Humanization of the death penalty and criminal justice

As a conservative agency of the state, the Supreme Court of India is generally expected to follow a path set by the written text of law and binding precedents. But there are some extraordinary moments when, either because of motivated leadership or the burden of the anomalous handling of criminal justice, agencies feel free to happily break the shackles that lead it to a conservative framework. Forcing. It must go to the credit of Chief Justice of India (CJI), Justice UU Lalit that as the 49th CJI of India, he has ushered in that rare moment by taking several bold initiatives to correct some of the serious anomalies that are in operation. made of. death penalty law. Even before taking over as CJI, Justice Lalit had displayed unparalleled sensitivity to the plight of condemned ‘death-line prisoners’ in the country. Anokhilal vs State of Madhya Pradesh (2019), Irfan vs State of Madhya Pradesh, Manoj and others vs State of Madhya Pradesh (May 2022), and provide corrections in the form of constructive guidelines/guidelines. Such a corrective line of judicial decisions led by the CJI continues in the order of review petition in Prakash Vishwanath and Mohd. Firoz’s case

empirical evidence and research findings contained in death penalty india report (2016) and ‘ deserve death’ report (Project 39A of National Law University Delhi) served to enhance the extraordinary sensitivity of Justice Lalit. It is a matter of happiness that the CJI has been appointed as Justice PS Narasimha, S. It was a unique opportunity to work closely with like-minded judges like Ravindra Bhat, Bela M. Trivedi and Sudhanshu Dhulia.

on policies and uniformity

Attention here is a decision written by a three-judge bench (current CJI and Justices Ravindra Bhat and Justices Sudhanshu Dhulia, September 19, 2022) on ‘framing of guidelines with regard to consideration of potentially mitigating circumstances while applying the death penalty’. is on.

The decision stands out because of the lower court’s emphasis on death penalty policies and the practice and willingness to seek directions from a larger bench to ensure some sort of uniformity in the case. Such a reference to a larger Bench would be another step in the direction of justice reform of capital punishment such as the legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; Judicial limits flowing from the ‘rarest of the rarest’ case; And after the ‘oral hearing’ all remedies of the convicts are exhausted.

The judgment of Justice Ravindra Bhat (concurred by the CJI and Justice Dhulia) summarizes the core issue that exhibits a special concern for the legislative mandate under section 235(2), which mandates pre-sentence hearings after conviction. rights and fully endorses the same. Bench’s decision Bachan Singh, Lower courts and appellate courts exhibit conflicting patterns of compliance. As an ardent follower of the principle of precedent binding for a cause, Justice Ravindra Bhat did not cease to pay lip service to the extent of the ‘rare to the rare’ case, but also required that the sentencing court be given aggravating factors. Have trouble balancing and minimizing. Factors as per the decision of the Full Bench.

Punishment inconsistencies

In the context of this basic background and the wide discrepancies in the interpretation of the law, the following observations of the Court are significant: “It is also a fact that in all cases where the death penalty is a substitute for punishment, the dire circumstances shall always be on record, and its will be part [the] Prosecutor’s evidence leads to conviction, whereas the accused may be expected to put on record rare circumstances, since the stage to do so is post-convict. This puts the offender at a hopeless disadvantage, tilting the scales vigorously against him.” , stressed) It seems that the three-judge Bench’s ruling has gone beyond the anomalies of punishment when it observes: “This Court is of the view that there is a need to have clarity in the matter to ensure a uniform approach. On the question of providing real and meaningful opportunities, Contrary to the formal hearing of the accused/convict on the issue of punishment.” (emphasis added,

How does one have a real and meaningful opportunity to turn into reality? What would be the implications of such ‘actual hearings’ which are confined to sentencing cases only?

Such questions need answers that the society of the future must give. It is significant that the lapses in punishment pointed out by the three-judge bench have received a positive response from academia and the media. For example, an editorial in this daily (September 20, 2022) stated: “The Constitution Bench may come up with new guidelines, under which the trial court may consider itself a comprehensive set of factors relating to upbringing, education and socio-economic conditions.” can investigate. An offender before deciding the sentence…” In further detail on the subjective factors identified in another leading daily, Manoj et al. Vs State of MP, observed: “The trial court must take into account the social milieu, educational level, whether the accused has suffered trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct.” , were relevant factors. It is time to consider whether the accused should be given capital punishment”.

The ‘quality’ of guilt

The enthusiasm and appreciation generated by the bold initiative of the three-judge Bench led by the CJI may have left a positive impression, but the future shape of the mission to humanize criminal justice will ultimately depend on two things. The creation of the first larger bench and the inclination of the judiciary to continue on its further constructive path, as the CJI retires on November 8. Second, the extent to which society is prepared to broaden the horizons of a meaningful trial, even in the first crime determination stage. As of now, criminal liability is a product of the component of culpability/offence and sanction/punishment. Considering these two components in isolation breaks down a link between the offender and his sentence or punishment. Do the ‘mitigating factors’ only affect the sentence, and do not change the nature and quality of the guilty mind, or the ‘offences’ that constitute the stock justification for the sentence? How long and at what cost should the ‘quality’ of the guilty mind of ‘death row prisoners’ suffering from severe to mild mental disorders before and after the crime continue to be ignored (according to empirical evidence in Chapter IV) death worth report,

Perhaps, there will be some answers from clues provided by Western critical criminal law scholars, who have already begun to distinguish between ‘early crime’, which is regressive, prosecutable and punitive, and ‘mature crime’ which is developmental and punitive. is progressive. A recent article by Professor Alan Norie, “Taking Crime Seriously – Towards a Mature Retribution” ( On Crime, Society and Responsibility in the work of Nicola Lacey) has briefly covered the path of criminal justice humanization.

BB Pandey is a former Professor of Law, University of Delhi