The death penalty and humanising criminal justice

CategorySocial

Last Updated30/10/2022

The SC is ordinarily expected to tread the path laid out by the written text of law and the binding precedents.
But there are some exceptional moments when agencies feel free to break the shackles that force it to the conservative frame.

The CJI has taken several bold initiatives to correct certain grave anomalies that have persisted in operation of the death penalty law.
Displayed unique sensitivity to the plight of the condemned ‘death-row prisoners’ in Anokhilal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022).
Impart corrections in the form of creative directions.
Such a corrective line of judicial decisions continued in the Prakash Vishwanath and review petition order in the Mohd. Firoz cases.
Research findings in the Death Penalty India Report (2016) and the ‘Deathworthy’ report buttress the exceptional sensitivities of CJI.

The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’.
Stands out because of the thrust on the trial court’s death sentencing policies and directions to ensure uniformity.
Reference to a larger Bench would constitute another step for death penalty sentencing justice reform such as:
legislative limitation flowing from Section 354(3) in the CrPC
judicial limitation flowing from the ‘rarest of rare’ case
‘oral hearing’ after the remedies to the condemned are exhausted
The Court's decision has summed up the core issue that displays a special concern for the legislative mandate under Section 235(2).
Confers a right to pre-sentence hearing after conviction and its endorsement by the full Bench ruling in Bachan Singh
Required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors.

All cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record.
Would be part of [the] prosecutor’s evidence, leading to conviction.
Accused can be expected to place mitigating circumstances on the record.
Places the convict at a hopeless disadvantage.
Necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity.

The sentencing lacunae have received a positive response from academics and the media.
New guidelines can be brought under which trial courts can hold an investigation into factors like upbringing, education and socio-economic conditions of the offender.
Must take into account the relevant factors at the time of considering whether the death penalty ought to be imposed:
Educational levels
Whether the accused had faced trauma earlier in life
Family circumstances
Psychological evaluation of a convict
Post-conviction conduct

The future shape of the mission to humanise criminal justice will ultimately depend upon two things
Composition of the larger Bench and the inclination of the judiciary to continue in its onward creative path.
Extent to which society is prepared to broaden the horizons of meaningful hearing.
Consideration of these two components in isolation leads to a disconnect between the wrongdoer and his punishment or sentence.

Perhaps, there will be some answers from leads given by western critical criminal law scholars who have already begun making a distinction between ‘early guilt’ that is regressive, prosecutory and punitive, and ‘mature guilt’ that is developmental and progressive.