(This article originally appeared on the criminal law blog Proof of Guilt.
The signs outside courtrooms at the Supreme Court of India, informing law interns that they cannot be accommodated on Mondays and Fridays, speaks volumes about the furore that are ‘Miscellaneous Days’. The astounding number of cases on board are often heard for less than a couple of minutes, and their fates sealed with either the word ‘notice’, or ‘dismissed’.
Exercising its power under Article 136, the Supreme Court on every Monday and Friday decides countless ‘Special Leave Petitions’ by determining whether they deserve to be heard as appeals. The exercise of this power in the context of death sentence cases has long been a niggling constitutional question. On the one hand we have the Supreme Court’s profound recognition of the stakes involved through its observation in Mohammed Ajmal Mohammad Amir Kasab [(2012) 9 SCC 1] that in death penalty cases it has been “the time honoured practice of the Supreme Court to examine the material on records first-hand and come to its own conclusion, unbound by the findings of the Trial Court or the High Court”.
This recognition sits rather uncomfortably with the fact that that the court has dismissed the SLPs in limine of 9 death row prisoners since 2004. However, this practice of the Supreme Court became constitutionally unviable after the judgment in Mohd. Arif [(2014) 9 SCC 737, later itself reviewed in 2016], whereby open court hearing of death sentence review petitions became mandatory and was recognised as part of Article 21 (review petitions are usually decided in chambers and open court hearings granted on discretion of the judges).
The November 2018 judgment in Babasaheb Kamble [R.P. (Crl.) 388 of 2015, decided on 01.11.2018] [applied in Jitendra, R.P. (Crl.) 324 of 2015, decided on 01.11.2018] seeks to resolve this constitutional tension by ruling that in limine dismissals of death sentence cases will have to necessarily accompanied with reasons at least for the sentencing part. I argue that the terms of this resolution in Kamble are unsatisfactory to the extent that the distinction it draws between conviction and sentencing is untenable in law.
Mohd Arif, and the Problem for In Limine Dismissals for Death Cases
To understand concerns with the terms of the resolution in Kamble, it is important to first understand the constitutional underpinnings of the judgment in Mohd. Arif. The Supreme Court aptly carved out death sentence cases as a distinct category altogether, recognising its irreversibility. Considering this distinction, the Court observed that even at the stage of review, cases involving the death penalty are such that the "Bar-Bench dialogue" by way of oral hearing becomes too precious a right to be parted with. Further, the Court opined that different judicially trained minds can apply different conditions while coming to the conclusion of awarding death sentence or otherwise. Such a procedure for the review of death sentence cases, the Supreme Court held, was in compliance with the principles of "due process of law".
As a result of Mohd. Arif, the Court's power under Article 136 to dismiss death sentence SLPs in limine presented a constitutional conundrum. The right to have a death sentence review petition heard in open court meant that the petitioners would have to demonstrate the "error apparent on the face of record" (as required by the Supreme Court of India- Handbook on Practice and Procedure and Office Procedure). In limine dismissals then fell into question, as the determination of such error became impossible when the order did not record reasons reflecting the application of judicial mind. In effect, in liminedismissal of death sentence SLPs rendered Mohd. Arif pointless.
But given the text of Article 136, it would be untenable to argue that the Supreme Court had to necessarily admit all death sentence SLPs. Article 134 already recognises the death sentence cases in which the Supreme Court must hear the appeal. The only way to reconcile this limitation and the mandate in Mohd. Arif was to make the argument that in limine dismissals of death sentence SLPs while being permissible had to necessarily be accompanied with reasons. Reasoned in limine dismissals would enable an effective open court review within the constitutional scheme.
Kamble and its Discontents
Kamble seeks to put a lid on this question by holding that in limine dismissals must necessarily have reasons on the point of sentence. The focus on sentencing reasons is heavily reliant on a progressive constitutional viewpoint. Reliance is placed on Rajesh Kumar [(2011) 13 SCC 706], observing that the expression ‘hear the accused’ does not confine merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place material that have a bearing on the sentence. The Court took the view that while upholding the death sentence, it is the obligation of a judge to give reasons as to why the alternative of life imprisonment is unquestionably foreclosed.
This determination is critical, especially when the decision is to be challenged in review for an ‘error apparent’. Such errors while determining the sentence could be many — reliance on cases declared per incuriam, consideration of irrelevant aggravating factors, non-consideration of mitigating factors, etc. In that context, it is imperative that the SLP dismissal record the reasons for confirmation of the death sentence. Kamble now ensures that there is a concrete basis for filing and arguing of the review petition on sentencing.
However, limiting the requirement of reasons to sentencing alone, and not conviction, is at odds with the right recognised in Mohd. Arif. That decision held death sentence review petitions will be heard in open court without making a distinction between conviction and sentencing. Therefore, the concern with in limine dismissals prior to Kamble continues as regards convictions in death sentence cases. The purpose of re-appreciating the material on conviction also echoes the sentiment of the Supreme Court, often reiterated, that a majority of convicts belong to the weaker sections of the society. The poor are more often than not at the receiving end in access to justice and access to the remedies available — something evident from the recent SCLSC Report through Project Sahyog.
The Supreme Court has been conscious of the need to agitate the claim of innocence in multiple stages, considering the nature of punishment imposed at the back of inadequate legal representation. The need for such multi-level checks is amply demonstrated by the Death Penalty India Report, which reported that between 2000-2015, of the 1,486 death sentences imposed by the trial courts, 29.8% (443 prisoners) were acquitted by the end of the judicial pyramid. Affording such checks acknowledges the possibility of different judicially trained minds appreciating evidence differently and affording the highest levels of constitutional protection before sentencing an individual to death. Acknowledging the high rate of reversals and the critical role of the Supreme Court in ensuring strict adherence to constitutional standards, the Law Commission in Report No. 262 also recommended doing away with in limine dismissals of death sentence SLPs.
The judgment in Kamble is significant for its procedural tightening of the death penalty and is also a recognition of the sentencing woes that afflict death penalty jurisprudence. It seeks a procedural cure for this problem by ensuring that more judges apply their mind to the confirmation of the death sentence. Of course, the question before the court was one of procedure, but in the current position of death penalty jurisprudence suffers from certain fundamental sentencing questions that need judicial clarity and procedural fixes can only take us that far. The procedural tightening in Kamble is of great significance but it must also be accompanied with a full-fledged acknowledgment of the poor legal representation that death row prisoners receive. Mere acknowledgment is insufficient, and what we need is a robust judicial discourse on its consequences in terms of constitutional and criminal law. Unfortunately, the judgment in Kamble by drawing a distinction between conviction and sentencing does not fully embrace this systemic reality.