Bhavesh Seth

This article first appeared in livelaw.in and can be accessed here.

On September 19th, 2022, a 3-judge bench of the Supreme Court referred certain issues of death penalty sentencing to a larger constitutional bench. One of these issues relates to the amount of time required to collect and present mitigation evidence at the stage of sentencing. This issue is particularly important because, as evidenced by Project 39A’s study, sentencing persons to death on the same day as their conviction is pervasive across trial courts.

Same-day sentencing contravenes an important procedural safeguard in capital sentencing; i.e., the opportunity to collect and present sentencing-related evidence to effectively argue against the punishment of death. If a court imposes the death sentence without complying with this due process requirement, the only remedy available to an appellate court is to commute the sentence to life imprisonment. The commutation is necessary to correct the egregious procedural error caused by hasty sentencing: forcing an individual to suffer the inhuman experience of being on death row.

Sentencing hearings in death penalty cases

S. 235(2), Code of Criminal Procedure (CrPC) divides criminal trials into two stages: a hearing on conviction and a separate hearing on sentencing. This bifurcated trial was not prescribed by the old 1898 CrPC. It was introduced after the 48th Law Commission of India (1971) recommended that both prosecution and defence should be heard on the point of sentence and be allowed to present sentencing-related evidence. Through this recommendation, the Commission sought to include the “characteristics and background” of the offender in the court’s sentencing analysis. Thus, the legislative intent behind introducing S. 235(2) was to ensure individualised sentencing that accounts for the unique circumstances of an individual.

In death penalty cases, S. 354(3), CrPC requires that judges give special reasons before imposing a death sentence. This provision captures the legislature’s intention to impose death as an exceptional punishment only in the rarest of rare situations; and for the lesser alternative of life imprisonment to be the sentencing norm. The sentencing hearing under S. 235(2) supplements S. 354(3) in two ways: one, it gives the accused an opportunity to explain why they do not deserve the exceptional punishment of death; and two, it helps the court gather evidence to arrive at a just decision on sentencing.[1] The special reasons required under S. 354(3) can only be recorded after a meaningful sentencing hearing; where the accused is given a real and effective opportunity to be heard.[2]

These procedural safeguards, i.e., a separate sentencing hearing and the need to give special reasons for why the lesser alternative of life imprisonment is inadequate, saved the death penalty for murder from the vice of unconstitutionality in Bachan Singh v. Union of India (1980). The separate sentencing hearing guarantees fair, just, and reasonable procedure that offers the convict an opportunity to defend themselves.[3] It follows that the hearing cannot be a mere formality[4] – the convict must be given a meaningful, real, and effective opportunity to oppose the death sentence.[5]

A meaningful, real, and effective hearing

In 1976, Santa Singh v. State of Punjab held that a real and effective opportunity means that the accused should be allowed to present all information relevant to the question of sentence – as oral submissions, affidavits, or otherwise. This information helps the court understand the personal, social, and other circumstances of the case so that it can individualize sentencing.[6] It is not enough to simply mention these circumstances in court. The defence must analyse this information and connect it to relevant penological objectives, especially the convict’s probability of reform, in order to assist principled judicial reasoning.[7]

Thus, not only must a wide range of material be collected, it must also be analysed and made relevant for the court’s purposes. This task is beyond a lawyer’s ken. Mitigation information relates to the circumstances of the convict, which invariably requires an interdisciplinary examination of the convict’s history, family, socio-economic circumstances, behaviour, and psyche. To ensure that this exercise of collecting this material is meaningful, the Supreme Court has deemed it necessary to appoint social workers, mental health professionals, sociologists, and other experts as part of the defence team.[8]

The burden of collecting material is also on the court, regardless of whether the defence makes relevant submissions during the sentencing hearing.[9] In Muniappan v. State of Tamil Nadu (1981), the Supreme Court clarified that the judge must make a genuine effort to elicit all information that will eventually inform the decision on sentence. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) similarly observes that the court must play a proactive role to record all relevant information during the pre-sentencing hearing. Recently in Manoj and Ors. v. State of Madhya Pradesh (2022), the Supreme Court extended this burden to the state by mandating a jail conduct report, and psychiatric and psychological evaluation reports of the convict. Thereby, placing the burden on the state to prove that the convict cannot be reformed and rehabilitated. This means that while the defence has a right to bring evidence on record, this evidence can come after and in response to the state’s arguments against the probability of reformation and rehabilitation.

