Death Penalty -Trial Court Must Elicit Information From State & Accused On Mitigating Circumstances : Supreme Court Issues Guidelines

Observing that death sentences are most often imposed by the trial courts in a retributive sense, the Supreme Court has issued a set of practical guidelines to ensure that the mitigating circumstances of the accused are properly considered at the trial stage itself.The Court noted that in most cases, the information relating to the mitigating circumstances are collected at the appellate stage, and such information mostly relate to the post-conviction circumstances. "The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singh test", the Court observed.A bench comprising Justices Uday Umesh Lalit, S Ravindra Bhat and Bela M Trivedi noted that there is no "concrete framework" to measure and evaluate the possibility of reformation. The judgment authored by Justice Bhat stated that the inconsistencies in the approach of trial courts contribute to a "patchwork jurisprudence on capital sentencing", and in turn "undermines the equality principle and due process protection"."As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation", the Court said.Accordingly, the bench issued the following "practical guidelines to collect mitigating circumstances".Mitigating circumstances must be considered at the trial stage; Court must elicit information from the accused and the StateFirstly, the bench stated, "There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage". To do this, the trial court must elicit information from the accused and the state, both.State must produce materials disclosing the psychiatric and psychological evaluation of the accused.The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and(7) spelled out in Bachan Singh judgment(the factors are extracted below for reference). Even for the other factors of (3) and (4) - an onus placed squarely on the state – conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.State must collect additional information relating to family background, education, socio-economic background of the accused:Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:a) Ageb) Early family background (siblings, protection of parents, any history of violence or neglect)c) Present family background (surviving family members, whether married, has children, etc.)d) Type and level of educatione) Socio-economic background (including conditions of poverty or deprivation, if any)f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)g) Income and the kind of employment (whether none, or temporary or permanent etc);h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc.This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.Information regarding accused's jail conduct should be called for, including psychiatric and psychological reportLastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court's conviction, or High Court's confirmation, as...

Death Penalty -Trial Court Must Elicit Information From State & Accused On Mitigating Circumstances : Supreme Court Issues Guidelines

Manu Sebastian

The state must produce material disclosing psychiatric and psychological evaluation of the accused.

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