Akshay Thakur, Pawan Kumar, Vinay Sharma and Mukesh Singh have been depicted – both by the courts and in public discourse – as beastly, perverse, barbaric and barely human. In such an environment of hate and abhorrence, understanding them beyond their actions on the night of December 16, 2012, is no easy task, but is required as the courts engage in the onerous task of determining the appropriate punishment for these men. Given that India does not have mandatory death sentences, a court always has to choose between life imprisonment and a death sentence. In this context, considering the accused persons’ circumstances assumes enormous significance, since the choice has to be made after following due process. A significant part of this process is the collection of all appropriate evidence surrounding the accused, in a process known as mitigation investigation. Mitigation investigation in India unfortunately remains undeveloped and underutilised even 37 years after the Supreme Court urged sentencing judges in capital cases to take a liberal and expansive approach to interpreting an accused’s mitigating circumstances.
A holistic mitigation exercise should seek to elicit information about the life of the accused from multiple sources and build a life history that moves beyond a superficial representation of the accused’s life. It is a multi-step process of gathering and presenting evidence to a court that portrays an accused as embedded in their historical, biological, psychological and social context in order to urge the judge to render a more individualised and contextualised sentence in capital punishment cases. This process typically entails collecting documentary evidence and conducting interviews with key informants such as, but not restricted to, family members, partners, employers, school teachers, doctors, neighbours, spiritual guides as well as clients themselves. A full-fledged mitigation investigation will seek to uncover facts and experiences from the accused’s life – relating to their psychological, social, economic conditions, taking cognisance of their history of illness, abuse, accidents, etc. that renders possible an ethnographically rich and nuanced profile of the accused.
While police investigators in this case did a thorough job of collecting all relevant material over a period of three months to establish guilt, the defence counsel had just two weeks to investigate and present evidence on the lives of four adults, aged 19, 20, 26 and 28 years at the time of the offence. Although the court enabled prison access to conduct interviews with the accused, it neither specifically sought for nor received information about the accused from any other source. Following this order, counsel for the accused presented evidence of the socio-economic vulnerabilities, young age, absence of previous criminal conduct and attempts at reformation made by the accused while in prison. While the judgment cites the mitigating factors presented to it through affidavits from the accused, it does not engage with their relevance in understanding the accused, holding that they are slender in comparison with the crime.
A fundamental question then is why must one consider any mitigating factors for the accused who violated not only the right to life of another individual but also the social contract that binds us together? At the core of mitigation lies recognition of the fact that irrespective of social location, every individual lives with certain frailties or vulnerabilities that affect them in a multitude of ways. For most people the support systems of family and society along with their own individual capabilities provide sufficient counterbalance to offset these frailties and allow them to fulfil a healthy role in society. However, for many of those accused in capital punishment cases, these support systems are diminished and their individual vulnerabilities become overwhelming. It is therefore imperative that we recognise this intrinsic characteristic of humankind and understand that mitigation does not seek to justify an individual’s criminality but rather aims at providing a nuanced understanding of the vulnerabilities and frailties that shape the individual.
It is this understanding of the context of an accused that enables a court to determine whether he/she is capable of reformation. While a sentence of death is argued to be both retributive and deterrent in its effect, it is an option available to a sentencing court only after “unquestionably foreclosing” the alternative of imprisonment for life.
Collecting information about the circumstances from multiple sources requires time and skill. Courts hardly provide time, and lawyers are rarely trained to elicit information regarding traumatic experiences, vulnerabilities, mental illness and the countless other circumstances pertaining to an individual’s life. To move beyond understanding a criminal through the lens of the law requires engagement with multiple disciplines such as sociology, criminology, forensic psychiatry. In the absence of such a comprehensive understanding of an accused, sentencing courts will necessarily have much less information about the criminal than they do about the crime, thereby reducing the logic of imposing the death sentence to the brutality of the crime. The Delhi high court in Bharat Singh v. State of NCT has made progress in this direction by requiring a probation officer to submit to court a Social Investigation Report after making enquiries from jail authorities, families, experienced clinical psychologists and sociologists to determine whether an accused is capable of being reformed.
Who were the accused in the December 16 case? What were their life’s struggles and challenges? What made them participate in a crime so brutal, for the first time in their young lives? What was society’s role in the making and breaking of the accused? The defence counsels’ submission and the court’s acceptance of perfunctory mitigating factors fail to answer these questions. Had a thorough mitigation investigation been conducted, perhaps the court would not have had to reduce the logic for choosing the death sentence to assuaging the ‘tsunami of shock’ in society, or the brutality of crime. While our conscience may allow us to overlook procedural violations in the December 16 case, this is a dangerous precedent that should shake our confidence in the rule of law.
Rahil Chatterjee and Sahana Manjesh are associates at the Centre on the Death Penalty, NLU Delhi. Views expressed are personal.