While the Supreme Court judgment in Manoj & Ors. versus State of Madhya Pradesh may help reorient death penalty jurisprudence, problems of arbitrariness will persist until its guidelines are implemented by lower courts across India, the team from NLUD’s Project 39A tells The Leaflet.
On May 20, a Supreme Court bench consisting of Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi, in Manoj & Ors. versus State of Madhya Pradesh issued procedural guidelines to ensure that lower courts consider mitigating circumstances of an accused person at the stage of sentencing. In this judgment, the court commuted the death sentence of all the three accused persons to life imprisonment based on the probability of reformation.
Shruthi C.P. and Bhavesh Seth of the National Law University, Delhi’s (‘NLUD’) criminal justice research and legal aid program Project 39-A agreed to share with The Leaflet their interpretation of this judgment. Shruthi is Mitigation Associate and Seth is a Litigation Associate at Project 39A. In Irfan @ Bhayu Mevati versus State of Madhya Pradesh in March, Shruthi was allowed by the Supreme Court to conduct an in-person interview with Irfan (an accused on death row) to investigate the existing mitigating circumstances. Seth has also been involved in similar cases.
Edited excerpts from the interview:
Q: Please tell us how death sentencing works. What are the factors involved?
A: Unlike other punishments, death penalty trials are divided into two separate stages. After an accused is convicted of a death-eligible offence, the judge conducts a separate hearing on the question of sentence. At this stage, the convict must be given adequate opportunity to collect relevant material, lead evidence, and present arguments on why they do not deserve the death sentence. This requires presenting what are called ‘mitigating circumstances’.
If the court decides to impose the death sentence after hearing arguments, it must give special reasons to explain its decision. This requires courts to go beyond the facts of the crime and consider the circumstances of the criminal.
The majority opinion of the Supreme Court in Bachan Singh versus State of Punjab (1982), which laid down a framework for imposing death sentences, also seems to suggest that the determination of ‘special reasons’ under Section 354(3) of the Code of Criminal Procedure which requires sentencing judges to establish that the alternative option of life imprisonment under Section 302 of the Indian Penal Code (or other death-eligible offences) is unquestionably foreclosed. Thus, under the Bachan Singh framework, the death penalty can be imposed not only when the aggravating factors outweigh mitigating ones, but also when the alternative of life imprisonment is precluded.
The convict must be given adequate opportunity to collect relevant material, lead evidence, and present arguments on why they do not deserve the death sentence. This requires presenting what are called ‘mitigating circumstances’.
The circumstances of the criminal or mitigating factors can include a broad range of information that can span across an entire lifetime of an individual. It includes details like their upbringing, socio-economic background, age, criminal antecedents, mental condition, probability of reformation and rehabilitation, continuing family ties, whether the accused is a continuing threat to society, etc.
Bachan Singh requires the balancing of these mitigating factors and aggravating factors in deciding the punishment; the latter invariably relating to the brutality of the crime, the perceived lack of remorse, and the societal impact of the crime. These factors cannot merely be ‘balanced’ as in a balance sheet – the law requires courts to engage with the totality of aggravating and mitigating circumstances, and consider whether the death penalty is justified.
Q: What is the standard that the court considers while awarding the death penalty? In Shankar Kisanrao Khade versus State of Maharashtra (2013), three tests, namely, the rarest of the rare doctrine, crime test (aggravating circumstances) and criminal test (mitigating circumstances) were applied. Although you have referred to some tests above, can you explain all these tests to us together? Do you think these are settled tests?
A: The standard considered by courts in death penalty cases is the ‘rarest of the rare’ doctrine adopted in Bachan Singh. As per this doctrine, the death penalty can only be imposed in the most exceptional cases where the prosecution has established that the alternative punishment of life imprisonment is insufficient, based on the circumstances of the crime and the criminal. However, Bachan Singh does not provide much clarity on how this analysis is to be done.
Due to the vagueness of the ‘rarest of the rare’ heuristic, courts after Bachan Singh have adopted varied approaches to sentencing. A particularly problematic approach was the ‘balance-sheet’ approach in Macchi Singh & Ors versus State of Punjab (1983), where aggravating and mitigating factors are listed out and ‘balanced’ against each other. Invariably, this boils down to a simple counting exercise of the number of aggravating and mitigating circumstances. In Shankar Kisanrao Khade, the Supreme Court explicitly rejected this ‘balance-sheet’ approach. It came up with a different model that sequentially applies three tests – the crime test, the criminal test, and the rarest of the rare test.
