Explained | What is the Supreme Court initiative on capital punishment? 

Why has the issue been referred to a five-member Constitution Bench? How will comprehensive guidelines help the sentencing process? What would be the right stage at which mitigating circumstances may be brought to the trial court’s notice?

The story so far: A three-judge Bench of the Supreme Court has referred to a five-member Constitution Bench the issue of giving meaningful opportunity to those found guilty of a capital offence to present mitigating factors and circumstances so that they can better plead for a life term instead of a death sentence. The reference was made to resolve differences between judgments, mainly on whether it is necessary to hold the hearing on sentencing on a subsequent day and not on the day of the conviction. It is believed that an authoritative verdict on the question may lead to the judicial system making death sentences even rarer than it is now.

The issue arises from the legal requirement that whenever a court records a conviction, it has to hold a separate hearing on the quantum of sentence. Section 235 of the Code of Criminal Procedure (CrPC) says that after hearing arguments, the judge shall give a judgment; and, “if the accused is convicted, the judge shall hear the accused on the question of sentence and then pass sentence”. This process gains significance if the conviction is for an offence that entails either death or life imprisonment. Section 354(3) says that when an offence is punishable with death or imprisonment for life, the judgment shall state the reasons for the sentence awarded, and if the sentence is death, “special reasons” for the sentence.

Editorial | Knowing the killer: On Supreme Court referring death penalty issues to Constitution Bench

Taken together, these provisions would mean that the sentencing hearing following the conviction of a person for a capital offence is a matter of great importance, as it would decide if the death penalty should be imposed or a life term will be sufficient. This would necessarily entail an inquiry into the nature and gravity of the offence and the circumstances in which it took place. Ever since the Supreme Court, in Bachan Singh vs State of Punjab (1980) laid down that the death penalty can be awarded only in the ‘rarest of rare cases’, the nature of the sentencing hearing has undergone a transformation. Besides the gravity of the crime, the circumstances of the accused also came to be examined to determine the suitability of the death penalty in a given case. Trial courts were required to balance ‘aggravating circumstances’ and ‘mitigating circumstances’ to decide the sentence.

The Supreme Court noted in Bachan Singh that Section 235 is based on a recommendation in the 48th Report of the Law Commission, which had said that one of the deficiencies in sentencing policy was the lack of comprehensive information about the characteristics and background of the offender.

The Commission had also suggested that gathering evidence related to the circumstances relevant to sentencing should be encouraged. Given this background, the Supreme Court said the trial court, while deciding the sentence, “should not confine its consideration ‘principally’ or merely to the circumstances connected with [a] particular crime, but also give due consideration to the circumstances of the criminal.” In a series of judgments, the Supreme Court has advocated that the sentencing hearing be done separately, that is, at a future date after conviction. “We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it,” it said in a 1989 judgment.

Opinions on this issue have emphasised the need for a separate hearing for sentencing, as well as the need for an effective opportunity to the accused to place mitigating factors before the court. However, in a contradiction of sorts, several judgments have upheld the practice of ‘same-day’ sentencing. Such a practice does not vitiate the sentence, the courts have ruled.