Recent trend in giving death penalty.

The purpose of the capital punishment is to develop fear in the mind of people and it operates as ominous warning to the public. The so called punishment is given to those offenders who are incurable, and thereby prevents repetition of crime as it is in the interest of the society.

The legislative history with regard to criminal punishment shows that there has been significant change in thinking and approach. Prior to 1955, normal rule was to impose sentence of death on a person convicted for murder and if lesser sentence was to be imposed, the court was required to record the reason.  

In 1955, court is free to award either death or life imprisonment and life imprisonment was the rule and death sentence is the exception.  

In 1973 – judgment shall state the reasons for giving life imprisonment and special reasons for death penalty.

In 1980 the landmark decision – bacchan Singh v. state of Punjab. – Court held that death penalty is constitutionally valid and not unreasonable; it should be imposed only on rarest of the rare cases with stating the special reasons. It is not violative of article 14, 19, 21 of the constitution.

But the bacchan Singh principle was followed more in its breach than in compliance even by the Supreme Court:  In 1983 – machhi Singh v. state of Punjab –court indicate that inadequacy of other punishment will justify the death sentence.

In 1995 - ravji v. state of Karnataka – apex court held it is the nature of crime and not the criminal which is germane for deciding the punishment. Similarly several other cases also decided by ignoring the principle in   bacchan Singh case which are santhosh Kumar satish bhushan bariyar v. state of maharatsra (2009)  & Rajesh Kumar v. state (2011).

The 47th law Commission in 1972 headed by Mr Gajendra Gadkar submitted a report for the requirements of sentencing where they have stated several requirements to be considered before awarding sentencing.  Those are;

1. The nature of the offence

2. The circumstances-extenuating or aggravating-of the offence

3. The offender's prior criminal record, if any

4. The offender's age, his professional or social record.

6. The offender's background (education, home life, sobriety and social adjustment etc)

7. The emotional and menacing nature of the offender

8. The prospect of rehabilitation and restoration

9. The possibility of treatment or training to the offender

10. Deterrence of the sentence.

A recent trend evolved in the evolution of jurisprudence around the death penalty in India may reset the judicial thinking in awarding capital punishment.

For decades, sentencing hearings have covered only basic details like the convicts immediate family background, educational qualifications, work before the arrest etc.

No effort was made to consider information pivotal for mitigation such as adverse childhood experiences, multi generational history of physical and mental health issues, exposure to traumatic events and other familial, social and cultural aspects which are crucial for individualized sentencing enquiry.  

During the last few months, while dealing with appeals against death sentence confirmation the apex court has examined sentence methodology from the perspective of mitigating circumstances more closely.

On April 22,2022  - in the instant case, irfan v. state of madhyapradesh  -  a bench of apex court led by justice UU lalit decided to critically examine the routine and abrupt way  in which trail judges impose death sentence.

About the case: Irfan alias bhag mevati, the trail court sentenced him to death just hours, after it found him guilty of gang rape in 2018. It was a case in which  the death penalty was awarded though the child did not die, the Madhya Pradesh high court , when the case come up in appeal, reasoned that the death penalty was an effective deterrent in view of the alarming rise in sexual abuse of children . The apex court  on the case , seemed to think that an individualistic approach that examines the social, economic , emotional and genetic components that constituted the offender rather than offence , would go a long way in evolving a just and judicious sentencing policy. According to court “one size fit for all” approach while considering mitigating factors during sentencing should end”  The bench indicated that the need for mitigating experts to assist the trail courts in reaching a correct conclusion on whether one should be sent to the gallows or not. 

This is a significant verdict which radically alters the death penalty jurisprudence, by a comprehensive examination of the multi- disciplinary wisdom relating to the crime, the criminal, and the punishment.

An analysis of the possible reasons to avert the death penalty is reflected in the series of recent verdict such as Lochan shrivas v. state of Chhattisgarh (2021) and bhagchandra v. state of Madhya Pradesh (2021).

Also, the court in mofil khan v. state of Jharkhand (2021), held that the “the state is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused.” And that “the court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme”. 

Thereby the onus has been placed upon the state to lead evidence to show that no reformation is possible and for the sentencing court to satisfy that a through mitigation analysis was done before the death sentence is awarded. The mitigating investigation must be done by professionals trained in psychology; sociology and criminology are required in addition to legal professionals.

Nevertheless, it is undeniable that there is a new wave of thinking in this underexplored domain of sentencing, which forms a key pillar of judicial work. The intervention of the supreme court of India in hopefully, framing guidelines around incorporation of a mitigation analysis and consideration of psycho- social reports of the prisoner at the time of sentencing is timely and necessary.