Under the crime test, the court must be satisfied that there exist sufficient aggravating factors to justify the death sentence. At this stage, the court considers the enormity of the crime and the heinousness with which it was committed. Once the crime test is satisfied, the court proceeds to the ‘criminal test’, where it considers whether there exist any mitigating factors in favour of the accused.
Courts often focus only on aggravating factors such as the brutality of the crime and its heinousness in the final sentencing analysis. This crime-centric approach ignores the circumstances of the criminal, and lower courts rarely call for additional mitigating evidence during sentencing.
As per the court in Shankar Kisanrao Khade, the criminal test implies that a single mitigating factor would mean that the death sentence should not be imposed. In the court’s language, the crime test should be 100 per cent satisfied and the criminal test should be 0 per cent. Only if there are no mitigating factors in favour of the accused, the court applies the R-R test, that is, whether the case is the rarest of the rare. As per the Khade judgment, this test is society-centric in that, and it requires courts to consider factors such as society’s abhorrence and extreme indignation toward the crime. The court’s logic was that the death sentence should reflect the will of the people, not that of judges.
The Khade model of sentencing is not a settled position of law. While all three tests are applied in most cases, other judges’ benches have understood these tests quite differently. For instance, the crime and criminal test applied by the Supreme Court during sentencing does not require that mitigating circumstances be entirely absent. The crime and criminal test correspond to aggravating and mitigating circumstances respectively; and as per Bachan Singh, these must be weighed holistically, not merely identified or counted.
Q: Why do you say there is arbitrariness in sentencing procedure that imposes the death penalty?
A: The arbitrariness is at various levels. The Bachan Singh ‘rarest of the rare’ framework offers little guidance on how sentencing should be done or how relevant standards are to be assessed practically. In the absence of a clear understanding of ‘rarest of the rare’, different judges have adopted different criteria for sentencing. Particularly problematic approaches include the ‘similar cases approach’, ‘balance-sheet approach’ and the crime-centric model of sentencing where mitigating circumstances related to the criminal are entirely ignored. These approaches significantly dilute the principles recognised in Bachan Singh, particularly the exceptional nature of the death penalty and the need for individualised sentencing.
Courts often focus only on aggravating factors such as the brutality of the crime and its heinousness in the final sentencing analysis. This crime-centric approach ignores the circumstances of the criminal, and lower courts rarely call for additional mitigating evidence during sentencing. The doctrinal vagueness and the arbitrariness in the availability of mitigation material with courts lead to arbitrary outcomes.
Q: In your article written for The Hindu on the judgment in Manoj, you have written that “barely any information about the accused enters the courtroom during sentencing”. Can you explain this further?
A: Our death penalty sentencing study in trial courts published in 2020 – Deathworthy – a study of all capital cases decided by trial courts of Delhi, Madhya Pradesh and Maharashtra between 2000 and 2015, revealed that 44 per cent of the cases had sentencing done on the same day as a conviction. This is particularly serious in the state of Madhya Pradesh, where same-day sentencing was observed in 76.9 per cent of the cases. This is a serious issue as sentencing is done on the same day as conviction, providing no time between guilt pronouncement and sentencing hearing. This is antithetical to the Bachan Singh framework.
Manoj unequivocally places the responsibility on the State to collect and produce sentencing-related material. The judgment also reiterates the importance of reformation as a penological goal, and orients the information to be made available at the stage of sentencing towards proving the probability of reform.
This ultimately leaves the defence with no time to collect information and as a result, no information about the accused is presented before the courts. Even where mitigation information is presented, the lawyers have often relied on a checklist approach where they provide a list of mitigating factors without adequately contextualising it to the accused’s life. This lack of quality information about the accused makes it impossible for a judge to determine the sentence as per fair trial norms. That is why the article clearly points to this issue, which is ultimately one of the causes of unfairness in the sentencing process.
Q: How does the recent judgment of the Supreme Court in Manoj address this above issue?
A: In Manoj, Justice Ravindra Bhat prescribed certain procedural guidelines to ensure that lower courts collect and consider mitigating circumstances at the sentencing stage. Broadly, the State must collect three categories of material so that courts can conduct a meaningful analysis of whether the accused can reform and be rehabilitated.
