Supreme Court refers to 5-judge bench to decide on consideration of mitigating factors in death sentence cases

The Supreme Court on Monday said it is necessary to have clarity to ensure a uniform approach on the question of granting real and meaningful opportunity to the convicts to put forth mitigating factors in death penalty cases.

The top court referred a Suo Motu matter to the Constitution bench for framing guidelines for the courts to examine mitigating factors for the convicts in death penalty matters.

A three-judge bench presided over by Chief Justice U U Lalit said 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," the court said.

The bench, also comprising Justices S Ravindra Bhat and Sudhanshu Dhulia, said 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.

Consequently, this court is of the view that a reference to a larger bench of five Judges is necessary for this purpose, the bench added.

The court directed for placing the suo motu matter before the Chief Justice of India for appropriate orders in this regard.

The bench pointed out there have been acknowledgements in earlier judgements 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.

"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) of the Criminal Procedure Code," the bench said.

"However, the question of what constitutes ‘sufficient time’ at the trial court stage...requires consideration and clarity," the bench further said.

During the hearing, 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.