By Merrin Muhammed Ashraf
Capital sentencing practice in India is in a broken state and in the words of the Law Commission, death penalty is being imposed ‘arbitrarily and freakishly’ by the courts. Since our penal laws do not provide for mandatory death penalty for any offence, the sentencing court has the onerous task of deciding between death penalty and life imprisonment. The Code of Criminal Procedure (CrPC) does not provide any guidance on how this discretion is to be exercised other than requiring the court to record “special reasons” for imposing death sentence. 40 years ago, the Supreme Court in Bachan Singh v. State of Punjabclarified that while determining the appropriate punishment, due regard must be given not only to the crime but also to the criminal. Appreciating the circumstances relating to the criminal is very important given the irrevocable nature of the death penalty that forecloses all chances of reformation. However, death sentencing pattern in India, especially at the trial court level, shows that the circumstances relating to the criminal are neither appreciated in their proper context by the sentencing courts nor are they adequately put forward before the courts.
Individualized sentencing and consideration of the probability of reformation
In Bachan Singh, the Constitution bench of the Supreme Court emphasized on the need for individualized sentencing and required the courts to weigh the aggravating and mitigating circumstances pertaining to both the crime and the criminal. While doing so, the mitigating circumstances are to be given liberal and expansive construction. The court gave an indicative list of mitigating factors which include the young age/old age of the accused, existence of extreme mental disturbance, probability of reformation etc. The court then held that death sentence ought to be imposed only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”.
Later, in SanthoshKumarSatishbhushanBariyarv. State of Maharshtra, the court reiterated the Bachan Singh framework and added that the option of life imprisonment will be unquestionably foreclosed only when the sentencing aim of “reformation can be said to be unachievable”.Therefore, before imposing death penalty, the court has to give clear reasons why the convict is not fit for any reformatory or rehabilitation scheme.This calls for a rigorous sentencing exercise by calling for evidence relating to sentencing factors. While circumstances pertaining to the crime, like the nature of crime, manner of commission, motive, culpability of accused etc. are already brought to the knowledge of the court during the trial stage, what is lacking before the court is the circumstances of the criminal. Therefore, the Supreme Court in SanthoshkumarBariyar considered it imperative that the evidence relating to the characteristics of the criminal and his socio-economic background be specifically adduced during the sentencing hearing. Recently, in ChhannulalVermav. State of Chattisgarh, the Supreme Court refused to hold that that the convict was beyond reformation in the absence of a psychological/psychiatric assessment and evaluation. Despite these guidelines from the apex court, sentencing hearings in death penalty cases do not happen with as much rigor as is expected.
A study of the death sentencing patterns in trial courts reveals the over-reliance on aggravating circumstances of the crime and insufficient engagement with the circumstances relating to the criminal while imposing death penalty. This could be attributed to the perfunctory manner in which the courts and the lawyers approach sentencing hearings. Despite CrPC requiring a bifurcated sentencing hearing, same day sentencing hearings are common, leaving little time for the lawyers to prepare their arguments. The study also shows the general apathy among lawyers to bring forth the mitigating circumstances unique to the individual offender. Even when certain mitigating circumstances are pleaded, it is done without sufficient contextualization that is necessary to understand how those circumstances affected the convict as an individual and made him the man who committed the crime. In the absence of such contextualization, the court’s appreciation of the mitigating circumstances will be limited. This explains why trial courts tend to summarily reject mitigating factors and decide the probability of reformation of the accused solely based on the ‘brutality’ or ‘heinous nature of crime’ or by blindly relying on precedents without regard to the individual circumstances of the case.
All this indicates the importance of collecting and properly presenting the mitigating factors before the sentencing court through a process called mitigation investigation. Such an exercise would enable the court to see the criminal beyond the crime that he committed and to mete out individualized sentencing, by giving adequate consideration for his probability of reformation.
What is mitigation investigation and why is it important in death sentencing?
The term ‘mitigation investigation’ is not so common in the death penalty discourse in India. It is a comprehensive process that seeks to uncover information about the accused like his socio-economic background, psychological, and biological conditions, the neglect and abuse that he faced growing up, history of illness etc. so as to gain a holistic picture of his life. Further, it is not only his life leading up to the crime that is relevant but also circumstances post crime like his good conduct in jail, conduct outside jail when on bail, medical opinion about his mental make-up, contact with family members etc. It is important to understand here that mitigation investigation is conducted not to justify the crime; rather it recognizes the ‘diverse frailties of humankind’ and seeks to evoke the compassion and empathy of the court for the vulnerabilities of the criminal. The penological rationale behind the consideration of mitigating circumstances, as explained in EdigaAnamma v. State of Andhra Pradesh, is to ensure personalized sentencing for the accused by keeping the option for reformation open, wherever possible.
