Sakshi Jain

Recently, in Criminal Appeal proceedings at the Supreme Court challenging a conviction and death sentence, an application was filed seeking access for a mitigation investigator to interview the accused so as to gather information relevant to sentencing. Vide order dated 29.03.2022, the Court allowed the application and stated that, while considering the sentence for a death-eligible offence, courts are obligated to go into any circumstance that could potentially mitigate the sentence and consider relevant inputs about the accused made in either a Probation Officer’s report or otherwise. After noting this position as a matter of law, the Court observed that a Probation Officer’s report may often be based on interviews undertaken during the last stages of a trial, and therefore fail to consider the accused’s profile comprehensively. Having noted this, the Court mooted the possibility of an alternative route: allowing a competent person from the defence team to conduct interviews with relevant persons from the beginning of a trial to project a comprehensive report to the court in the sentencing hearing. Clarifying these observations to be “tentative”, the Court converted the application into a suo moto writ with the view to facilitate further consideration. This writ dubbed as In Re framing guidelines regarding potential mitigating circumstances to be considered while imposing death sentences (‘suo moto writ’) is presently pending before the Court.

In this article, we seek to explain what mitigation is, and the inadequacies in the present capital sentencing framework that the Supreme Court has set out to address in the suo moto writ.

Mitigation in Indian capital sentencing framework

Capital sentencing in India for the last four decades has been shaped by the sentencing framework devised by the Court in Bachan Singh, which required a sentencing court to weigh the aggravating and mitigating circumstances of both the offence and the offender. It further held that the death sentence may only be imposed in the rarest of rare cases where the lesser alternative of life imprisonment is unquestionably foreclosed.

Despite the mandate in Bachan Singh, mitigating circumstances are routinely neglected by trial courts. Project 39A’s report on Death Penalty Sentencing in Trial Courts studied 215 judgments from 2000 to 2015 across three states (43 from Delhi, 90 from Maharashtra and 82 from Madhya Pradesh) where death penalty was imposed. No mitigating circumstances were mentioned in 42% of the cases in Delhi, 62% in Madhya Pradesh and 47% in Maharashtra. The report also observed, that even in cases where mitigating factors were mentioned there wasn’t any meaningful consideration of the same.

More often than not, mitigating factors are merely listed against aggravating factors (based, usually, on the nature and gravity of the crime). These are then compared disjointedly without a sense of how the mitigating circumstances interact with the accused’s culpability for the crime and its gravity. This approach to mitigation is partly attributable to the gaps in Bachan Singh itself, especially in its failure to provide normative clarity on the relevance and purpose of mitigation and the manner in which it is to be considered against aggravating factors. The Court’s decision in Machhi Singh muddied the waters further by requiring courts to mechanically compare mitigating and aggravating circumstances in a ‘balance sheet’, in the garb of interpreting and clarifying Bachan Singh.

However, the neglect of mitigating circumstances by trial courts is not solely attributable to Bachan Singh’s failure to provide a strong normative foundation for the framework it formulated. It is, at least in a significant part, also attributable to Bachan Singh’s failure to lay down clear procedures for the collection and presentation of information about mitigation for sentencing. This gap had been left largely unaddressed; and it is this that the suo moto writ sets out to change.

Inadequacies of the present framework

One way in which appellate courts have sought information relevant to sentencing, is through the reports of a Probation Officer. In Birju, the Court suggested extending the mechanism of seeking reports of Probation Officers while determining sentences, as provided under the Probation of Offenders Act, 1958, to capital cases. The Delhi High Court in Bharat Singh referred to Birju and called for, and considered, the report of a Probation Officer while deciding if the death penalty should be imposed. Recently, the Supreme Court has also sought such reports starting with Manoj and following suit in several other capital cases.

However, as it was observed by the Court in the abovementioned order dated 29.03.2022, the report of a Probation Officer may not be sufficient to present the entire profile of the accused. Probation Officers by virtue of their experience and training are not equipped to conduct an extensive inquiry covering various facets of the background and life of the accused. Further, Probation Officers are often called in to conduct interviews only towards the end of the trial, allowing for insufficient time to build a comprehensive profile of the accused as a unique individual. Further, the Bachan Singh framework envisages separate roles for the court, the prosecution, and the defense to bring information relevant to sentencing. Probation Officers are agents of the state- and even if asked to conduct an independent inquiry, this mechachim cannot be considered as an alternative to material placed on record for sentencing by the defence.

In the absence of any guidance from the Bachan Singh framework on how mitigation is to be conducted, the burden of presenting sentencing information falls on defense lawyers who lack the time, opportunity and relevant skills to collect mitigation information in a comprehensive manner. Thus, there is a need for a system of professionals equipped with the necessary skills and training to collect, analyse and present mitigation related information before the sentencing courts. Before delving into who these professionals are, the meaning and purpose of mitigation must be discussed.

Understanding mitigation  

Mitigation, in the context of death-eligible cases, is a specialised exercise with a wide-ranging scope, which attempts to contextualise an individual’s life. It comprises collection, documentation and analysis of information about the accused, which is presented by the defense team before a sentencing court in aid of the argument that the accused is deserving of a punishment less than death. The mitigation exercise involves collection of information about the life history of the accused from documentary evidence as well as from mitigation witnesses  who may include family, friends, community members, co-workers, mentors, co-inmates, doctors, counsellors and prison officials.

