An Expert Explains - Reforming Death Penalty - Explained News, The Indian Express

06/10/2022, 22:41 An Expert Explains: Reforming death penalty | Explained News,The Indian Express
Home Sections
Explained Political Pulse India Cities
ENGLISH | தமிழ் | Entertainment
Opinion বাংলা | മലയാളം |Lifestyle Technology
ગુજરાતી | हिं दी Videos | बिज़नेस
| मराठी | BUSINESS Spor
Newsletters
Thursday, Oct 06,

2022
EPAPER TODAY’S
PAPER JOURNALISM OF COURAGE
Crossword & UPSC Everyday Health Follow

TRENDING Cricket
Sudoku Key Explainers Specials Authors
kundli by date of birt
Clickastro
Home / Explained / An Expert Explains: Reforming death penalty

Premium
An Expert Explains: Reforming

death penalty
Examining issues raised in a specific case, the Supreme Court has suo motu
opened a review of the process by which courts award the death penalty.
What is the procedure by which judges get the relevant information for the
sentencing process, and why has the top court felt it necessary to
intervene?
Written by Anup Surendranath
Updated: April 5, 2022 11:32:18 am
https://indianexpress.com/article/explained/explained-reforming-death-penalty-7851400/ 1/18
Home Explained Political Pulse India Cities Opinion Entertainment Lifestyle Technology Videos Spor
The paths of reforming the death penalty on the one hand and abolishing it on the other, go alongside
each other for a very long distance.
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.
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. This week,
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?
Learn DevOps With KodeKloud®
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.
SUBSCRIBER ONLY STORIES View All
Premium Premium Premium Premium
UPSC Key-October World Bank says Remembering How Carlsen would

6, 2022: Why you 70 million plunged Indian tennis great, need to cheat just
should read into poverty in Naresh Kumar, who once in a game of
‘Committees of 2020: What caused passed away on chess to be
Parliament’ ... setb... Septemb... invinc...
Prices start as low as Rs 2.5 per day
The Expert
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. There
was an indicative list of factors that the judgment identified as being relevant, but it
was clear that it was not meant to be an exhaustive list.
ADVERTISEMENT
Learn DevOps
With
KodeKloud®
KodeKloud Helps You
Build A Successful
DevOps Career. Sign Up
Today & Get 50% Off.
KodeKloud™ Sign Up
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.
Best of Explained
How Carlsen would need to cheat just once in a game of chess to be invincible
Parliament Committees, their leaders, and their role in law-making

Nobel Prize in Chemistry: Who are the winners, and what is their work?
CLICK HERE FOR MORE
What is the reason for this?
ADVERTISEMENT
Learn DevOps
With
KodeKloud®
KodeKloud Helps You
Build A Successful
One of the main reasons is that very sparse sentencing information about the
accused is brought before the judges. While the judgment in Bachan Singh did
develop a framework, it was a framework that depended on the relevant
information brought before the court. But the framework did not have any
mechanisms to ensure the actual collection of such information and its
presentation before judges.
This has resulted in a situation where there is barely any meaningful information
about the accused that enters the sentencing process. It is an empirical reality that
the vast majority of death row prisoners are economically vulnerable and very
often receive poor legal representation (see Project 39A’s Death Penalty India
Report 2016). As a result, they do not have access to professionals and experts with
the necessary training and skill sets to undertake the complex exercise of collecting
mitigation information.
Also, sentencing judges have often dismissed the consideration of mitigating factors
depending on their perception of the crime despite there being no basis in the law
for dismissing the relevance of such factors. It points to a deeper gap — that there
has been no real guidance on how judges must go about assigning weight to
aggravating and mitigating factors, and how they should approach weighing one
factor against another.
WhatExplained
Home is mitigation,
Politicaland
Pulsewhat
IndiaareCities
mitigating
Opinionfactors?
Entertainment Lifestyle Technology Videos Spor
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.
ADVERTISEMENT
Learn DevOps
With
KodeKloud®
KodeKloud Helps You
Build A Successful
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.
Check Out Express Premium
Express Investigation — Part 3: Textbook revision slashes portion in history on Islamic rulers of India
Big shortfall in hiring of ex-servicemen across govt depts, posts: Data
What West Seti power project can mean for India-Nepal ties
CLICK HERE FOR MORE
Who can collect all this information?

