The Supreme Court in a recent order referred issues relating to capital sentencing in India to a Constitution bench. The order is a landmark moment- for the first time in 42 years, the Supreme Court has not only acknowledged the deficiencies within the current state of the law, but also sought to address them. The capital sentencing law was first laid down in Bachan Singh v. State of Punjab (1980) in the form of a broad sentencing framework that left behind crucial substantive and procedural gaps. Unlike the dominant Supreme Court jurisprudence that has articulated inconsistent application of the Bachan Singh framework as the problem with capital sentencing, the referral order, in a markedly distinct approach, recognises the underdeveloped nature of the law.

Death Penalty: An Exceptional Punishment in Law

Under the Code of Criminal Procedure (CrPC), 1898, life imprisonment was an exceptional punishment for murder. A sentencing judge was required to give special reasons for choosing life imprisonment for an offence that was otherwise punishable with death. With the enactment of the 1955 CrPC, the requirement to give special reasons for life imprisonment was done away with, and gave both punishments- death penalty and life imprisonment- an equal footing.

The constitutionality of the death penalty was first challenged in Jagmohan v. State of Uttar Pradesh (1972), where the Supreme Court not only upheld its validity, but also held that a choice between either of the punishments was constitutional, based on the assumption that a judge would act upon established judicial principles. Deeming this to be sufficient, the bench in Jagmohan refused to lay down a law to guide capital sentencing.

However, the 1973 CrPC changed the legal position which remains in force to date. It introduced section 354(3) which stated that the imposition of the death penalty must be accompanied by “special reasons.” In doing so, the law recognised death penalty as an exceptional sentence requiring special reasons, while retaining life imprisonment as the normal sentence. This was a significant shift in the legal position which was not in play when the constitutionality of the death penalty was challenged in Jagmohan.

The Bachan Singh framework

The only time after the recognition of the death penalty as an exceptional punishment the constitutionality of the death penalty has been challenged was in Bachan Singh. While upholding the constitutionality, the majority decision in Bachan Singh acknowledged the unguided discretion available to sentencing judges in deciding between death penalty and life imprisonment, and laid down a sentencing framework. In its worry of overstepping into the legislative domain, the bench restricted itself to a broad framework.

Bachan Singh mandates sentencing judges to identify and weigh aggravating and mitigating circumstances related to both the crime and the convict. Aggravating circumstances are those that increase the culpability of the convict while mitigating circumstances reduce it. For instance, a previous conviction in a similar case is considered as an aggravating circumstance. Similarly, youth is considered mitigating, both in light of the decision-making capacity due to the young age and the probability to reform. Besides weighing these circumstances, judges are also required to meaningfully rule out the normal alternative punishment of life imprisonment. This means that judges cannot impose death sentence if aggravating circumstances outweigh mitigating ones. An additional step in Bachan Singh requires them to “unquestionably foreclose” life imprisonment. Many recent three-judge bench decisions have held that life imprisonment can be said to be foreclosed only when the aim of reformation is unachievable (see here, here and here). Death sentences can only be imposed in the “rarest of rare cases when the alternative option of life imprisonment is unquestionably foreclosed.”

Lack of Real, Effective and Meaningful Capital Sentencing Hearing

The Bachan Singh framework gives life to individualised justice that is envisaged in section 235(2) of the CrPC. Section 235(2) divides a criminal trial into two phases- guilt and sentencing. This bifurcation is meant to provide time and opportunity to convicts to submit evidence and arguments on the question of sentence. In capital cases, the importance of section 235(2) cannot be overstated because judges have to consider both aggravating and mitigating circumstances pertaining to the crime and the convict. While circumstances of crime are easily accessible through the case record, circumstances of the convict require to be collected and presented. A bifurcated trial allows time and opportunity for the defence team to do this.

However, the purpose of this provision and the sentencing framework- to provide sufficient time and opportunity- gets defeated when judges sentence convicts to death with little or no gap between conviction and sentencing hearings. In fact, same-day sentencing is a common practice adopted by trial courts in death penalty cases. It completely defeats the vision of Bachan Singh to have judges consider both circumstances of the crime and convict in deciding the punishment. However, it is important to note that the problem is not merely one of poor implementation. As acknowledged by the referral order, the question of sufficient time has not been considered by the Supreme Court. Besides, there are cases holding that same-day sentencing in and of itself does not vitiate a sentencing hearing (here, here and here). Settling the law on the issue of sufficient time and opportunity is going to be an important element of the Constitution bench’s endeavour. A related concern before the bench is the question of remedying errors at sentencing. While Bachan Singh did not address it, some Supreme Court decisions have held that appellate courts can cure the sentencing defect at the trial level. However, this takes away from the right of the convict to have their mitigation considered by courts at three levels

Another serious concern that plagues capital sentencing and has rightly been recognised by the referral order is the lack of a uniform sentencing framework. While several Supreme Court decisions (here, here and here) and the 262nd Law Commission Report on the Death Penalty have articulated inconsistent application of the Bachan Singh framework as the main concern, the order takes a critical look at the state of the law itself. This approach, if carried over to the Constitution bench, will not only allow the Court to settle the law on crucial aspects but also confront practical challenges in the way of implementing it. For instance, as a Constitution bench reiterating and settling the law that judges cannot rule out life imprisonment if the convict can be reformed, only goes so far. The bench necessarily has to address normative questions relating to the relevance of reform in the sentencing framework, and procedural questions relating to the presentation of materials and evidence to meaningfully consider reform. In this regard, a recent three judge bench Supreme Court decision in Manoj v. State of Madhya Pradesh (2021) merits a special mention. Highlighting the importance of reformation in capital sentencing, the bench mandated a jail conduct, psychological and psychiatric evaluation report of the convict to assist the court in assessing reform.

Drawing from sentencing practices of trial courts over a 16-year period, Project 39A’s doctrinal study comprehensively documents substantive and procedural gaps in the capital sentencing framework that were left behind by Bachan Singh and remained unaddressed in the last forty-two years. These include the fundamental lack of clarity on the role and purpose of aggravating and mitigating circumstances, and the role of reformation in deciding on the question of life imprisonment. A uniform capital sentencing framework cannot become a reality unless these first principle questions are answered.

Conclusion

The Supreme Court’s recognition that the capital sentencing framework needs revision, and the move to address it by constituting a five-judge bench after forty-two years, is laudable. However, given that the constitutionality of death penalty rests on a principled and not an arbitrary sentencing framework, an extremely tough and herculean job lies ahead for the Constitution bench.

Lakshmi Menon is currently working with Project 39A as an Associate (Research). She completed her BA.LLB at Symbiosis Law School (Hyderabad) in 2022. Her fields of interest include international human rights and gender justice.