It further includes analysis of the interplay of historical, cultural, social, familial and individual factors, and any other relevant factors that influence an individual’s perception, response, and understanding of the world and people around them. These factors can be both proximal and remote. Proximal factors include the experiences which directly affect the capacity of the accused to appreciate the wrongfulness of the criminal act, or their cognitive, emotional, and psychological state. Remote factors, on the other hand, may not have a clear nexus with the offence but are relevant to understanding the experiences and circumstances of the accused which may have shaped their perception and choices. The objective of this is not to give excuses on behalf of an accused, but to merely show how the motivations behind commission of crime rather than being ‘pure evil’ as one may perceive them to be, are a result of a wide array of risk factors. These risk factors, as argued by Haney, make the accused, by virtue of their circumstances and experiences, more vulnerable to negative outcomes, including commission of crimes. Mitigation also looks at protective factors which are positive circumstances such as the presence of a nurturing environment; since risk and protective factors mediate each other’s impact. Thus the mitigation exercise seeks to assess the extent of culpability or blameworthiness of the accused. Such an inquiry into the culpability of the accused was also envisaged by the Court in Bachan Singh.

The scope of this inquiry expands to a wide range of factors pertaining to the life of the accused before and after incarceration. The pre-incarceration factors to be looked at include, for example, prenatal details, development during formative years, access to essential public goods like adequate nutrition, health care and education, inter-generational history of physical and mental health, socio-economic circumstances, family structure and dynamics, community, and occupation. Post-incarceration factors pertain to the life of the accused in prison, including conduct in jail, relationship with co-inmates, continuing social ties with family and others outside prison, post incarceration mental and physical health, and any indicators of the probability of reform, rehabilitation, and social reintegration.

Mitigation investigators as a part of the defense team of the accused

It is not just the right of an accused to have a person from the defense team collect and present information relevant to sentencing, but also it is the duty of a defence lawyer in a capital case to ensure that such material is placed before the court. The defence’s role in presenting sentencing information before the court is aimed at not just highlighting mitigating factors to show that the accused is not deserving of a penalty as severe as death, but also to rebut any aggravating factors which may be placed before the court by the prosecution.

In order to conduct such an expansive and interdisciplinary inquiry, one must have essential skills and training to elicit relevant information about the accused through qualitative interviews with the accused themselves, and other mitigation witnesses. Based on the various themes emerging from these interviews, one must also be able to identify the areas which may benefit from the expertise of specialists such as clinical psychologists, anthropologists, psychiatrists, trauma specialists etc. Further, one must be adept at analyzing the information gathered and presenting it in an accessible manner before the courts. These skills are generally not a part of a lawyer’s repertoire, and hence, lawyers representing accused persons on trial for a death-eligible offence require assistance from mitigation investigators to prepare the accused person’s case on sentencing. Mitigation investigators may be persons qualified or trained in disciplines such as criminology, social work, psychology, sociology, and/or anthropology.

The term ‘mitigation investigator’ might be novel to Indian capital sentencing practice, but the nature of inquiry that mitigation investigators are required for, has a strong foundation in Indian jurisprudence. As early as 1976, the Court in Santa Singh emphasised on the need for “inter-disciplinary approach and calling for skills and talents very much different from those ordinarily expected of lawyers”. More recently, in the case of Mohd. Mannan, it was noted that the accused was not given the benefit of being “accompanied by a social worker” for an effective sentencing exercise. However, Indian Jurisprudence offers little guidance on the training, qualifications, and skills required for such mitigation inquiry.

As such, there is a need to institutionalise the practice of mitigation through the training and cultivation of mitigation investigators with the relevant skill set required for leading the mitigation exercise.

Potential for evolution in the capital sentencing framework through the suo moto writ

There seems to be consensus between the Bench and the other stakeholders involved in the proceedings that the present system of dealing with mitigation in our sentencing courts is inadequate and that there is a need for institutionalising mitigation. The primary issue before the court is the manner in which the practice of mitigation could be institutionalised within the existing framework.

While there is no clarity as of now regarding how this shall be done, the considerations ought to include deciding the stage of a criminal proceeding from which the mitigation investigator should be involved, the duties of the defence counsel with respect to ensuring that such exercise is conducted, and the corresponding duties of a sentencing court to elicit such information. It further remains to be seen how the suo moto writ would result in creating a system of mitigation investigators who may aid defence counsels with mitigation at different stages of the legal process.

Further, a natural corollary to institutionalising the practice of mitigation is also providing guidance to sentencing courts on how to deal with such information. Presently, in the absence of any normative clarity on the purpose of mitigation, judgments often merely quote key words like “young age” “socio economic background” “family dependents” without a discussion on the implications of these factors towards culpability or the probability of reformation.

With a plethora of literature about mitigation which may be considered by the Court, one hopes that the suo moto writ provides a strong normative foundation to our present framework of mitigation, articulating the purpose and scope of mitigation, and in doing so, frames guidelines regarding the manner in which information presented by mitigation investigators has to be considered and articulated in the sentencing judgment.

Sakshi Jain is a Litigation Associate at Project 39A.