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.


Correcting the procedures –

  • While the Bench headed by Justice L Nageswara Rao has commuted death sentences citing errors committed by courts below, the Bench headed by Justice U U Lalit has called for reports from probation officers, prison superintendents, and independent mental health experts in an attempt to correct the errors.
  • Later, the Bench headed by Justice Lalit agreed to comprehensively examine procedures in death penalty cases to ensure that judges who have to choose between life imprisonment and the death sentence have comprehensive sentencing 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 is mitigation, and what are mitigating factors?

  • A criminal trial has two stages — the guilt stage and the sentencing stage. Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined. Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.
  • It is a fundamental tenet of criminal law that sentencing must be individualised, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused. It speaks to a very intuitive sense of justice that all our decisions and actions result from a complex interplay of various factors concerning our lives, and the emphasis is that such interplay is different for each individual.
  • The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.
  • Justice would be an incomplete idea if criminal law was incapable of considering an individual in all their complexity and the various factors that contributed to a set of decisions and actions in their lives.


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. A study by Project 39A looking at 15 years of death penalty sentencing in trial courts has shown that the Bachan Singh framework has broken down, with judges attributing to it multiple and inconsistent meanings.
  • A study of the 595 death sentences imposed in the last five years shows that this concern is intensifying.