Hard cases and good law

An apex court order has thrown light on appreciating mitigating evidence before sentencing death penalty

On February 3, the Supreme Court passed an order in the December 16, 2012 gang-rape case which could have far reaching consequences on the administration of the death penalty in India. Recognising that neither the trial court nor the high court considered any evidence regarding the mitigating circumstances of the accused before sentencing them to the death penalty, the court granted defense counsel extensive access to the accused in prison and sought relevant mitigating evidence.

In the landmark case of Bachan Singh (1980), the SC resoundingly laid down that a sentence of death can only be imposed by a court when the alternative of life imprisonment is unquestionably foreclosed. In aid of this determination, the court held that “great weight” be given to mitigating factors including the probability of reformation of the accused or the existence of extreme mental disturbance. However, India’s death penalty jurisprudence has since suffered from the lack of judicial guidelines on the collection or presentation of mitigating factors.

Through this order, the court has taken upon itself the extraordinary burden of appreciating mitigation evidence. To ensure an adequate mitigation exercise, the court has allowed defence counsel access to the accused, for two hours daily in a separate room, for over a fortnight. This is a significant milestone, as one of the biggest hurdles to effective mitigation exercise in death penalty cases, is the limited time granted by prison authorities for lawyer-client meetings, and the lack of a private space for such meetings necessary for a confidential conversation. The court has further directed defence counsel to file “necessary separate affidavits and documents on mitigating circumstances,” thereby imposing no limits on the nature of evidence which can be presented, giving teeth to the “liberal and expansive construction” of mitigating factors mandated in Bachan Singh.

Sentencing in death penalty cases in India is rendered ineffective due to the lack of procedural safeguards. Courts are accustomed to accept a mere enumeration of factors such as young age and number of dependents reducing the process of determination of sentence to an absurd mathematical calculation. The exercise to meet and gather all relevant information from the accused, his family and peers, or mental health and other experts, is rarely undertaken. While mitigation in other retentionist countries such as the US entails contextualising the prisoner within various environmental and mental factors, courts in India demand mitigating factors (the product) without imagining the mitigation exercise (the process). The court’s direction that defence counsel hold regular meetings in privacy and present details of relevant mitigating circumstances through an affidavit is a step towards enabling effective discovery of such circumstances.

The court has set a separate date for sentencing arguments, affording sufficient time for collection of mitigating evidence, departing from the disturbing trend of trial courts which conduct final arguments on conviction and sentencing on the same day. “Same day sentencing” disregards the time and preparation required for counsel to aid an effective sentencing hearing. Curiously, the related sentencing principle that the burden of making a case for death is on the prosecution due to the exceptional nature of the death penalty, was not endorsed by this court. The order directs defense counsel to present evidence first, hence reversing this burden.

The crucial question before the court was the determination of the appropriate cure to the lack of an individualised and effective sentencing procedure in the lower courts. While a procedural violation of such magnitude at the conviction stage would have resulted in a re-trial, the court in this instance chose to act as the first forum for an effective sentencing hearing. In the ’70s, the SC addressed this issue in two different ways. In Santa Singh (1976), the court took the view that a deficient sentencing procedure in a death penalty case warrants remand to the trial court for sentencing. Two years later, a larger bench in Dagdu (1978) held such a violation can be cured before the SC. The court in Dagdu did not contemplate the subsequent sentencing framework developed in Bachan Singh. By choosing the Dagdu route while supplementing it with procedural safeguards, the court may have ignored that in the option of remand to the trial court, the accused would have the opportunity to seek judicial scrutiny of the sentencing process, enabling a right to appeal. In Md. Arif (2015), the SC acknowledged that judicially trained minds can arrive at different conclusions on sentence in death penalty cases, making the right to appeal fundamental.

Today, the court is expected to hear arguments on sentencing. Given that sentencing courts rarely obtain relevant material necessary to determine a death sentence, it will be interesting to see the material which will be placed before the court, how this material will be argued by the counsel and considered by the court. It is now incumbent upon the counsel to seek all relevant material and effectively present mitigating evidence from all sources. Mitigation investigations must become an integral part of death penalty sentencing and irrespective of the final outcome in this case, the procedural safeguards in this order is a significant step in that direction. These safeguards should act as a bare minimum for trial and appellate courts. While significant concerns remain with death penalty sentencing in India, this order presents lawyers and judges an opportunity to be guided by all relevant information before determining whether life can be extinguished through the law’s instrumentality.