New Delhi: On 19 September 2022, the Supreme Court referred concerns relating to the death penalty to a five-judge Constitution bench, which will now interpret and finalise the law that decides if a convict gets a death sentence or life imprisonment. 

Many crimes, such as murder, child rape and kidnapping for ransom, are punishable with the death penalty, but it is not automatically imposed once someone is held guilty. Every crime punishable with the death penalty also has life imprisonment as the alternate punishment. 

This is because the law is also interested in understanding the person who is being punished rather than responding with vengeance to the crime. This interest comes from the acknowledgement that individual decisions are also influenced by external factors, including society.  (here and here) 

Even otherwise, it is not difficult to see why something as serious as the choice between life and death, cannot be left completely to the subjective preference of individual judges.

While holding that the death penalty did not violate constitutional values, Bachan Singh vs State of Punjab (1980) first attempted to lay down the law to guide judges in making this decision. However, in the 42 since, a host of issues have emerged: 

– Does the death penalty law, both in theory and practice, allow the life of the offender to be meaningfully presentend and considered by judges at sentencing?

– Does the law ensure that all offenders have an equal chance of being considered for reform and a life sentence? 

– Is the law sound enough to ensure that individual preferences or biases of judges don’t influence their decision? 

The Constitution bench is looking to revisit these fundamental questions. 

This should be of interest especially to those who find comfort in retaining the death penalty because experienced judicial minds decide who should live or die.

Life Imprisonment Or Death: How Judges Must Choose

The law makes it easier for judges to choose a life sentence over the death penalty. 

If judges want to impose the death penalty, they have to give “special reasons” under section 354(3) of the Code of Criminal Procedure (CrPC), 1973. A life sentence can be imposed as the default punishment without such reasons.

However, section 354(3) does not not tell judges what can qualify as special reasons. For instance, is the nature of the crime reason enough to impose the death penalty? This was answered by the Supreme Court in the Bachan Singh judgement. 

The crime itself or the circumstances surrounding it, such as the manner of killing or the motive, cannot be used as special reasons to impose the death penalty, according to the Bachan Singh judgement. 

Beyond the crime itself, judges have to understand those they have to punish and assess if there is a chance they can be reformed. 

Death sentences cannot be imposed without considering the life history of the offender.  This reflects the advancement in criminal law over centuries to a position where the story and character of a person being punished is relevant to the punishment.

Judges Have Ignored Guidelines

While broadly suggesting a law based on the perspective of understanding offenders, their societies and the circumstances, Bachan Singh did not go any deeper to answer the fundamental questions raised in the introduction. 

As a result, in the last 42 years of its existence, many persons have been sentenced to death based on the circumstances of the crime, with judges having little or no information of their lives or their ability to reform. 

A 2020 study by Project 39A, a pro-bono litigation and research centre at the National Law University, Delhi, of all death sentences (322 in 215 cases) imposed by trial courts in Maharashtra, Madhya Pradesh (MP) and Delhi over a 16-year period, between 2000 to 2015 reveals these concerns. 

In nearly 48% of the cases, trial judges had sentenced the offender to death on the same day they were declared guilty of the crime, the study found. Why is this a problem?

As we said, Bachan Singh requires judges to not just consider the circumstances of the crime but also understand the offender when deciding between life and death. To allow judges to meaningfully do this, section 235(2) of CrPC divides a trial into two stages: guilt determination and punishment. 

The decision to choose between a life sentence and the death penalty only comes into play at the second stage, if a person is held guilty of a crime. Judges have no reason to engage with the life of the offender at the stage of guilt determination because this requires both time and resources. 

The Complex Process of Knowing A Convict

Section 235(2) recognises two stages of a trial to allow both the time and opportunity to the offenders and their defence teams to present  life histories to a judge. This is a complex process that goes well beyond the skills of a lawyer and requires professionals trained in social work and mental health. 

Presenting a comprehensive life history of the offender involves having many deeply personal and difficult conversations with both the offender and relevant persons in their lives, including family. 