ADVERTISEMENT
Learn DevOps
With
KodeKloud®
KodeKloud Helps You
Build A Successful
The Supreme Court has recognised that it is important to collect this complex
interplay of information sentencing is to be done in a proper manner. The
judgments in Santa Singh (1976) and Mohd Mannan (2019) have recognised the
interdisciplinary nature of such an exercise, and that it requires professionals other
than lawyers to collect such information.
The task is not something lawyers are trained to do — that is the reason the
American Bar Association’s 2003 Guidelines for the Appointment and Performance
of Defence Counsel in Death Penalty recognises the role of a mitigation specialist
with a clearly defined role that goes beyond what lawyers can do.
ADVERTISEMENT
Learn DevOps
With
KodeKloud®
KodeKloud Helps You
Build A Successful
Also in Explained |Why Indian Armed Forces don’t use the term ‘martyr’ for
personnel who die in the line of duty
Is this practical in India’s justice system?

There must be a very high degree of fairness in a system that is interested in

subjecting individuals to the experience of death row, and ultimately taking lives
through the instrumentality of law. With that as the starting point, the criminal
justice system needs to do all it can to ensure that systems are created for
procedural fairness.
The question we need to start with is:

“What does fairness and individualised
justice require in death penalty cases?”
We cannot start by asking the
“practicality” question and then define
the requirements of fairness/
individualised justice accordingly.
Can procedural reforms address the

broader concerns with the death
penalty?
Justice Harry Blackmun who served on the United States Supreme Court for 24
years (1970-94) started out being a strong votary of the death penalty, and was part
of decisions to restore the death penalty in the US. For most of his time on the
Bench, Justice Blackmun tried to bring in procedural reforms to make the American
death penalty system fairer.
But ultimately, in his last year in the court, he declared that efforts to reform the
death penalty had failed, and that it was impossible to achieve the required
fairness. “I no longer shall tinker with the machinery of death,” he famously
declared.
The paths of reforming the death penalty on the one hand and abolishing it on the
other, go alongside each other for a very long distance. Every instance of
engagement on reforming the death penalty throws light on the inherent
unfairness of using the death penalty, especially in a system like ours.
DELHI NEWS
1 Delhi excise policy: 2 Minor girl allegedly 3 Gurgaon property dealer
Court extends raped inside school killed as SUV hits

businessman Sameer washroom, Delhi Police motorcycle, drags it for
Mahendru’s ED custody file FIR several metres
by four days
More from Delhi
Newsletter | Click to get the day’s best explainers in your inbox
© The Indian Express (P) Ltd
First published on: 04-04-2022 at 04:42:20 am
NEXT STORY
Time to bid goodbye to AFSPA
TAGS: An Expert Explains Express Explained Express Premium
Post Comment
Rudraprayag: The price (& size) of these hearing aids might surprise
you
Hear.com | Sponsored
ADVERTISEMENT
KODEKLOUD™
Learn
DevOps
With
KodeKloud®
KodeKloud Helps You Build
A Successful DevOps
Career. Sign Up Today &
Get 50% Off.
Sign Up
MORE EXPLAINED
Explained
Annie Ernaux:
Memoirist of the
personal, political and
the universal
Explained
Carlsen would need to
cheat just once in a
game to be invincible
Explained
How protests in Iran cut

Home Explained Political Pulse Indiaof national
to the heart Cities Opinion Entertainment Lifestyle Technology Videos Spor
identity
Explained
Parliament Committees,
their leaders, and their
role in law-making
BEST OF EXPRESS
India abstains from

voting on holding
debate on China's
treatment of Uyghur
Muslims
Haryana sends cough

syrup samples for
testing after WHO alert
on Gambia deaths
Entertainment
Maja Ma movie review:
This Madhuri Dixit-
Gajraj Rao film needs
more maja
Entertainment
Angry Jaya Bachchan
lashes at fans as they
mob Abhishek
Bachchan for selfies at
Kali Bari temple: 'Sharam nahin aati?'. Watch
Trending
‘But why’: Balenciaga teams up with Lay’s to
make bag that looks like a pack of potato chips
Trending
Two UP youths rescued
from getting washed
away in Uttarakhand.
Watch
Sports
India vs South Africa
1st ODI Live Score
Updates
Sports
Qatar World Cup will be
my last: Lionel Messi
Opinion
Across world,
foundations of major
political systems are
under challenge
Explained
Annie Ernaux:
Memoirist of the
personal, political and
the universal
Lifestyle
Virat Kohli on his worst
food experience: 'It was
a nightmare for
vegetarians'
Technology
Google Pixel 7, Pixel 7
Pro launched in India
ADVERTISEMENT
CLICKASTRO
kundli by
date of
birth
Your Kundali with
Predictions, Remedies,
Yogas, Doshas, Transits
and much more.
Open
MUST READ
Sports
India vs South Africa
1st ODI Live Score
Updates
Sports
Qatar World Cup will be
my last: Lionel Messi
Sports
Borders blur as Bedi,
Intikhab catch up
Technology
Google Pixel 7, Pixel 7 Pro launched in India
Technology
Asus Zenbook S13
OLED review: Sleek and
powerful
Technology
Why robots could play a
bigger role in distant
space stations of the
future
Lifestyle
Virat Kohli on his worst
food experience: 'It was
a nightmare for
vegetarians'
ADVERTISEMENT
EXPRESS OPINION
Opinion
Across world,
foundations of major
political systems are
under challenge
Opinion
Mallikarjun Kharge's
unofficial official
candidature: How
Congress has failed
itself
Opinion
“IPO-isation” of political
Home Explained Political Pulse Indiaahead
manifestos Cities
of Opinion Entertainment Lifestyle Technology Videos Spor
polls
Opinion
In a society that defines
women by marital
status, can the SC
judgment on abortion
make a difference?
Oct 06: Latest News
Pakistan doesn’t have

Virat Kohli at No.4,
Babar Azam should
play there: Aaqib Javed
13 Indians taken
illegally to Myanmar
reach Chennai after
being rescued: Centre
Sanghavi: Anti-social
elements, not any
community, behind
Kheda clashes
Fire breaks out at

Delhi’s Gandhi Nagar
textile market, 150
firemen, 35 tenders
deployed
Ayodhya Ram temple

head priest demands
immediate ban on
‘Adipurush’, says it
wrongly depicts deities
IBA allows return of

Russian, Belarus boxers
with flags and anthems
J&K: Civilian killed in

‘accidental’ firing in
Pulwama, cop arrested
Delhi CM Kejriwal, actor Prabhas attend Ramlila

at Red Fort
Caught stealing, 22-

year-old stabs elderly
woman to death in
Outer Delhi
Mohan Bhagwat’s
remarks on population
‘balanced’, he didn’t
point fingers at
particular community: S
Y Quraishi
ADVERTISEMENT
TOP CATEGORIES
Explained News Political Pulse Latest Opinion Mumbai News
Delhi News Pune News Bangalore News Bollywood News
Health News India News Sports News Lifestyle News
Jobs Mobile & Tabs Tech Reviews Gadgets
Mobile & Tabs Food & Wine Travel Fitness
TRENDING NEWS
Horoscope India News Art & Craft Classes For Fitness Classes For Kids
Kids
Dance Classes For Kids Entertainment News UPSC News Buy All-Access Pass
Subscribe
Home To The Indian
Explained Buy Digital
Political Pulse India Premium
Cities Opinion Sushmita Sen Share
Entertainment First
Lifestyle FIFA U-17 Women's
Technology Videos WC:
Spor
Express Look Of Taali:
DU Admissions 2022 Apple Watch Ultra Review: Ponniyin Selvan I Box Share Market Today
Office Collection Day 6: Updates:
LATEST STORIES
Rahul Yatra Day 29: Sonia U.S. Players ‘Angry, Karnataka Common Annie Ernaux: Memoirist
Joins March, Crowds Exhausted’ After Report Entrance Test Counselling Of The Personal, Political
Highest Since Karnataka On Abuse, Says Megan To Start Tomorrow And The Universal
Leg Began Rapinoe
Valley Youth Killed In Minor Girl Allegedly Raped Watch: Sanju Samson’s Simply Not EC’s Business:
‘Accidental’ Firing: ‘When Inside School Washroom, Gorgeous Six Against Congress On Poll
A Convoy Passed, He Delhi Police File FIR South Africa In 1st ODI Watchdog’s Freebies
Would Tell Us To Stop…Let Letter
Them Go First’
FOLLOW US
DOWNLOAD APPS
The Indian Express website has been rated GREEN for its credibility and trustworthiness by Newsguard, a
global service that rates news sources for their journalistic standards.
EXPRESS GROUP
The Indian Express ieTamil.com
The Financial Express ieBangla.com
Loksatta ieMalayalam.com
Jansatta ieGujarati.com
inUth The ExpressGroup
MyInsuranceClub Newsletters
26/11 Stories of Strength Ramnath Goenka Excellence in Journalism Awards
Online Classes for Kids Light House Journalism
Compare Term Insurance

