Mitigating circumstances in death penalty cases: Matter referred to Constitution Bench of Supreme Court

The Supreme Court on Monday referred to a Constitution Bench the issue of framing guidelines on how and when mitigating circumstances are to be considered during trial in death penalty cases [In Re: Framing Guidelines Regarding Potential Mitigating Circumstances To Be Considered While Imposing Death Sentences]..A Bench of Chief Justice of India UU Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia observed,"This Court is of the opinion that it is necessary 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. 24. 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 Hon’ble Chief Justice of India for appropriate orders in this regard."The Court noted that the present judgment was necessitated due to a difference of opinion and approach amongst various orders on whether after recording conviction for a capital offence, a court is obligated under law to conduct a separate hearing on the issue of sentence.While emphasising that the majority decision in Bachan Singh noted that convicts would be afforded a separate hearing towards why death penalty should be imposed, the Bench noted that in its precedent, "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).".The apex court was hearing a suo motu case to examine how trial courts dealing with death penalty cases can undertake a comprehensive analysis about the accused and the crime, especially the mitigating circumstances, while deciding whether or not the death penalty needs to be imposed.The suo motu case was registered by the Court in April while hearing a plea by one Irfan @ Bhayu Mevati (appellant) challenging the death penalty imposed on him by the trial court and confirmed by the Madhya Pradesh High Court..It was pointed out that the analysis and report by the probation officer in such cases do not consider the complete profile of the accused and may be dependent upon the interviews which would have taken place at the fag end of the trial.Hence, the Court had opined that aside from the probation officer, if someone from the defence side is given the facility of interviewing the accused right at the beginning of the trial, a comprehensive analysis can then be projected at a stage when the matter is considered from the standpoint of whether death sentence is to be imposed or not..To consider these aspects, the Court had converted an application filed by Project 39A of National Law University, Delhi into a separate writ petition.It had also issued notice to Attorney General KK Venugopal and the Member Secretary of the National Legal Services Authority (NALSA), in the matter.Further, it had appointed Senior Advocate Siddhartha Dave, assisted by Advocate K Parameshwar, as amicus curiae in the matter..Last month, the Court had reserved its orders on the issue, stating that they would either refer the issue to a larger bench, or frame the guidelines itself, which may overturn some earlier Supreme Court verdicts."We will have to see in such cases the consideration of mitigating circumstances has to be only after conviction or during trial as per judgments. Matters might have to be deferred so that sentencing can be given its due time. Where do we fit in that stage? In the fitness of things, I think it should be after all prosecution evidence is done being presented. Or we will have to send this to a larger Bench," Justice Lalit had orally opined..[Read Judgment]