(by Nishant Gokhale and Rahul Raman. The authors are Associates at the Centre on the Death Penalty, National Law University, Delhi.)
The Supreme Court’s recent decision in Mukesh & Anr. v. State of NCT of Delhi & Ors. (Delhi December 16 gangrape case) is an important judgment which is likely to form the basis for several criminal law decisions in the future. While reportage around the case revolves around the crime and the appropriateness of the death sentence, precious little has been written about the mechanics of the sentencing process in the present case. Without commenting on the outcome, this article critically examines the procedure followed by the Supreme Court in sentencing Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Kumar to death.
In this case, the Court was called upon to adjudicate a plea raised by an amicus curiae appointed in the case who argued that sentencing safeguards under section 235(2) of the Criminal Procedure Code, 1973 were breached by the Trial Court and remained unremedied up till the Supreme Court. The sentencing was not individualised to each accused, there was no personal hearing and no genuine effort to elicit relevant mitigating circumstances was made by the Trial Court. The Supreme Court implicitly agreed with this submission and presented itself with two alternatives; to remand the matter back for de novo sentencing or to remedy the fault by considering material on sentence itself. In determining this issue, the Court relied on a three-judge bench decision from 1977, in the case of Dagdu v. State of Maharashtra. Dagdu reached two significant conclusions germane to the present discussion. Firstly, that “Remand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.” Secondly, that where the court concluded that there was a defect in the sentencing process, it could remand the matter back to the trial court for a de novo sentencing hearing or itself cure the defect by allowing affidavits and materials to be filed on sentencing. The Supreme Court’s choice of the second option calls for comment.
The Court’s refusal to remand the matter back to the trial court is based on tenuous legal grounds. Another 3 judge bench from 1991 dealing with the death penalty in Malkiat Singh v. State of Punjab, held that the absence of a proper sentencing hearing would “normally have the effect of remanding the case” to the trial court. Several other two-judge benches have consistently recommended remand of matters where sentencing was faulty. The same bench which decided Santa Singh which Dagdu disagreed with also recommended remand in Narpal Singh. Several years later, Yakub Memon’s criminal appeal held that except where remand would cause delay, the appellate court must remand it to ensure compliance with section 235(2) CrPC. Ajay Pandit’s case, where curiously a judge who authored the present opinion was in, remanded the matter for sentencing and set a 6 month time limit for sentencing.
In the present case however, the courts only reason for refusing to remand the case was “Regard being had to the nature of the case, we think it appropriate to adopt the second mode” and proceeded to call for affidavits from both sides on sentence-determination. The reasoning adopted makes no reference to delay issue but only offers this thin and ambiguous reasoning.
The Court’s reliance on Dagdu also has raises a more fundamental problem. Dagdu was decided in an era before the authoritative exposition of the law on the death penalty by the constitution bench in Bachan Singh’s case. The majority in Bachan Singh held that a trial is bifurcated into the guilt determination phase and the sentencing phase and that during sentencing, circumstances related to the crime and the individualised sentencing for the criminal requires to be considered. Mitigating circumstances require to be liberally construed and the death sentence is not to be imposed except in the rarest of the rare cases, where the alternative punishment is “unquestionably foreclosed”. Relying on pre-Bachan Singh cases on sentencing is highly unsafe and in this case inherently contradictory as the question of remand was considered due to the absence of individualised sentencing.
The position in Dagdu is problematic for another reason. The Supreme Court appreciating evidence before it for the first time severely prejudices a convict due to the absence of re-appreciation. The constitution bench in Mohd. Arif’s case has acknowledged that “different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other”. To reduce the judge-centricity, the bench directed in that case adding two layers of protection. First, that all death penalty cases would be heard by three judges in the Supreme Court. Second that even after the Supreme Court upheld the death sentence, a limited oral hearing in open court would be available. Mukesh’s case follows the requirement of having three judges in form, but regrettably fails to apply the spirit of the decision. The convicts have therefore been deprived of the opportunity to have these facts considered by the Trial Court as well as two judges of the High Court.
This judgment also raises an important constitutional issue about the bounds of the Supreme Court’s original jurisdiction. Under Article 131 and the Supreme Court Rules, 2013 (‘Rules’) this jurisdiction is only available in civil suits between the union and states or inter se states. There is no original jurisdiction related to criminal proceedings. While there is no bar on proving facts through filing affidavits, sentencing is a factually intensive exercise. While cross-examination of the deponent is possible, it was not requested in this case. This leaves the court with no way to test the information provided through affidavits, which can sometimes be contradictory. Take for example, the submissions on the conduct of the convicts noted in the judgment. Atleast two convicts stated that they had good conduct and were seeking to reform themselves whereas the Jail Superintendent reported the convicts conduct to be “absolutely non-satisfactory and non-cooperative”. In the absence of any mechanism to resolve clashing facts, and no reasons being provided as to the treatment of this information by the Court, one does not know what weightage it eventually received.
In a case like the present one which has been in the media glare, it is imperative that judicial discipline and the rigours of criminal process are followed to the hilt. It is exactly in cases like the present that the Courts require to ensure that procedural fairness is not sacrificed at the altar of what many have hailed as a desirable outcome. The Supreme Court placing itself in a position of being the first and final arbiter of facts reinforces a dangerous precedent and risks being misunderstood as having taken the easy way out instead of acknowledging the breakdown in sentencing process in death penalty cases.
 Criminal Appeal No. 607-608 of 2017
 A third alternative of commuting the death sentence on the basis of breach of the procedure in section 235(2) as was done in Muniappan v. State of Tamil Nadu (1981) 3 SCC 11
 (1977) 3 SCC 68
 (1991) 4 SCC 341
 (1976) 4 SCC 190
 (1977) 2 SCC 131
 (2013) 13 SCC 1
 (2012) 8 SCC 43
 Order of the Hon’ble Supreme Court dated 3.2.2017 in Crl. Appeal No. 607-608 of 2017 reproduced at pg. 267 of the final order and judgment.
 (1980) 2 SCC 684
 (2014) 9 SCC 737
 See pgs. 274-275 and pg. 285 of the final order and judgment of the Hon’ble Supreme Court dated 5.5.2017 in Crl. Appeal No. 607-608 of 2017