Death penalty: Constitution Bench to frame rules on mitigating circumstances

Tribune News Service

New Delhi, September 19

Noting that there was a clear conflict of opinion by two sets of three-judge Bench decisions on mitigating circumstances to be considered while imposing death penalty, the Supreme Court on Monday referred the issue to a five-judge Constitution Bench.

‘Rarest of rare’ doctrine

• The SC earlier propounded the ‘rarest of rare’ doctrine for sending murder convicts to the gallows
• But there is no statutory definition of ‘rarest of rare’
• It depends upon facts and circumstances of a particular case

“This court is of the opinion that it is necessary to have clarity on the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict on the issue of sentence,” a three-judge Bench of Chief Justice of India UU Lalit, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia said. “Let this matter be placed before the Chief Justice of India for appropriate orders in this regard,” the Bench said. The top court had taken suo motu cognisance of the issue in April this year while hearing a petition filed by one Irfan, alias Bhayu Mevati, challenging the death penalty awarded to him by the trial court and confirmed by the Madhya Pradesh High Court.

Need for uniform approach

It is necessary to ensure… uniform approach on the question of granting real and meaningful opportunity… to the accused or convict on the issue of (capital) sentence. —SC Bench

Writing the judgment for the Bench, Justice Bhat said, “It is also a fact that in all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on record for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.”

Describing death sentence as “irreversible”, the Bench had on August 17 noted that every opportunity should be given to the accused for consideration of mitigating circumstances so that “the court concludes that capital punishment is not warranted”.

Earlier, a five-judge Constitution Bench had in Bachan Singh’s case (1980) upheld the constitutionality of death penalty and propounded the “rarest of rare” doctrine for sending murder convicts to the gallows. But there is no statutory definition of “rarest of rare” and it depends upon facts and circumstances of a particular case.

Generally, brutality of the crime, conduct of the offender, previous history of his involvement in crime, etc., are taken into account by courts while awarding death penalty.

In Malkiat Singh vs State of Punjab (1991), three judges said that a separate hearing on the question of sentence should be afforded to the accused after recording conviction. The court held that the hearing should be intended to afford an opportunity to place materials to show mitigating circumstances...,” it noted.

General practice

Brutality of the crime, offender’s conduct, crime history, chances of reforming are generally taken into account by courts while awarding death penalty

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