Rethinking the death penalty jurisprudence

On 22 April, a division bench of the Supreme Court of India headed by Justice UU Lalit decided to investigate critically in the routine and sudden manner in which trial judges often impose a sentence of death on the guilty. Challenge before the Court in the urgent matter of Irfan vs State of Madhya Pradesh It was to identify mitigating circumstances and ensure a guilty-centred approach so that the implementation of the death penalty is rare, fair and principled.

The Court felt that an individualistic approach that examines the social, economic, emotional and genetic components that constitute the offender, rather than the crime, would go a long way in developing an equitable and prudent punishment policy. According to the court, “the ‘one-size-fits-all’ approach must end while considering the mitigating factors during sentencing”. The bench indicated that there is a need for mitigation experts to assist the trial court in arriving at a correct conclusion on whether one should be hanged or not.

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Recent decisions as indicated

This is a significant development that could fundamentally transform India’s death penalty jurisprudence by comprehensively examining multi-disciplinary knowledge of crime, criminality and punishment.

An analysis of possible reasons for deferring the death penalty is reflected in a series of recent decisions such as Lochan Srivastava vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021). These reasons may include socio-economic backwardness, mental health, heredity, upbringing, socialization, education, etc.

need a different acumen

According to section 354(3) of the Code of Criminal Procedure, while awarding the death sentence, the judge must specify a “special reason” for doing so. it was in Bachan Singh Vs State of Punjab (1980) that the Constitution Bench suggested a humanitarian and reformist framework in the matter. It said that recourse to hanging can be taken only in the rarest of rare cases, that too when the “alternative option has been unquestionably closed”. thus, Bachan Singh The trial court needs to examine not only the gravity of the offence, but also the situation and the need for ‘correction’ of the accused. court, in Bachan Singhrefused to declare the death penalty unconstitutional. Nevertheless, it attempted to reduce the harshness of the death penalty by attempting to put an end to the indiscriminate use of penal provisions. It is abundantly implied that no individual is certainly ‘immutable’. This had the effect of practically undoing the provision of capital punishment, if taken in its letter and spirit. The requirement for ‘undisputed criminality’ of ‘alternative options’ (in the case of punishment, such as life imprisonment) sets a very high and even unenforceable benchmark for the court awarding the sentence. This person-centred approach, for its materialization, requires a distinct judicial acumen to identify the offender in his crowd.

but Bachan Singh There was more adherence to principle in its contravention than in compliance by the Supreme Court as well. in Raoji vs State of Rajasthan (1995), the Supreme Court held that it is the nature of the offense and not the offender which is German to decide the punishment. This is the exact opposite of what was stipulated in Bachan Singh, in Machi Singh Vs State of Punjab (1983), the Court indicated that the inadequacy of other punishments may justify the death penalty. It also rejected humanitarian liberalism Bachan Singh, The decision was taken by ignoring in many other cases also. Bachan Singh Principle, as noted by the Supreme Court itself Santosh Kumar Satish Bhushan Bariyar v State of Maharashtra (2009) And Rajesh Kumar Vs State (2011). Hindu‘s frontline The magazine (“A Case Against the Death Penalty”, released on September 7, 2012) contained a list of 13 convicts who were convicted, illegally and wrongfully, in separate reported cases decided by the Supreme Court itself. He was ordered to be hanged by dismissal. Bachan Singh Visit.

This grave judicial error has to be taken into account while the court revisited the issues relating to mitigation factors and individual-centred sentencing policy in the Irrfan case. In the process, concrete guidelines for such a policy may need to be considered.

overuse and abuse

But Indian experience shows that whenever the Court tries to reduce the rigor of the penal provisions with a balanced approach, instead of diluting the provision, there is an overuse or misuse of state apparatus (including police, prosecution and court). keeps on. provisions. Supreme Court’s decision Kedar Nath Singh Vs State of Bihar (1962) is an example. The Supreme Court upheld the validity of the sedition law (Section 124A of the Indian Penal Code) with the condition that it can be invoked only when violence is incited. But the state rarely acts on the basis of interpretation of the law. Several people have since been charged with sedition just for words, innocent tweets or harmless jokes. The apex court is now seriously considering the need to reconsider Kedar Nath Singh on one’s own.

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It is true that Bachan Singh did not elaborate in concrete terms about the mitigating factors and the methods of collecting them to prevent the death penalty. Nor did it elaborate on issues such as the burden of proof and the standard of proof. As Anoop Surendranath, Nitika Vishwanath, and Preeti Pratishruti Das argued in a recent paper, “there may be gaps”. Bachan Singh itself”. Bachan SinghThe Supreme Court may now have to ask a more fundamental question which is presented and negative in Bachan Singh – The question of the constitutional validity of the death penalty. The judiciary needs to learn a lot from history.

poor most affected

In India, as elsewhere, the poor are punished instead of the rich. The number of illiterate and illiterate people sentenced to death is more than the educated and literate people. in Williams vs Taylor (2000), the US Supreme Court held that the death penalty could be avoided by a defense attorney’s failure to uncover the mitigating factors, making legal aid ineffective. Therefore, it violates constitutionally guaranteed rights. The legal aid to the poor facing serious charges is not satisfactory in the Indian scenario. In the absence of proper defense, guilt is proved. And even in the case of sentencing, the mitigating factors have either not been placed before the trial court or have not been sufficiently persuaded to persuade the trial judge to avoid the death penalty. There is a clear contradiction between Indian legal pluralism and the marginalized.

case review

In the present case the Court has to develop a legal tool to obtain a comprehensive report relating to the socio-economic and hereditary background of the accused from experts in the fields of social work, psychiatry, psychology, anthropology etc. Nevertheless, there may be inherent inequality and arbitrariness in applying the principles due to a number of factors such as failure of judges, incompetence or backwardness of the parties, inadequacy of defence, lack of expert reports, disparity in practical application of the theory. Etcetera. As such, the new judicial instrument is also likely to meet the unfortunate fate of Bachan Singh Faced with judgment. Therefore, the right way forward is not just to fill in the blanks. Bachan Singh By setting concrete propositions for estimating mitigating factors, setting the standard of evidence, burden of proof, etc. may have to go to court again Bachan Singh In so far as it refused to declare the death penalty as a violation of the right to life envisaged under Article 21 of the Constitution. Worldwide, 108 countries have abolished the death penalty in law and 144 countries have done so in law or practice, according to the 2021 Amnesty report.

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In the Indian context, where judgmental error is frequent and the quality of adjudication is not assured, judicial abolition of the death penalty is essential. For this, the present matter will have to be referred to a larger Bench, with a view to rectify the fundamental lapse. Bachan Singh – Not explicitly declaring the death penalty unconstitutional.

Kaleeswaram Raj is a lawyer in the Supreme Court of India.