EXPLAINED: Why Supreme Court Is Reviewing Death Penalty Process

The Supreme Court has taken a suo moto cognizance to consider examining the procedure in which death penalty is awarded.

New Delhi: The Supreme Court has taken a suo moto cognizance to consider laying down guidelines for assessment of mitigating circumstances in death penalty cases. The decision comes even as Supreme Court had expressed concerns in the manner in which death penalty was awarded by trial and High Courts.

Recently, a Bench headed by Justice U U Lalit has decided to set the guidelines to examine the procedure of death penalty and issued notice to the Attorney General for India and Member Secretary, National Legal Services Authority (NALSA). The Supreme Court had decided to extensively examine the circumstances where a judge had to choose between life imprisonment and death penalty. Earlier, the Supreme Court had raised concerns in the process of assessments of mitigating information in death penalty cases.

Understanding death penalty

Under the provisions of criminal procedure, death penalty must be awarded as an alternative punishment to life imprisonment which the offenders may be sentenced in “rarest of rare cases”. “We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed,” the authors of the code had stated. Death penalty can be awarded in case of the following seven offences –

1. Waging was against the Government of India (Section 121)
2. Abetting mutiny actually committed (Section 132)
3.  Giving or fabricating false evidence upon which an innocent person suffers death (Section 194)
4. Murder which may be punished with death or life imprisonment (Section 302)
5. Abetment of suicide of a minor on insane, or intoxicated person. (Section 305) (6)
6. Dacoity accompanied with murder. (Section 396)
7. Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (Section 307)
8. Choosing between death penalty and life imprisonment

Choosing between death penalty and life imprisonment

The procedure in which death penalty was being awarded still remains a cause of concern. A framework was developed by the Supreme Court, after it upheld the constitutional validity of the death penalty in Bachan Singh’s case in May, 1980, to decide on factors while choosing between life imprisonment and death sentence. The framework states that legislature in the Criminal Procedure Code (CPC) would consider life imprisonment as the default punishment. According to the 1973 amendments, Section 354 (3) had made the life imprisonment as the death penalty. Death penalty became the exception in “special reasons” cases. This means death penalty can be awarded in “rarest of rare cases”. This framework also stated that the judges must consider both the factors – mitigating and aggravating – concerning crime and the accused while announcing death penalty.

It means death sentence can be applied in “rarest of rare” cases where the option of life imprisonment is “unquestionable foreclosed”. Reformation was considered as one of the mitigating factors and the onus was put on the prosecution to show that the individual could not be reformed. However, though the framework mandated that both the crime and the accused must be considered while announcing death penalty but this has not been the case over the past years.

Over the past years, concerns have been raised that the death penalty has been awarded mainly considering only the crime factor while overlooking the accused. This means only the brutality factor of the crime was considered while awarding death sentence without sufficiently bringing in the circumstances of the accused. Many accused come from marginalised background and do not have competent legal representatives and so any factors of their life barely gets presented before the courts. The Supreme Court had raised this issue many times and have now looked into setting guidelines for reviewing the procedure of awarding death sentences.