The criminal justice system that periodically, fails the accused by keeping them in custody for decades, eventually acquitting them after years, often on death row, in such a system is it really possible to prevent unlawful death sentences?
Question of the death penalty often arises in front of the Supreme Court. The court tackles this with a 42-year-old decision that took place in Bachan Singh Vs State of Punjab(1980) where the court held that the death sentence did not violate the Constitution and proposed a system to promote impartiality in sentencing.
Court has finally faced the truth that death sentence sentencing has been anything and everything but fair, on the 19th of September, 2022 the top court referred its concerns about the death penalty to a Constitution bench, which will now deliberate the statute that determines whether a convict receives a death sentence or life.
Bachan Singh and Mitigating factors in capital punishment
While pronouncing the death penalty constitutional in Bachan Singh, the Supreme Court was fully conscious of the need to prevent the implementation of death sentences from devolving into an arbitrary and subjective exercise. It was crucial that the judges sentencing the death penalty made their decisions in accordance with the law and not on their own whims, in order to decide which persons the law might fairly sentence to death and whom to give life. But, later developments in death penalty sentencing clearly showed fault lines on various issues, including when the death sentence should be administered. Who should be subjected to it? How should it be implemented?
To satisfy this the court came up with a set of procedures for the judges to use before imposing capital punishment, known as ‘rarest of rare.’ Judges are required to consider aggravating and mitigating circumstances before deciding whether the possibility of life imprisonment was indisputably excluded from the books. It is firmly established that the accused facing a death sentence should be granted a “meaningful,” “fair,” and “effective” hearing on the punishment issue. The Court’s goal in this reference is to outline the substance of these words. It will necessitate the establishment of a mechanism capable of ensuring a fair hearing – a process that meets the constitutional standards of “due process” in both its substantive and procedural components.
The accused’s task at a sentencing hearing is to offer evidence arguing why they should not be condemned to death. Age, socioeconomic variables, family dependence, trauma, and a history of violence and neglect are all mitigating factors. These aid judges in comprehending the accused’s perspective, obstacles, and how they handled their life. These topics address critical parts of the central question of death penalty sentencing: Is a person sufficiently culpable to receive the death penalty?
However, these mitigating factors are frequently overlooked in trial courts. The disadvantaged and marginalized, who predominate among death row inmates, frequently lack access to efficient legal representation. When mitigation information is given, it is frequently simply enumerated, with each item placed separately and assessed separately. The exercise in the conceptual framework is missing. The accused are given very little time to provide such evidence. According to the legislation, an accused might be put to death on the same day they are found guilty. The system has legitimized methods that prevent real mitigation from being presented. Even while information such as trauma, abuse, or neglect are now regarded relevant, in the lack of enough time, this information will seldom, if ever, be provided effectively. Mitigation necessitates an awareness of the interaction of social, environmental, and psychological influences on an individual.
Is the process of sentencing fair and can the current justice system handle it?
It is clear that trial courts are not following the Bachan Singh ruling. However, blaming trial courts without first investigating the legislation would be incorrect. Is the law clear and comprehensive? Or does it permit judges to circumvent its requirements? What are the options for offenders if courts sentence them to death without respecting the law?
With this paradigm of capital punishment, a number of issues have arisen throughout time. The courts have taken different approaches in determining which factors are relevant to sentencing, how to best incorporate factors relevant to punishment, the ability of poor defendants to incorporate such information, the weightage sentencing factors must receive, and the contentious role of public opinion. The need for uniformity in the standards of a fair, meaningful, and effective sentencing hearing is the problem that the Supreme Court’s referral to a Constitution Bench tries to address.
In the past, too, the Supreme Court has noted that something is wrong with the Bachan Singh framework. Justice S B Sinha voiced worry about the lack of regularity in death sentence sentencing in Santosh Kumar Bariyar v State of Maharashtra in 2009. Because of the arbitrariness that had come in, Justice Kurian Joseph asked for a relook at the constitutional potential of the death sentence in his minority decision in Channu Lal Verma v State of Chhattisgarh in 2018. In a string of recent decisions over the last year, two Supreme Court benches have consistently observed that lower courts have sentenced accused people to death without adequate evidence. This is due to structural and systemic factors.
The fact is that in death sentence cases, the accused are frequently destitute, unable to afford effective legal representation, and without the resources to provide relevant mitigating material to the Court. In addition to a shortage of time, the accused suffer an additional disadvantage in that they are simply unable to establish appropriate mitigating elements. Bachan Singh’s hope sounds hollow in this context.
To achieve justice in sentencing, the accused must be allowed time and resources to acquire and submit such facts in every case and at every court level. Concerns about a lack of resources and capacity must not take precedence in a procedure that aims to end life through the law. It also necessitates protecting against the profound mistrust and unconscious bias that accused individuals frequently experience when requesting the chance to tell their testimony. Any method aiming for fairness must overcome this intangible but all-too-real disadvantage.
However, a system that lacks the capacity to achieve fair decisions in each case can never inflict death equitably. Ensuring that the death sentence is applied fairly is a step that follows incidents of injustice perpetrated on the guilty. The question of fairness is not one of the sentences in a system where resolutions are voted against defending an accused, where torture is prevalent, and where there are severe issues about the quality of legal counsel.
The Supreme Court’s Constitution bench is tasked with yet another effort to infuse the execution process with the principles of justice and non-arbitrariness and with a question of that is it actually feasible to change the law so that no one is ever wrongfully sentenced to capital punishment.
Kumar Kartikeya is a student of law and legal researcher.