First, a psychological evaluation of the accused is close to the commission of the offence. This serves as a baseline that will help appellate courts to evaluate the convict’s progress towards reformation during the period of his incarceration.
Second, additional information about the accused, including his socio-economic background, criminal antecedents, education, and information about his family. The defence also has a right to produce evidence towards establishing all mitigating circumstances in his favour.
Third, the reports of the probation officer to assess the convict’s jail conduct and a fresh psychological evaluation, in case there is a large gap between the appellate stages of the matter. These reports and assessments will help the court decide whether there is a probability that the convict can be reformed, rehabilitated, and reintegrated into society.
The specific guidelines issued in Manoj directly address mistakes made by lower courts during sentencing. The judgment unequivocally places the responsibility on the State to collect and produce sentencing-related material. The judgment also reiterates the importance of reformation as a penological goal, and orients the information to be made available at the stage of sentencing towards proving the probability of reform.
Manoj reiterates that courts cannot ignore the circumstances of the criminal during sentencing. As the Supreme Court has now issued guidelines on the material that must be collected and explained how this material will be relevant for sentencing, it is possible that lower courts adopt these guidelines and improve the quality of their sentencing analysis.
Q: Your extensive investigation of the background of the accused, where he was awarded the death penalty for the brutal gang rape of a minor, was taken into consideration by the Supreme Court in Irfan @ Bhayu Mevati as a mitigating circumstance. Can you tell us how you conducted the investigation?
A: The collection of mitigation information about the accused is a very broad-based and longitudinal exercise. Mitigation is an exercise of collection, documentation and analysis of a wide range of information like historical, cultural, social, familial and individual factors, and any other relevant factors that influence an individual’s perception, response and understanding of the world and the people around them. The purpose of the exercise is not to provide an excuse or justification for the offence. Its purpose is to better appreciate the social and individual context and circumstances of the accused while determining the extent of their culpability and blameworthiness in relation to the death penalty.
Once such information is collected, it is analysed within the appropriate framework and backed by research. Mitigation Investigators have the necessary training to understand the ways in which different life and social events, and relationships have influenced the life of the accused. Mitigation investigators are able to effectively present this information in useful formats such as family genograms, life history, presence of risk and protective factors in the accused person’s life, and social inquiry reports.
Q: Lastly, what are the present challenges in awarding the death penalty? Does it beg the question – Is awarding the death penalty constitutionally sound?
A: Persisting challenges with the death penalty inter alia include arbitrariness, vague and nebulous sentencing standards, and the inhuman and degrading experience of being on death row for prolonged periods of time due to judicial and executive delays.
While Manoj may help reorient death penalty jurisprudence, problems of arbitrariness will persist until its guidelines are implemented by lower courts across India. Implementing these guidelines goes beyond merely collecting evidence – lower courts need to be equipped with the tools necessary to understand this information and analyse it meaningfully. Doctrinal uncertainty in Bachan Singh and the lack of consistent first principles make this exercise particularly challenging.
Mitigation is an exercise of collection, documentation and analysis of a wide range of information like historical, cultural, social, familial and individual factors, and any other relevant factors that influence an individual’s perception, response and understanding of the world and the people around them. Its purpose is to better appreciate the social and individual context and circumstances of the accused while determining the extent of their culpability and blameworthiness in relation to the death penalty.
An overarching concern is the nature of the exercise itself: how is a judicially trained mind supposed to decide whether an individual may reform and be rehabilitated? It can credibly be argued that any decision on the probability of reformation will always be speculative and inconclusive. As such, it is possible that the sentencing process is inherently subjective and flawed, contingent on the personal predilections of the judge.
Quite apart from the procedure of sentencing, a major challenge in awarding the death penalty is delay and the death row phenomenon. Convicts suffer the experience of being on death row for years on end, often for decades. Domestic and international courts alike have observed that the death row experience is inhuman and degrading, and it has negative consequences for the mental, emotional and physical health of the individuals on death row.
That said, the Supreme Court has upheld the constitutionality of the death penalty on multiple occasions. The landmark decision on this point was pronounced by a constitutional bench of five judges in Bachan Singh, and it will take a larger bench to revisit this holding. While there may be numerous grounds to challenge the constitutionality of the death penalty, it is unlikely that a challenge will be sustained without major political and judicial upheaval.