‘To ensure uniform approach’: SC refers issue of guidelines for death penalty to 5-judge bench

A three-judge bench, headed by Chief Justice U.U. Lalit and comprising Justices S. Ravindra Bhat and Sudhanshu Dhulia, said: “It is also a fact that in all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on 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 sentence,” it added.

The apex court referred the suo moto matter to the constitution bench to frame guidelines for courts, while examining mitigating factors for the convicts in death penalty cases.

During the hearing, the bench noted that 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 bench said noticing the lack of a uniform framework in this regard, the present suo motu case 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.

Citing apex court decisions, the bench said the common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing.

“What is conspicuously absent, is consideration and contemplation about the time this may require. In cases where it was felt that 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 said.

The top court observed that the question of what constitutes “sufficient time” at the trial court stage, requires consideration and clarity. “Consequently, this court is of the view that a reference to a larger bench of five Hon’ble 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.