To say that this can be done immediately after a person is held guilty or soon after makes the exercise meaningless and forces a decision about punishment based only on the crime.

The connection between not giving sufficient time to offenders to present their life stories and judges not considering these stories when deciding trial outcomes was obvious in Project 39A’s trial court study. 

In 59 of 111 trial-court judgments where persons had been sentenced to death on the same day as conviction, judges had not considered any aspect of the offender’s life. Indeed, judges did not even make a mention of these issues in more than half of the cases (51.6%) when sentencing them to death.

In 71.7% of the cases, judges did not discuss the probability of reformation and rehabilitation, defeating the logic of not having an automatic death sentence. 

While the law may be unclear on many aspects, it is quite clear that a life sentence is the normal punishment that, as far as is possible, must be chosen.

Yet Project 39A’s trial-court study revealed that in 73.4% of cases judges chose the death penalty without even discussing the option of life imprisonment.

The Gaps In The Law

It is fairly obvious that trial courts are far from implementing the Bachan Singh decision. But it would be inaccurate to entirely blame trial courts  without examining the law itself. 

Is the law clear and thorough? Or, does it allow judges to bypass its requirements? What recourse do offenders have if judges sentence them to death without following the law?

While judges have sufficient information about the crime, knowing the offender beyond the crime requires a fundamental shift from the guilt- determination phase and significant investment of time and resources from the defence team. 

It is apparent that the defence team must have sufficient opportunity and time to present the offender’s story. Equally important is the guarantee that this information is uniformly and meaningfully considered for all those sentenced to death. 

This is not as straightforward as it appears. 

The law is not clear on what is “sufficient time” for offenders and their defence team to present their life history. Neither Bachan Singh nor death- penalty judgments after it over the last 42 years have discussed this issue. 

No Time Given To Present Life Stories

Some death-penalty decisions  (here, here and here) have held that a sentencing hearing does not become invalid just because offenders were sentenced to death on the same day they were held guilty.

The logic of these decisions was that same-day sentencing did not mean the judge did not consider the offender's life history and probability of reform. But how can a judge possibly do so without providing the defence team time to present such information? 

There is no assurance that all offenders will have their stories presented meaningfully before a court: they need good defence teams, including social workers and mental health professionals. That means convicts must be able to afford a good legal team. 

It is not surprising that nearly 76% of India’s prisoners sentenced to death come from marginalised socio-economic backgrounds. Project 39A’s trial- court study found that defence lawyers never presented offenders’ life story and routinely only made a mention of their young age or lack of criminal history, where applicable. 

The law is unclear on how judges must consider the life stories of offenders and probability of reform in decision-making. This means that, to a great extent, such decisions are left entirely to judicial discretion, which was the fundamental problem that the law tries to address. 

What remedy is available to offenders if judges do not give them sufficient time and opportunity to present their stories? The law is unclear. 

While Bachan Singh did not deal with this issue, some death-penalty decisions after Bachan Singh (here and here) have held that the High Court or Supreme Court can address problems with trial-court sentencing. 

But this takes away from the rights of a convict to have life histories and probability of reform considered by courts at all three levels. It is unclear why this is not seen as a problem when the right to appeal across three levels of courts is considered a central component of a fair trial.

What Lies Ahead?

A Constitution bench born out of the Supreme Court’s acknowledgement after four decades that a fundamental reconsideration is required of death- penalty sentencing is an acceptance that the law that decides who will live and who will die is on shaky ground. 

This should deeply trouble even those who support the death penalty. The issues at play here  ​are not ​merely ​technical, ​of interest ​only ​to a legal or academic audience. They ​mean the difference between a life and death sentence. 

Unless the bench chooses to engage with all the questions we have discussed, the promise of a Constitution bench will remain undelivered. Is it really possible to reform the law such that no one is unlawfully sentenced to death? The Supreme Court will have to figure that out.

(Neetika Vishwanath is with Project 39A at National Law University, Delhi, where she heads the work on sentencing.)