The Supreme Court on Monday called on the Constitutional Court to lay down guidelines on how to ensure a “genuine and meaningful” hearing for the convicted before concluding that hanging remains the only appropriate punishment. A bench headed by Chief Justice of India Uday Umesh Lalit ruled that it was necessary for the apex court to come up with an authoritative ruling on various aspects of punishment in cases where the death penalty is an option.
She noted the differences of opinion reflected in some of the three judges’ rulings on the time a convict must be given to record mitigating circumstances before sentencing. This Court is of the view that there is a need to be clear on the matter to ensure a uniform approach on the issue of giving a real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict on the issue of punishment,” said the bench, which also had Justices S Ravindra Bhat and Sudhanshu Dhulia.
The court regretted that in all cases where the imposition of the death penalty is a sentencing option, the aggravating circumstances would always be recorded and form part of the prosecution’s evidence, leading to a conviction. “Since the accused can hardly be expected to place mitigating circumstances on record as the stage for that is post-conviction. This puts the convict at a hopeless disadvantage and the scales are heavily tilted against him,” it added.
Citing the Constitutional Court’s landmark decision in Bachan Singh (1980), the apex court pointed out that the verdict upheld the constitutionality of the death sentence on the condition that it could be imposed in the “rarest of rare” cases. At the same time, the 1980 judgment emphasized the provision of a separate sentencing hearing so that the convict could urge why the extreme death penalty should not be imposed. “This aspect – the presence of ‘valuable guarantees’ – was therefore an important consideration for upholding the death sentence in the rarest of rare cases,” the court said.
Subsequently, several three-judge bench decisions emphasized that after recording a conviction, the accused should be given a separate hearing on the question of punishment. However, the court said in its ruling Monday that several other decisions by the three-judge panel held that neither the same-day sentencing nor the absence of an opportunity at the trial stage constituted a breach of a nature that must vacate the sentencing order. This line of judgment held that where the convict was not given a real and effective hearing at the trial stage, the error can be remedied by giving such an opportunity at the appeal or review stage.
The common thread running through all these decisions is the express recognition that the accused must be afforded a meaningful, genuine and effective hearing with an opportunity to present material relevant to the question of conviction. What is visibly missing is the deliberation and contemplation of the ‘time’ this may require,” the bench said.
Referring to the larger panel of five judges, he added: “In light of the above, there is a clear conflict of opinion between the two sets of three panel decisions on this subject… The question of what constitutes ‘sufficient time’ at the trial stage appears to was not addressed … That, in the court’s view, requires discretion and clarity.’
In March, the court suo motu launched proceedings to overhaul the way the country’s courts hand down death sentences, noting that it was time to introduce greater objectivity in the criminal justice system. It also contemplated making a psychological examination of a condemned prisoner mandatory along with seeking a report on the prisoner’s conduct at the time of the inquiry as to whether the gallows remained the only appropriate punishment.
In May, another bench headed by CJI Lalit and comprising Justice Bhat issued a series of directives ordering courts to require a mental health report on every criminal and even assess his behavior in prison. The order was passed while hearing an appeal filed by three death row convicts from Madhya Pradesh.
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