This raises two questions:

Can the opportunity be meaningful, real, and effective if the convict is asked to argue on sentencing on the same day that they are convicted?

What is the consequence of denying a meaningful, real, and effective opportunity to the convict?

The problems with same-day sentencing

As a general rule, the Supreme Court has recommended that trial courts adjourn matters after recording conviction to give parties sufficient time to collect information and prepare for the sentencing hearing.[10] Notably, the 3rd proviso to S. 309, CrPC prohibits adjournments for the purpose of a sentencing hearing. Despite this, the Supreme Court has carved out an exception for sentencing in capital cases. Acknowledging the valuable right that S. 235(2) grants to the accused, the Court decided that criminal procedure should be suitably adapted to accommodate this right.[11]

However, in Accused X v. State of Maharashtra (2019), the Supreme Court decided that the measure of a meaningful hearing is qualitative, not quantitative; i.e., it is not conditional upon the time or the number of days that were given. If parties are prepared and willing, the court reasoned, nothing stops a court from hearing sentencing submissions on the same day as recording conviction. Accused X relies on precedent (Jai Kumar (1999); Sevaka Perumal (1991); Vasanta Sampath Dupare (2017)) as per which the opportunity was considered meaningful simply because the defence counsel was able to make some arguments on the same day as conviction, or they did not ask for additional time to prepare. This is problematic for four reasons.

One, same day sentencing does away with the due process safeguard of S. 235(2) in death penalty cases. It denies the accused an opportunity to bring all relevant material on record after conducting a thorough investigation. The involvement of trained professionals and the need to collect a range of information about the convict is a time-consuming process. It is unreasonable to expect the defence to be ready with this material during or before the conviction hearing, as S. 235(2) becomes relevant only after an individual is convicted.

Two, same day sentencing disadvantages the defence more than the prosecution. For the prosecution, it is convenient to cite facts of the crime as aggravating circumstances because this information is already on record as part of the case on conviction. Having a sentencing hearing on the same day as conviction centres aggravating circumstances of the crime in sentencing analysis – not only are they fresh in the mind of the sentencing judge, but given the nature of crimes that are punishable by death, they also demonstrate the brutality of the crime. Thus in Manoj (supra), the Supreme Court recognised that aggravating circumstances seem “far more compelling, or overwhelming” in the absence of well-documented mitigating circumstances at the trial level, which causes the sentencing court to be prone to imposing the death penalty. Similarly, while referring certain issues to a larger constitutional bench, the Court observed (para 23) that the lack of an opportunity to place mitigating circumstances on record “places the convict at a hopeless disadvantage, tilting the scales heavily against him.” By denying time to collect additional evidence and being expected to make sentencing submissions on the same day, the defence is forced to make submissions primarily on the basis of the evidence on record, or make stock submissions that do not relate to the unique circumstances of the accused.

Three, the lesser sentence of life imprisonment can only be said to be foreclosed when the court has found that the convict is unlikely to reform and be rehabilitated. Bachan Singh (supra) and more recently, Manoj (supra), place the primary burden of disproving this on the state. The accused should be given an opportunity to collect and lead evidence in rebuttal, towards demonstrating the convict’s probability of reform. This analysis is only possible after conviction is recorded and the state has, by evidence, proved that reformation is unachievable.

Four, whether the opportunity is real, meaningful, and effective should not depend on the industriousness or guile of the accused to object and ask for more time. The Supreme Court has made it clear that it is the court’s duty to gather relevant material and pass a reasoned order on sentence. The safeguards in S. 235(2) and S. 354(3) are not just part of an individual’s right to be heard before being sentenced, but are also part of the due process to be followed by courts before imposing the death penalty.

Fixing the error – remand, remedy, or commute?

