Lakshmi Menon
Snehal Dhote
Introduction
Six years after being on death row a POCSO Special Court re-sentenced the accused to death in August 2022 in Anokhilal v. State of Madhya Pradesh. Convicted for child rape and murder case in 2013 [“Anokhilal I”] by the Khandwa POCSO court, in 2019, the Supreme Court struck down Anokhilal I on the grounds of fair trial violations of the accused. The Court remanded the case and ordered that the trial court must ensure “real and meaningful” legal aid to the accused in the retrial [“Anokhilal II”]. In this article, we analyse Anokhilal II and find it to be repeating the same mistakes as Anokhilal I. Only this time, the due process lapses have grave consequences as Anokhilal II has reinstated the death penalty on a prisoner who has already languished on death row. We argue that trial courts are duty-bound to ensure scrupulous adherence to due process requirements, not only for the specific violations observed in the remand but in all processes of the retrial.
Problems with Anokhilal I addressed in the Supreme Court’s Remand Order
In its 2019 remand order, the Supreme Court noted various procedural and substantive irregularities in Anokhilal I, that the Madhya Pradesh High Court missed.
The order noted that the trial court had proceeded with the trial in a hasty and perfunctory manner. The investigation had been completed within nine days of arrest, the examination of 13 prosecution witnesses was done within seven days and the trial was concluded within 12 working days. The conviction had been based entirely on last-seen evidence and had no eyewitnesses. Further, the forensic reports were placed on record only two days before convicting 21-year-old Anokhilal. Finally, the accused had been sentenced to death just a day after his conviction. The Court observed that the trial court focused only on the speedy disposal of the case and left it with “glaring gaps”. It further said that whilst expeditiousness is necessary, the same cannot happen at the cost of a fair opportunity for the accused to defend himself.
The Court also noted that the accused’s right to a fair trial and legal aid was violated by the trial court. The accused’s 313 CrPC examination was conducted even before forensic evidence had been led (thereby denying him the opportunity to explain all the evidence incriminating him). Further, the accused had not been given access to a lawyer until the case was committed to the sessions court. The charges had been framed on the same day as the appointment of the legal aid lawyer. By relying on Bashira v. State of U.P. (where it was held that the duty to comply with providing legal aid was substantive and not formalistic), the Court held that appointing the amicus curiae on the day as the framing of charges did not provide the defence with sufficient time to peruse case documents and to interact with the accused. Since the trial court was only concerned with only completing the trial, the Supreme Court held that the case lacked “real and meaningful” legal aid.
To ensure that the “infirmities” noted by the Supreme Court in Anokhilal I are not repeated, it also laid down some norms for courts to follow. The Court held that a lawyer should have at least 10 years of experience in practice to be appointed as a legal aid lawyer or amicus curiae in a capital trial. For confirmation cases in the High Court, Senior Advocates must be given first priority when considering for appointment as amicus curiae. They should be given sufficient time to prepare for the matter (minimum seven days) and should be allowed to interact with the accused. Through these norms, the Court placed an obligation on all courts to vigilantly ensure that the accused gets a full opportunity to be heard at all stages, especially in capital cases.
Remanded Trial Court Decision
On 29 August 2022, the trial court re-sentenced Anokhilal to death without a due reconsideration of the Supreme Court’s remand and the death sentence. While the basis of the remand was the lack of effective legal aid and subsequent violation of the accused’s right to a fair trial, Anokhilal II completely disregards the issues raised by the Supreme Court and replicates Anokhilal I.
Anokhilal II fails to even acknowledge the fact that the case was remanded by the Supreme Court. Before getting into the quality of its analysis, it must be highlighted that the judgement lacks even a mention of the remand or fair trial.
From the judgement, it is unclear whether or not the lawyer appointed for the accused was a legal aid lawyer, let alone one having a practice of at least ten years. There is ambiguity on the date of appointment of the lawyer, whether he was a legal aid lawyer, and the time provided to prepare the defence and interact with the accused. Lack of sufficient time for the lawyer would mean a fair trial violation of the accused’s rights. The fact that the new judgement did not feel the need to address these issues, or so much as mention them, is a matter of concern.
A plain reading of Anokhilal II reveals that it is mostly similar to its predecessor, with some parts being copied verbatim. A grave example of this can be seen in the sentencing portions of the judgement.
Insufficient Time at Sentencing
The death sentence was passed just one day after conviction, on 30th August 2022. Such a short duration leaves little room to adduce sufficient material on mitigating circumstances. Project 39A’s report has found that mitigating circumstances are not even considered in cases where death sentences are imposed on the same day (or within a short duration post conviction). Such durations hence contravene the right to a meaningful and effective sentencing hearing.
According to section 235(2) of the CrPC, a trial has to be bifurcated into two stages – the guilt stage and the sentencing stage. A bifurcated trial furthers the Bachan Singh mandate of individualised sentencing where the sentence has to be given after weighing aggravating and mitigating circumstances. While the question of duration between the conviction and the sentencing hearing is yet to be decided by the Supreme Court, insufficient time at sentencing violates the right to be heard.
The Supreme Court has made it clear that the accused has to be accorded real, effective and meaningful opportunity at all stages of the trial (see here and here) in capital cases. Therefore, during sentencing, all the circumstances of the offender such as age, socio-economic background etc have to be presented before the Court. According to a recent decision in Manoj v. State of Madhya Pradesh, it is the sentencing court’s duty to ensure that such material is presented and considered. However, Anokhilal II fails to adhere to this requirement of affording a real sentencing hearing.