In United States, one of the retentionist countries, the Supreme Court has been very vocal about the importance of mitigation investigation. The American Bar Association Guidelines require the capital defence team to engage mitigation specialists. The work of these specialists consists of conducting extensive interviews with the accused, his family members, neighbours, friends, teachers, employers etc. and even involves psychiatric evaluation of the accused in many cases. The mitigation team then constructs a psycho-social life history of the accused by analyzing how the gathered facts and information shaped his personality and behavior. This mitigation evidence will be integrated with the defense team’s overall preparation for the trial, and will be very crucial at the stage of sentencing in order to persuade the court why a punishment less than death is appropriate. In Williams v. Taylor, the US Supreme court held that failure of the defence counsel to conduct a thorough mitigation investigation would constitute ineffective legal assistance to the accused and would be violative of the 6th Amendment to the US Constitution.
In India, even though Bachan Singh required consideration of mitigating circumstances, it did not provide any guidance as to how they are to be collected and presented before the court. As a result, mitigation investigation remains undeveloped and unutilized in India. A positive step in this regard was taken by the Delhi High court in Bharat Singh v. State of NCT of Delhi when it ordered the probation officer to submit a social investigation report about the probability of reformation of the convict. This report was prepared after conducting detailed interviews with the accused, his family members and neighbors and by incorporating reports from the local panchayat, police station as well as opinion of clinical psychologist and psychiatric social workers. This report recommended that the convict could be reformed through the intervention of socio-correctional measures and therefore his death sentence was commuted to life imprisonment. This case demonstrates the difference that a proper mitigation investigation can bring to the sentencing outcome in a death penalty case.
More recently, in Mukesh Singh and Anr v. State of NCT of Delhi (Nirbhaya case), recognizing the failure of the trial court and High Court to consider mitigating circumstances, the Supreme Court took it upon itself to appreciate the sentencing evidence. It directed the defence counsels to file affidavits detailing the mitigating circumstances of the accused persons. Further, in order to facilitate the mitigation process, the court allowed the counsel to meet the accused persons in prison for two hours daily for a fortnight, in a separate room. These are progressive directions indicating the court’s acknowledgement of the importance of mitigation exercise. However, the quality of mitigation investigation conducted in this case and the court’s engagement with the mitigating factors have been criticized as inadequate and lacking in depth.
Despite some progress in judicial attitude, mitigation investigation and contextualized consideration of mitigating factors continue to be awfully lacking in the death sentencing practice in India.
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Challenges to the conduct of mitigation investigation
Mitigation investigations are complex exercises requiring specialized skills, resources and investment of a lot of time. It involves several meetings with the accused and other useful informants, collection of documentary evidence regarding the circumstances of the accused and engagement with experts to analyse the information so gathered. Since the lawyers will be already burdened with the preparation of arguments for trial, it is neither practical to expect them to undertake comprehensive mitigation investigation nor they may have the required skills to do so. Therefore, it is necessary that they be assisted by professionals who have the necessary skill set to unearth sensitive and personal information about the accused. In US, the mitigation specialists are usually people from diverse professional backgrounds like psychologists, probation officers, journalists, social workers, anthropologists etc.
Conduct of mitigation investigation in India is fraught with many challenges like the lack of access to accused in prison for conducting interviews, lack of records about his mental health in prison, difficulty to obtain documentary evidence about his socio-economic circumstances and most importantly, the resources and cost involved in the process. Moreover, the extremely sensitive and invasive nature of the mitigation investigation creates many ethical dilemmas for the investigators as they run the risk of re-traumatizing the family members when eliciting information from them.
Many of these challenges can be effectively addressed only when mitigation investigation becomes accepted by the courts, lawyers, prison authorities and everyone involved as an integral part of death sentencing procedure. Securing access to accused persons in prison would require change in prison manuals and rules to allow contact with mitigation investigators in privacy. It is also necessary that regular mental health evaluation of death-row prisoners be conducted and their mental health records maintained. Most worrying of all the challenges enumerated above is the resources involved in a mitigation investigation. This can act as a crippling factor for the poor and indigent accused persons who already bear the brunt of the skewed criminal justice system. As the US experience shows, though mitigation investigation helps to infuse fairness in the sentencing procedure, the same can bring in arbitrariness when the access to mitigation specialists becomes unequal and disparate. Therefore, it is necessary that the State bear the expenses of mitigation exercise when the prisoner is unable to afford the same.
Conclusion
It is time that mitigation investigations become the heart of sentencing procedure in death penalty cases in India. At the core of mitigation investigation is the understanding that a criminal is not just the crime that he committed; he is an individual shaped by his own unique historical, biological, psychological and social context and tales of abuses and trauma. Therefore, when the instrumentality of law is used to take away his life, it should happen only after a rigorous sentencing procedure that takes into account these individual circumstances of the criminal and only when the alternative option is unquestionably foreclosed. A proper mitigation exercise will enable the sentencing court to decide the probability of reformation of the accused in a more holistic manner by giving due consideration to his life history and the future value of his life, instead of basing its logic solely on the brutality of the crime. Thus, mitigation investigation is very crucial to carry out individualized sentencing and to reduce the arbitrariness involved in the death sentencing practice in India.
[The author is a Final year BA LLB(Hons.) student of The National University of Advanced Legal Studies, Kochi.]
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