Courts have responded to deficient sentencing hearings in one of two ways. One approach is to remand the matter back to the sentencing court for a fresh hearing.[12] The other is to remedy the defect by conducting a fresh sentencing hearing at appellate stages.[13]

As argued here, appellate courts are not appropriate forums to conduct the fact-heavy examination of sentencing-related evidence for the first time. Additionally, the problem with remedying the error in appellate proceedings is that it denies the accused the opportunity to challenge the findings of the sentencing hearing, as pointed out here. An appellate-stage remedy conceals the real problem with same-day sentencing; which is that the accused is denied the opportunity of sentencing information being scrutinized by multiple judicial minds before the court imposes a death sentence.[14]

The alternative solution of remanding the matter for a fresh sentencing hearing has its own concerns. Given the inordinate delays plaguing death penalty sentencing, remand would offend the convict’s right to a fair trial and prolong their suffering on death row. Project 39A’s empirical study ‘Deathworthy‘ based on interviews with prisoners sentenced to death and their families shows that prisoners suffer profound emotional, psychological, and physical trauma that often manifest as serious mental illness. The uncertainty of living in the shadow of the gallows is agonizing. At the heart of this agony lies a tragic paradox: if society has told them that they must die, why continue living? There is little to hope for, in case of a remand. The matter is sent back to the same court that imposed the initial sentence, so a strong cognitive bias operates against the convict. The trauma of being sentenced to death is itself jarring because death row convicts rarely get a chance to understand the legalese shrouding their proceedings. Incessant delays are dehumanizing and have a significant adverse impact on a convict’s health. If this delay is caused by a sentencing court’s error and its failure to adhere to due process before inflicting the harm of imposing a death sentence, the error should eventually be seen as an extenuating circumstance, justifying commutation.

Deficient sentencing hearings are both a due process violation and a breach of the accused’s right to a fair trial, held to be a miscarriage of justice by the Supreme Court.[15] Therefore, the only possible recourse available to a court is to commute the death sentence to a sentence of life imprisonment.[16]

Conclusion

A meaningful, real, and effective hearing is an important safeguard against unjust sentencing. During recent hearings in Re Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences, the Court acknowledged that this opportunity of such a hearing is often denied to convicts before lower courts. The separate sentencing hearing is rarely followed, in practice. The larger bench to which this matter has been referred will likely rule on whether Accused X (supra) is right in saying that same day sentencing is not inherently problematic, as long as parties were heard on the point of sentence and they did not ask for more time. Given the broad range of material to be collected and the need for trained professionals to be involved in this process, the constitutional bench must disagree with the reasoning in Accused X and hold otherwise.

Citations

[1] Allauddian Mian v. State of Bihar (1989) 3 SCC 5; Anguswamy v. State of Tamil Nadu (1989) 3 SCC 33.

[2] Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706.

[3] Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706.

[4] Allauddin Mian v. State of Bihar (1989) 3 SCC 5, para 10; Muniappan v. State of Tamil Nadu (1981) 3 SCC 11 para 2; Anugswamy v. State of Tamil Nadu (1989) 3 SCC 33; Malkiat Singh v. State of Punjab (1991) 4 SCC 341.

[5] Accused X v. State of Maharashtra (2019) 7 SCC 1.

[6] Tarlok Singh v. State of Punjab (1977) 3 SCC 218.

[7] Manoj and Ors. v. State of Madhya Pradesh 2021 SCC Online SC 3219.

[8] In fact, the suo moto writ petition resulting in the aforementioned referral order was instituted to inter alia examine the possibility of institutionalizing the involvement of such professionals in capital cases.

[9] Ajay Pandit and Anr. v. State of Maharashtra (2012) 8 SCC 43; contra Sevaka Perumal v. State of Tamil Nadu (1991) 3 SCC.

[10] Allauddin Mian v. State of Bihar (1989) 3 SCC 5; Malkiat Singh v. State of Punjab (1991) 4 SCC 34; Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916; Allauddin Mian v. State of Bihar (1989) 3 SCC 5; Muniappan v. State of Tamil Nadu (1981) 3 SCC 11.

[11] Sevaka Perumal (1991) 3 SCC 471.

[12] Mukesh v. State (NCT of Delhi) 2017 3 SCC 717, 2017 6 SCC 1; Anguswamy v. Tamil Nadud (1989) 3 SCC 33; Accused X (2019) 7 SCC 1.

[13] Mukesh v. State (NCT of Delhi) 2017 3 SCC 717, 2017 6 SCC 1; Accused X (2019) 7 SCC 1.

[14] Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737.

[15] Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1.

[16] Anshad v. State of Karnataka (1994) 4 SCC 381; Santa Singh (1976) 4 SCC 190.

Bhavesh Seth is a Litigation Associate at Project 39A, National Law University Delhi. Project 39A was involved in the proceedings that resulted in this reference order.

Articles