SC: Reformation & rehabilitation to be considered while imposing death penalty

Today, i.e. on 28th November, 2018, a 3-judge bench comprising of Hon’ble Justice Kurian Joseph, Hon’ble Justice Deepak Gupta and Hon’ble Justice Hemant Gupta of the Hon’ble Supreme Court, in the matter of Chhanulal Verma v. State of Chattisgarh enunciated that while awarding death penalty, the process must adhere to the strictest and highest constitutional standards and a person’s capability of reformation and rehabilitation should also be considered while imposing death penalty.

The Hon’ble Apex Court, among other things, observed that:

Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty. (Para 13)

A convict is sent to jail with the hope and expectation that he would make amends and get reformed. That there is such a positive change on a death row convict, in our view, should also weigh with the Court while taking a decision as to whether the alternative option is unquestionably foreclosed. (Para 15)

Without the assistance of a psychological/psychiatric assessment and evaluation it would not be proper to hold that there is no possibility or probability of reform. The State has to bear in mind this important aspect while proving by evidence that the convict cannot be reformed or rehabilitated. (Para 16)

A bifurcated hearing for conviction and sentencing is a necessary condition. (Para 17)

Since Bachan Singh (supra) is a Constitution Bench decision of this Court, the Courts are bound to follow the principles laid down in the said judgment until it is duly revisited. (Para 19)

The Court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the Court when it deals with the collective conscience of the people or public opinion. After all, the society’s perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper. (Para 24)

It has almost become a trend for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal. This undoubtedly puts mounting pressure on the courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice. (Para 24)

Till the time death penalty exists in the statute books, the burden to be satisfied by the Judge in awarding this punishment must be high. The irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered. Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that. (Para 25)

The Hon’ble Supreme Court referred to the tests given in its judgements in:

Bachan Singh v. State of Punjab [(1980) 2 SCC 684]

While upholding the constitutional validity of death penalty in India, it was held that under Section 354(3) of the CrPC, imprisonment for life is the rule and death sentence is the exception. The Court emphasized the need for principled sentencing without completely trammelling the discretionary powers of the judges. It also held that the “special reasons” that are required to be recorded while awarding death sentence means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.

Some of the aggravating and mitigating circumstances indicated in Bachan Singh v. State of Punjab are:

Aggravating circumstances

A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

Mitigating circumstances

In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The Court also clarified in Para 201 of the judgement that while determining the punishment, due regard must be given to the crime as well as the criminal. The aggravating and mitigating circumstances would have to be viewed from the perspective of both the crime and the criminal.

However, the Court has emphasised that the list of aggravating and mitigating circumstances provided above are not exhaustive and the scope of mitigating factors in death penalty must receive a liberal and expansive construction by the courts.

Machhi Singh v. State of Punjab [(1983) 3 SCC 470]

The Hon’ble Supreme Court summarised the findings in Bachan Singh v. State of Punjab and held that the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546]

This Court looked at the manner in which the aggravating and mitigating circumstances are to be weighed and how the rarest of rare test is to be applied while awarding death sentence and held that the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society- centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.

Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [(2009) 6 SCC 498]

The Court held that under Sections 235(2) and 354(3) of the Code of Criminal Procedure, 1973 there is a mandate for a full-fledged and bifurcated hearing and recording of “special reasons” if the court is inclined to award death sentence.

Copy of judgement: Judgement 28-Nov-2018

-Tushar Kaushik

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