Revisiting death penalty jurisprudence

• A Bench of the SC has decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.
• The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.

Right approach

• An individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy.
• According to the Court, ‘one size fit for all’ approach while considering mitigating factors during sentencing should end.

Recent verdicts as pointers

• Possible reasons to avert the death penalty is reflected in recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).
• These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

Needed, a different acumen

• According to Section 354(3) in the Code of Criminal Procedure, while imposing capital punishment, the judge should specify “the special reasons” for doing so.
• It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.
  • Thus, Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused.
  • The Court refused to declare the death penalty unconstitutional.
  • It tried to do away with the use of the penal provisions.
  • It abundantly implied that no person is indubitably ‘irreformable’
• In Ravji vs State of Rajasthan (1995), SC said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.
  • This is diametrically opposite to what was laid down in Bachan Singh.
• In Machhi Singh vs State of Punjab (1983), the Court indicated that the inadequacy of other punishments could justify the death penalty.
• Several other cases also were decided by ignoring Bachan Singh doctrine, as noted by SC in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011).
• A magazine listed 3 convicts who were directed to be hanged in different reported cases decided by SC itself, illegally and erroneously, by discarding the Bachan Singh philosophy.

Overuse and misuse

• Whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.
• The judgment ofSC in Kedar Nath Singh vs State of Bihar (1962) is a case in point.
• SC endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) by saying that it could be invoked only when there is an incitement to violence.
• Bachan Singh did not, in concrete terms, elaborate on the mitigating factors and the methods to gather them to avert the death penalty.
• Nor did it explain the issues such as the burden of proof and standard of proof in detail.
• As argued in a recent paper, there could be “gaps within Bachan Singh itself”.
• Taking empirical lessons from Bachan Singh, SC may now ask the question of the constitutional validity of the death penalty.
• The judiciary needs to learn a lot from history.

The poor are most affected

• The numbers of the uneducated and the illiterate sentenced to death outweigh those who are educated and literate.
• In Williams vs Taylor (2000), the U.S. Supreme Court said that the failure of the defence lawyer in highlighting the mitigating factors that could lead to avoidance of capital punishment makes the legal assistance ineffective.
• Therefore, it infringes constitutionally guaranteed rights.
• In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory.

Revisiting the case

• The Court will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.
• There could be inherent inequality and arbitrariness in applying the principles because of multiple factors such as failure of the judges, incapacity or backwardness of the parties, the inadequacy of defence, deficits in the reports of experts, and disparity in the practical application of the doctrine, etc.
• There is a possibility for the new juridical device also meeting the unfortunate fate that the Bachan Singh verdict faced.
• Therefore, the true way ahead is not merely to fill up the blanks in Bachan Singh by laying down concrete propositions for assessment of mitigating factors, determination of standard of proof, the burden of proof etc.