.

Importantly, the decision also emphasised that a separate sentencing hearing would be held, when a judge would be convinced that the death penalty was not necessary.

“Rarest of the Rare Cases”: When the murder is carried out in such a way as to provoke the community's intense and extreme wrath (anger) and is thus extraordinarily violent, absurd, diabolical, repulsive, or reprehensible.

Mithu case: This stance in the Bachan Singh case was reaffirmed in a number of other decisions, including "Mithu v State of Punjab," a 1982 decision that abolished the mandatory death penalty because it violates the right of the accused to be heard before sentencing.

Mofil Khan vs State of Jharkhand (2021): The SC ruled that "the State is under a responsibility to obtain evidence to prove that there is no hope of reformation and rehabilitation of the accused" in this case.

Effective hearing under CrPC

Dattaraya case: In the 2020 decision "Dattaraya v. State of Maharashtra," a three-judge Supreme Court Bench mitigated the death penalty to life in prison on the grounds that an appropriate sentencing hearing was not held.

The court added that the proposal that the accused would receive a constructive hearing under Section 235(2) of the Criminal Procedure Code must expressly state that the court intends to sentence them to death.

By presenting the Court with mitigating factors, the accused will be able to effectively argue against the death penalty. This hasn't been done, though.

The trial court failed to seek to collect pertinent information, and the petitioner was not given the chance to file an affidavit putting on record mitigating circumstances, according to the bench, depriving the petitioner of an effective hearing.

A separate sentencing hearing is inviolable, yet it is possible for it to take place on the same day as the conviction, according to at least three smaller Bench opinions.

However, more recent decisions by three judges have determined that the natural justice standards are violated by same-day sentencing for capital offences.

Information about a sentencing hearing that day: In 44% of the cases it looked at in Delhi, Maharashtra, and Madhya Pradesh, sentencing hearings took conducted on the same day as the finding of guilt, according to a 2020 study by Project 39A, a criminal reform advocacy group at the National Law University of Delhi.

An adequate sentencing hearing

The following is noted in the chain of sentence rulings:

Before imposing a death sentence, it is recommended that the accused have a "meaningful, real, and effective hearing" where they can "opportunity to adduce (cite) material pertinent for the subject of punishment."

This, however, cannot take place on the same day as the conviction. This is so that the court can take into account both the mitigating circumstances as well as the facts that make it necessary to impose the harshest sentence.

Mitigating circumstances

In order to avoid being sentenced to death, defendants may raise mitigating circumstances in their defence.

These conditions could include mental health issues, childhood trauma, the absence of a criminal history, or other similar situations that could lead courts to impose a lighter sentence.

These are intended to minimise the gravity or responsibility of a criminal conduct.

The SC in May 2022 has looked more closely at sentencing methodology from the standpoint of mitigating factors while dealing with appeals against confirmation of the death sentence.

In "Manoj & Others v. State of Madhya Pradesh," the Supreme Court recognised the subjective criteria and arbitrary nature of the death penalty.

Studies also reveal that scheduled castes, scheduled tribes, and those from poor backgrounds frequently receive the death penalty.

"Machhi Singh And Others vs. State of Punjab": This 1983 decision established five categories in which the community would "expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged" and introduced "collective conscience" into the capital sentencing framework.

The fact that the offence for which the death penalty is being considered, rather than the circumstances of the accused, is taken into consideration.

Statistics referencing collective conscience: According to the 2020 study by Project 39A, "collective conscience of the society" was identified as a consideration in 72% of all cases involving the death penalty in Delhi trial courts from 2000 to 2015.

The study also discovered that, of the 112 situations in which judges' decisions were affected by the collective conscience, only one other mitigating element was taken into account in 63 instances.

It will be decided by a five-judge Constitution Bench whether trial courts' expedited procedures, which often result in death sentences being handed down in a matter of days, are valid.

The decision might also mark a significant advancement in the standard for imposing the death penalty.

Source: The Indian Express

https://indianexpress.com/article/explained/supreme-court-death-penalty-debate-explained-8163628/