The Supreme Court Monday referred to a five-judge Constitution bench a suo motu case concerning the framing of uniform guidelines for the trial courts on granting “real and meaningful opportunity” on the issue of the sentence to the convicts held guilty for offences entailing capital punishment.
The top court said that this order is necessitated due to a difference of opinion and approach amongst various judgements, on the question of whether, after recording a conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence.
A bench of Chief Justice UU Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia referred to various verdicts on the issue passed by different benches of the apex court including in a 1983 judgement of Bachan Singh versus State of Punjab, where the top court, in its majority judgment, upheld the constitutional validity of the death sentence, on the condition that it could be imposed only in the “rarest of rare” cases. The bench said this court in Bachan Singh (1983 verdict) had taken into consideration the fairness afforded to a convict by a separate hearing, as an important safeguard to uphold the imposition of the death sentence in the rarest of rare cases, by relying upon the recommendations of the 48th Law Commission Report.
“Consequently, this court is of the view that a reference to a larger bench of five Judges is necessary for this purpose. Let this matter be placed before the Chief Justice of India for appropriate orders in this regard”, it said.
The bench said that in the 1983 verdict the court was conscious of the safeguard of a separate hearing, on the question of sentence, and articulated such a safeguard as a valuable right, which ensures to a convict, to urge why in the circumstances of his or her case, the extreme penalty of death ought not to be imposed.
The bench noted that it is also a fact that in all cases where the imposition of capital punishment is a choice of the sentence, aggravating circumstances would always be on the record, and would be part of the prosecution’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction.
“This places the convict at a hopeless disadvantage, tilting the scales heavily against him. This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of the sentence”, the bench said.
It added that the question of what constitutes ‘sufficient time’ at the trial court stage, in this manner appears not to have been addressed in the light of the express holding in Bachan Singh.
“This, in the court’s considered opinion, requires consideration and clarity”, the bench said.
It added that a common thread that runs through all these decisions (referred verdicts of the apex court) is the express acknowledgement that a meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing but what is conspicuously absent, is consideration and contemplation about the time this may require.
The bench said that in cases where it was felt that a real and effective hearing may not have been given (on account of the same-day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material, and thus fulfilling the mandate of Section 235(2).
It noted that this court’s decision in Manoj Pratap Singh versus State of Rajasthan (2022) is an example, where ‘sufficient time’ for compliance with Section 235(2) CrPC was considered; it was concluded that the trial court had “scrupulously carried out its duty in terms of Section 235(2)” since the sentence was awarded three days after the conviction, after considering both the aggravating and mitigating circumstances.
The bench said that after hearing the parties on the question of conviction in Manoj and others versus State of Madhya Pradesh (2022), this court had adjourned the matter for submissions on sentencing, with directions eliciting reports from the probation officer, jail authorities, a trained psychiatrist and psychologist, etc., to assist the accused in presenting mitigating circumstances.
“Noticing the lack of a uniform framework in this regard, the present Suo Motu… was initiated wherein this court has indicated by its orders the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard,” the bench said. It added that the apprehensions relating to the absence of such a framework were also recorded in the final judgement of Manoj and others versus the State of Madhya Pradesh, wherein the importance of a separate hearing and the necessity of background analysis of the accused, were highlighted.
“It was suggested that the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict, and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”, the top court said.
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