SC’s Constitution Bench to rule on death penalty

New Delhi, Sep 20: Noting that there was a clear conflict of opinion by two sets of three-judge Bench decisions on mitigating circumstances to be considered while imposing death penalty, the Supreme Court on Monday called upon a constitution bench to lay down guidelines on how to provide a "real and meaningful" hearing to a convict before reaching a conclusion.

The apex 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.

"This court is of the opinion that it is necessary to have clarity on 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," a three-judge Bench of Chief Justice of India UU Lalit, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia said. "Let this matter be placed before the Chief Justice of India for appropriate orders in this regard," the Bench said.

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.

The top court had taken suo motu cognisance of the issue in April this year while hearing a petition filed by one Irfan, alias Bhayu Mevati, challenging the death penalty awarded to him by the trial court and confirmed by the Madhya Pradesh High Court.

Writing the judgment for the Bench, Justice Bhat 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 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."

Describing death sentence as "irreversible", the Bench had on August 17 noted that every opportunity should be given to the accused for consideration of mitigating circumstances so that "the court concludes that capital punishment is not warranted".

A death sentence is irreversible and every opportunity should be given to the accused for consideration of mitigating circumstances so that the court concludes that capital punishment is not warranted, the bench had observed while reserving its verdict on August 17.

The top court had taken note of the issue, saying there was an urgent need to ensure that mitigating circumstances for conviction of offences that carry the possibility of a death sentence are considered at the trial stage.

The case was titled as "Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences".