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Death penalty:
Deciding the
rarest of the
rare
Sep 26, 2022 10:40PM
Forty-two years ago, the Supreme Court
took the view that the death penalty did
not violate the Constitution and
prescribed a framework it hoped would
ensure fairness in sentencing. The Court
has now come full circle in confronting
the reality that death penalty sentencing
has been anything but fair. In a
momentous ruling last week, the
Supreme Court has said that
fundamental aspects of death penalty
sentencing need re-examination and
resolution by a Constitution Bench of
five judges. Four decades and over 400
judgments after Bachan Singh v State of
Punjab (May 1980), a three-judge bench
has had the judicial courage to
acknowledge that there are serious
problems in India’s death penalty
régime, indicating that the current state
of death penalty sentencing is untenable.
While approving the constitutional status
of the death penalty in May 1980, the
Supreme Court was acutely aware that it
had to ensure that the imposition of
death sentences did not become an
arbitrary and subjective exercise in
individual cases. In determining which
individuals the law could subject to
death in a fair manner, it was integral
that the sentencing judges were deciding
according to the law and not on their
individual whim. Concerned with
fairness, Bachan Singh proposed a
sentencing framework towards ensuring
that the sentencing judge’s discretion to
choose between life imprisonment and
the death sentence was guided by
considerations that were relevant to the
law. Before imposing the death sentence,
Bachan Singh required the court to
weigh the aggravating and mitigating
circumstances (popularly known as the
“rarest of rare” case) and determine
whether the option of life imprisonment
is “unquestionably foreclosed”.
Over the years, multiple concerns have
emerged with this framework. The
courts have taken differing approaches
in which factors are relevant to
sentencing, how best to bring in factors
relevant to punishment, the ability of
poor defendants to bring in such
information, the weightage sentencing
factors must receive, and the
contentious role of public opinion. The
problem that the Supreme Court’s
reference to a Constitution Bench seeks
to remedy is the need to achieve
consistency on the requirements of a
fair, meaningful and effective sentencing
hearing.
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This is not the first time that the
Supreme Court has noticed that all is not
well with the Bachan Singh framework.
In 2009, in Santosh Kumar Bariyar v
State of Maharashtra, Justice S B Sinha
expressed concern about the lack of
uniformity in death penalty sentencing.
In 2018, Justice Kurian Joseph in his
minority opinion in Channu Lal Verma v
State of Chhattisgarh called for a relook
at the constitutional possibility of the
death penalty because of the
arbitrariness that had crept in.
Periodically, others too have brought out
this flaw. Lethal Lottery in 2008, and the
262nd Law Commission of India Report
in 2015, underscored the inconsistencies
in the Supreme Court’s approach to
death penalty sentencing. The Law
Commission recommended abolition due
to the irresolvable arbitrariness inherent
in death penalty law. In 2020, Project
39A’s doctrinal study of trial court
judgments from 2000–2015 evidenced
the inconsistencies in the application of
the framework, which often arose from
the confusion embedded in the
framework. It also highlighted that trial
courts were far too often imposing death
sentences without considering any
mitigating circumstances. We have
known long since that Bachan Singh’s
hope of fairness was nowhere near being
realised. Yet we continued unmoved.
In a series of recent judgments over the
last year, two benches of the Supreme
Court have repeatedly noticed that
courts below it have been sentencing
accused persons to death without having
sufficient material regarding them There
are structural and systemic reasons for
this. The reality is that in death penalty
cases, the accused are more often than
not poor, can ill-afford quality legal
representation, and scarcely have the
resources to put before the Court
meaningful mitigation information. In
addition to the lack of time, there is the
additional disadvantage that the accused
face where they are simply not in a
position to produce relevant mitigating
factors. In this background, Bachan
Singh’s hope rings hollow.
To address the problem of lack of
mitigation information, one bench of the
Supreme Court repeatedly called for a
probation officer’s report, jail conduct
report and a psychological evaluation of
the accused, while another bench was
deeply resistant to this idea. This speaks
to the absolute lack of clarity on how
death penalty sentencing should be
done. We currently have a situation
where one judgment of the Court (Manoj
& Ors v. State of MP) set in place
practical guidelines to ensure that courts
have sufficient material on the accused
before delivering a sentence of death at
every stage of the judicial process. At
the same time, there is another
judgment (Manoj Pratap Singh v. State of
Rajasthan), which is suspicious of this
process, deems it unnecessary and, on
the whole, entirely misunderstands
essential aspects of death penalty
sentencing. This is only the most recent
instance in a long line of cases where
there are contradictions in the Supreme
Court’s death penalty jurisprudence and
the approach to sentencing has been
divergent. The jurisprudence is now too
disparate for it to continue in the same
vein. The Court has now set for itself the
task to mend this divide, and begin
afresh the project of ensuring fairness in
death penalty sentencing.
Achieving fairness in sentencing
necessarily requires that the accused be
given time and resources to gather and
present such information in every single
case and at every judicial stage.
Concerns about the lack of resources
and capacity must not be allowed to
trump in a process which seeks to take
life through the law. It also necessarily
requires guarding against the deep
suspicion and implicit bias that accused
persons often face when asking for their
right to place their story on record. This
intangible but all too real disadvantage
must also be addressed by any process
striving for fairness.
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This year, 122 people have already been
sentenced to death by trial courts. The
challenge before the Supreme Court is
enormous in a criminal justice system
like ours. This reference order is in many
ways the Supreme Court acknowledging
that we can’t declare the death penalty
to be constitutional and then administer
it an unconstitutional manner. The
reference to the Constitution Bench is
then another attempt at infusing the
death sentence process with the values
of fairness and non-arbitrariness. The
Court is (perhaps quixotically) hopeful
that the serious problems with the death
penalty régime can be fixed. However,
the sheer lack of capacity and resources
that plague our barely held-together
criminal justice system betray its ability
to be fair.
The writers are with Project 39A,
National Law University Delhi.
Project 39A’s application for
mitigation access was converted into
the suo motu writ which has resulted
in the reference order
https://indianexpress.com/article/opinion
/columns/death-penalty-deciding-the-
rarest-of-the-rare-8174670/