Problematic Engagement with Mitigation
During sentencing, the trial court recorded the defence’s submissions on mitigating circumstances, including the probability of reform, young age, socio-economic background and illiteracy. The mitigating circumstances submitted by the defence were mentioned in a perfunctory, checklist-like manner. As per the record, the defence does not explain the circumstances to contextualise the accused’s background. This raises doubts about the quality of legal representation.
Thereafter, the court adopts a ‘balance sheet’ approach to mitigation and draws a list of aggravating and mitigating circumstances. In this approach, aggravating and mitigating circumstances are listed out and pitted against each other, to assess which circumstances outbalance the other. The balance sheet approach (brought in by Machhi Singh) has been criticised since it dilutes the obligation of the court to engage with these circumstances substantively, and instead confines mitigation to a ‘list’ of aggravating and mitigating factors which can be ‘outweighed’ by the other. The approach flies in the face of the very purpose of mitigation, which is to provide a narrative of the accused’s life in order to assess his culpability and to fix a punishment that is individualised to his circumstances.
Using this approach, the trial court rejects the relevance of numerous mitigating circumstances of the accused. The accused’s marginalised socio-economic background is discounted by citing that the deceased also belonged to the same community. However, the purpose of introducing the accused’s background as a mitigating circumstance is not for the same to be pitted against the victim’s circumstances, but for contextualising his circumstances that explain culpability.
Similarly, the young age of the accused is rejected as a mitigating circumstance. The accused had been 21 years at the time of the offence. In reinstating the death sentence, the court dismisses young age during offence (which plays a role in decision-making capacity) by characterising the relevance of young age as a question of ‘mercy’.
This reasoning has two issues. Firstly, it approaches a mitigating circumstance as a matter of granting mercy to the accused. However, mitigating circumstances are required as information to guide the choice of punishment and are hence necessary for justice, not mercy. Secondly, age during offence is considered mitigating given that it plays a role in a decision-making capacity, and in assessing the probability of reformation. The approach of the court towards these mitigating circumstances shows that the court had not conducted a real, meaningful and effective sentencing hearing.
Engagement with reform and the alternative of life imprisonment
As per Bachan Singh, a death sentence cannot be passed even if aggravating circumstances held greater weight. The court additionally needs to assess whether the alternative of life imprisonment was ‘unquestionably foreclosed’. Decisions such as Santosh Bariyar v. State of Maharashtra, and Manoj, have linked this question to the probability of reformation. Pertinently, Bachan Singh’s framework requires the State to adduce evidence on the improbability of the accused’s reformation. By introducing this requirement of ‘unquestionably foreclosed’, and by requiring evidence on the improbability of reform, Bachan Singh indicates that the underlying penological goals of its framework are reformation and proportionality.
The sentencing framework is premised upon these goals. Hence, it is not a sentencing court’s duty to invoke such goals as sentencing factors in individual cases. The court is required to follow the framework laid down (due weightage to aggravating and mitigating circumstances, assess the probability of reform, and whether life imprisonment is unquestionably foreclosed based on reform). Instead, not only does Anokhilal II mention deterrence and collective conscience as goals justifying the death sentence to the accused, but also invokes legislative intent behind the Criminal Law Amendment Act, 2013 in sentencing, thus erroneously characterising penological justifications as sentencing factors.
Further, the court rejects reformation altogether, despite its evidence from the accused’s jail conduct report by citing brutality, the helplessness of the deceased and the previous conviction of the accused. It cites Rajendra Prahladrao Wasnik v. State of Maharashtra (a curious case to cite given that it ultimately resulted in commutation during review) with similar facts to justify imposing death. Such an approach to reformation is incorrect on many grounds.
As noted in Manoj, reformation is dynamic, and assessing its probability requires the court to look at the accused’s conduct after the offence. Citing the brutality of the crime to reject reformation takes a backward looking approach and goes against the concept of assessing reform. Secondly, reliance on precedent with similar facts and outcomes to determine or reject reformation goes against the concept of individualising the punishment. Most importantly, the Court rejected the evidence of reformation, which directly contravenes the requirement in Bachan Singh. Overall, Anokhilal II’s reasoning reveals that the court took a crime-centric approach to the question of reformation as well.
Conclusion
Whilst the aforementioned defects are not new in trial courts, Anokhilal II must be set apart from other decisions. Anokhilal II is riddled with the same issues for which Anokhilal I was remanded. At the heart of the Supreme Court’s remand was the 2013 trial court’s failure to afford the accused the right to a fair hearing in various stages of the trial. Thereafter, the trial court in Anokhilal II had a greater burden to ensure that this right was followed scrupulously- not only within the terms of the Supreme Court’s remand but throughout all stages of the trial.
However, the trial court in Anokhilal II does not engage with the question of addressing due process defects from its predecessor. The court provides no clarity on whether or not the issues flagged by the Supreme Court were addressed. Moreover, Anokhilal II evidently fails to provide an effective hearing at sentencing to the accused, by adopting a perfunctory, crime-centric approach.
Anokhilal has been in prison since 2013, and on death row for six years. The second sentence is now pending a decision before the High Court. Whilst passing its decision, the High Court must not only consider the aforementioned problems with Anokhilal II, but also the fact that the accused has already undergone a prolonged period on death row. Further, in reviewing due process defects, the High Court must keep in mind that appellate courts are not best placed to correct the same. A fresh remand must not be considered, not only because of the lengthy duration spent by the accused on death row but also because the trial court has repeatedly violated the accused’s right to a fair trial, subsequently causing the accused to stay on death row in an arbitrary manner. Given both these circumstances, the appropriate course of action for the Court is to commute the accused’s sentence.
Lakshmi Menon and Snehal Dhote are Associates (Sentencing) at Project 39A, National Law University, Delhi.