QUICK LINKS
T&C Privacy Policy
Advertise with Us Brand Solutions
Contact Us Subscribe
Statutory provisions on reporting (sexual offenses) This website follows the DNPA’s code of conduct
CSR
Copyright © 2022 The Indian Express [P] Ltd. All Rights Reserved

An Expert Explains - Reforming Death Penalty - Explained News, The Indian Express

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

An Expert Explains - Reforming Death Penalty - Explained News, The Indian Express

Uploaded by

Copyright:

Available Formats

06/10/2022, 22:41 An Expert Explains: Reforming death penalty | Explained News,The Indian Express

Thursday, Oct 06,

Crossword & UPSC Everyday Health Follow

kundli by date of birt

Home / Explained / An Expert Explains: Reforming death penalty

An Expert Explains: Reforming

Written by Anup Surendranath

Updated: April 5, 2022 11:32:18 am

What has caused the SC to examine practices in death penalty sentencing?

Learn DevOps With KodeKloud®

The court is undertaking an exercise to reform the procedures by which

SUBSCRIBER ONLY STORIES View All

Premium Premium Premium Premium

UPSC Key-October World Bank says Remembering How Carlsen would

Prices start as low as Rs 2.5 per day

Parliament Committees, their leaders, and their role in law-making

CLICK HERE FOR MORE

What is the reason for this?

It is a fundamental tenet of criminal law that sentencing must be individualised, i.e,

The idea of mitigation is to give practical application to considerations of culpability

Check Out Express Premium

Big shortfall in hiring of ex-servicemen across govt depts, posts: Data

CLICK HERE FOR MORE

Who can collect all this information?

Is this practical in India’s justice system?

There must be a very high degree of fairness in a system that is interested in

The question we need to start with is:

Can procedural reforms address the

1 Delhi excise policy: 2 Minor girl allegedly 3 Gurgaon property dealer

Court extends raped inside school killed as SUV hits

More from Delhi

Newsletter | Click to get the day’s best explainers in your inbox

© The Indian Express (P) Ltd

First published on: 04-04-2022 at 04:42:20 am

TAGS: An Expert Explains Express Explained Express Premium

How protests in Iran cut

India abstains from

Haryana sends cough

Oct 06: Latest News

Pakistan doesn’t have

Fire breaks out at

Ayodhya Ram temple

IBA allows return of

J&K: Civilian killed in

Delhi CM Kejriwal, actor Prabhas attend Ramlila

Caught stealing, 22-

Explained News Political Pulse Latest Opinion Mumbai News

Delhi News Pune News Bangalore News Bollywood News

Health News India News Sports News Lifestyle News

Jobs Mobile & Tabs Tech Reviews Gadgets

Mobile & Tabs Food & Wine Travel Fitness

The Financial Express ieBangla.com

inUth The ExpressGroup

26/11 Stories of Strength Ramnath Goenka Excellence in Journalism Awards

Online Classes for Kids Light House Journalism

Compare Term Insurance

Advertise with Us Brand Solutions

You might also like