On May 20, a three-judge bench of the Supreme Court, while commuting the death penalty for three convicts to a 25-year prison sentence, directed lower courts to collect information relating to the background of the convict and their mental and psychiatric health, amongst other things, while determining if they should be given capital punishment.

The court noted that laws and principles relating to death penalty were not being followed. This included the provision that life imprisonment must be the norm and death must be awarded only in exceptional circumstances, after considering the mitigating factors.

Lawyers say that this decision is significant as the court has categorically laid down a framework for collecting information in death penalty cases. Though, how this information will be treated by low courts and the extent to which they will comply with the Supreme Court’s guidelines is uncertain.

The Supreme Court has laid down practical guidelines on trial courts collecting mitigating cirumstances in death penalty cases.

What are the court’s guidelines?

The Supreme Court held that for offences carrying the death penalty, the trial courts must ask for information relating to mitigating circumstances – factors such as scope of rehabilitation, which would lead to a lenient punishment – from both the prosecution as well as the accused.

It said that the prosecution must produce a psychiatric and psychological evaluation of the accused, conducted soon after the commission of the offence, before the court.

Next, the prosecution must “in a time bound manner” collect some “additional information” relating to the accused. The court gave an illustrative list of the information to be collected: early and present family background, education, socio-economic background, history of mental or psychological ailments etc. This information must be produced at the sentencing stage and the accused has to be given an opportunity to rebut these sentences.

Further, it also held that an accused’s conduct in jail, activities they have undertaken there and similar details must be prepared in the form of a report by the relevant jail authorities. In case an appeal is heard by the High Court a long time after the trial court has given the sentence, the Supreme Court recommended that the jail authorities must have fresh reports of psychiatric and psychological evaluation and jail activities so that a “more exact and complete understanding of the contemporaneous progress made by the accused” is arrived at.

Apart from laying guidelines for evidence collection, the judgment also reiterated and clarified previous Supreme Court judgments on various aspects such as investigation and evidence collection, the role of the prosecution in trials and ensuring that the accused is given a fair trial. It also repeated that “public opinion” is not a relevant ground to award the death penalty.

Members of the South India Cell for Human Rights Education and Monitoring (SICHREM) hold placards and candles during a demonstration in Bangalore in 2005. Credit: Dibyangshu Sarkar/AFP

What was before the court?

The Supreme Court was deciding on an appeal by three individuals who were convicted of murdering a family of three and robbing their house. They were awarded the death sentence by the trial court, which was confirmed by the Madhya Pradesh High Court.

The court held them to be guilty of the crime. However, it looked at other factors such as age, conduct in prison as well as the chance of rehabilitation and commuted their death penalties to 25-year life imprisonment sentences.

It said that despite the crime being “heinous” and its execution being “vicious and cruel”, the three convicts had the “probability of reform” and did not deserve death.

The court noted: “The reports received from the Superintendent of Jail reflect that each of the three accused, have a record of overall good conduct in prison and display inclination to reform...they have already, while in prison, taken steps towards bettering their lives and of those around them, which coupled with their young age unequivocally demonstrates that there is in fact, a probability of reform. On consideration of all the circumstances overall, we find that the option of life imprisonment is certainly not foreclosed.”

While doing this, Supreme Court expressed shock that the trial court and the High Court did not “provide an effective sentencing hearing” to the accused. This went against Section 235(2) Code of Criminal Procedure, 1973, which mandates a separate hearing for sentencing. Further, as per Section 354(3), life imprisonment must be the norm and death penalty can only be awarded if there are “special reasons”.

The Supreme Court, in the case of Bachan Singh v. State of Punjab, has laid down a framework for sentencing that requires the courts to look at aggravating and mitigating circumstances of both the crime and the criminal and consider if life imprisonment would be a sufficient punishment instead of the death penalty.

This sentencing policy, the Supreme Court noted in the present judgment, was not being followed by the lower courts in a “majority of cases reaching the appellate court”. Thus, it framed practical guidelines on information that can be collected to consider circumstances of the crime and the accused, till the legislature and executive made a framework.

While the Supreme Court has held that death penalty is constitutional, it has tried to lay down guidelines that such sentences are passed in the “rarest of rare” circumstances after looking at various factors. Credit: Athit Perawongmetha/Reuters

Why is the judgment important?

The misuse of the death penalty in India has long been flagged as worrisome. While the Supreme Court has held that death penalty is constitutional, it has tried to lay down guidelines that such sentences are passed in the “rarest of rare” circumstances after looking at various factors and the chance of reformations. However, this often does not happen, especially in the lower courts.

Project 39-A, a research and advocacy centre at National Law University, Delhi, has done multiple studies which show the dilapidating state of affairs. A 2016 study by it found that between 2000 and 2015, less than five out of every 100 trial court death sentences were finally confirmed by the Supreme Court.

Further, another Project 39-A study found that out of a sample of 215 death sentences in three states, in about 50% of the cases, the courts did not look at mitigating factors and in 44% of cases, they gave the sentence on the same day as the conviction. This goes against the law.

Anup Surendranath, executive director at Project 39-A, which was also involved in the present case, said that the judgment has important observations about the collection of sentencing information. “A large part of the breakdown of the Supreme Court guidelines in Bachan Singh is that there has never been sufficient information about the accused being brought into court. As a result, the sentence focuses on the crime only and not the accused,” he said. “This judgment is resolving one step of the process, which is collection of information.”

“There have been passing references to collecting sentencing information earlier,” he added. “But these were very passing references with no real, deliberate focus on the collection of sentencing information.”

However, this judgment casts a specific duty on the trial court to ask for information. Senior advocate Nitya Ramakrishnan said, “The responsibility on the trial court, the state and appellate courts also to bring material on record has been said in clear terms.”

However, Surendranath cautioned, “How the courts will treat sentencing information is a separate issue, which is also a grave area of concern.”

Further, to what extent trial courts will follow the Supreme Court’s directions to collect information is also uncertain, he noted, given the poor compliance with existing Supreme Court guidelines.

Noting how the court discusses and clarifies previous judgments on death penalty, Ramakrishnan said, “There is an admirable summation of the development of the law [on the death penalty],”

She also believed it was important that the court restated that public opinion is not a relevant factor in awarding death penalty. “Not that this has never been said before,” she added, “but it is said in categorical terms here, which is significant. Many death penalties have been given by courts, even the Supreme Court, citing public outrage.”

The study by Project 39-A found that in about 50% of cases out of a sample of 215 cases, trial courts had invoked “collective conscience” and “satisfying the society’s cry for justice” as a relevant factor in awarding the death sentence.