Justice more complete

Recent intervention by the Supreme Court suggests that there is a concerted effort to plug procedural gaps in death penalty sentencing, building on the vision outlined in 'Bachan Singh'

In a judgement delivered last month, the Supreme Court, in Manoj & others vs. State of MP, embarked on a significant attempt to re for the administration of the death penalty. Though the constitutional validity of the punishment was not an issue in this case, the judgment by Justices UU Lalit, Ravindra Bhat, and Bela Trivedi will occupy a prominent place in India's criminal justice jurisprudence for its reflections on the state of the death penalty in the country and its attempt to fix a broken sentencing system. However, achieving meaningful compliance across all levels of the judiciary will be a significant challenge and so will translating these procedural reforms into substantive fairness in determining punishment.

There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity. The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups. At the heart of this concern is the fact that death penalty sentencing has been, by and large, crime-centric. This approach has flown in the face of the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980). In essence, the ruling of the five-judge bench in this case laid down a framework to be followed by judges who have to choose between life imprisonment and death sentence. This framework made it binding for the sentencing judges to take into account factors relating to both the crime and accused and assign them appropriate weight. Judges couldn't decide to impose the death penalty only on the basis of the crime. The background of the accused, the personal circum- stances, mental health and age were considerations a sentencing judge had to account for. Judges were required to weigh "mitigating" and "aggravating" factors to ascertain if a case was fit for the death sentence and also determine if the option of life imprisonment was "unquestionably foreclosed".

The four decades since Bachan Singh have shown us that this framework has been followed more in breach. The truth of the matter is that there is utter confusion across all levels of the judiciary on the requirements of this framework and its implementation. An important reason for the breakdown is that factors relating to the crime-the nature of the crime and its brutality-are of- ten dominant considerations, and there is barely any consideration of mitigating factors. There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom. There is now empirical evidence that a vast majority of India's death row prisoners are extremely poor and often do not receive competent legal representation In the last four decades, we have tried to implement the Bachan Singh framework without really addressing the measures that need to be put in place to gather the information required to give effect to the verdict. 

The significance of last month's judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it. The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations. A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing. It asks the state and sentencing judges (as a condition for imposing death sentences) to establish that there is no probability of reformation of the accused. The verdict recognises that aspects of the accused's life, both pre-offence and post-offence in prison, are relevant. As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts. The state too must present material that speaks to a wide range of factors. The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.

Along with a suo motu writ petition on the collection of sentencing information in death sentence cases that the bench headed by Justice Lalit is currently seized of, there is now a concerted effort to plug procedural gaps in death penalty sentencing. It is obvious that the manner in which death penalty sentencing is being carried out across different levels of the judiciary is constitutionally unsustainable. These glaring sentencing errors have also been pointed out in a series of death sentence judgments from the benches headed by Justice L. Nageswara Rao in Court 5 of the Supreme Court.

The significance of the last month's judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it. The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations. A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.

The attempts to bring about procedural coherence and integrity will face significant challenges in the trial courts and the high courts and it is far from certain that these reforms will be meaningfully implemented in those forums. Apart from this issue of implementation, even if detailed and high quality sentencing information is to come into our courtrooms, a bigger challenge awaits. The judicial treatment of sentencing information is a Pandora's box that will inevitably have to be opened. The Supreme Court will have to provide a rigorous normative basis for consideration of these factors. In the absence of such foundations, death penalty sentencing will continue to be unprincipled and sentencing judges are not going to understand the need for this wide range of sentencing information. And that might well be a question that the public at large might ask: Why should we care about all these sentencing factors concerning the accused? The answer to that lies in crucial discussions on moral culpability for our actions in psychology and philosophy. There is now overwhelming evidence from psychology that criminality cannot just be reduced to terrible decisions by individuals in the exercise of their free will. All our actions are a result of a complex web of biological, psychological, and social factors and that understanding has a very significant bearing on discussions on criminality and punishment.

The writer is the SK Malik Chair Professor on Access to Justice and executive director, Project 39A at National Law University. Delhi. Project 39A provided pro bono legal assistance to the accused in Manoj & Ors. v. State of MP.