Recently, a Bench of the Supreme Court of India, decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.
What has caused the SC to examine practices in death penalty sentencing?
The court is undertaking an exercise to reform the procedures by which information necessary in a death penalty case is brought before courts.
In so doing, the Supreme Court is acknowledging concerns with the manner in which death penalty sentencing is being carried out.
While the death penalty has been held to be constitutional, the manner in which it has been administered has triggered accusations of unfairness and arbitrariness.
How are judges supposed to choose between life and death sentences?
In May 1980, when the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case, a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty.
At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.
Through the 1980 framework, popularly but inaccurately known as the “rarest of rare” framework.
The Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
The judgment also made it clear that life imprisonment as a sentence would have to be “unquestionably foreclosed” before judges imposed the death sentence.
There was an indicative list of factors that the judgment identified as being relevant, but it was clear that it was not meant to be an exhaustive list.
What is mitigation, and what are mitigating factors?
A criminal trial has two stages — the guilt stage and the sentencing stage.
Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined. Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.
It is a fundamental tenet of criminal law that sentencing must be individualised, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused.
It speaks to a very intuitive sense of justice that all our decisions and actions result from a complex interplay of various factors concerning our lives, and the emphasis is that such interplay is different for each individual.
The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.
o Justice would be an incomplete idea if criminal law was incapable of considering an individual in all their complexity and the various factors that contributed to a set of decisions and actions in their lives.