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INDIVIDUALISED YET PRINCIPLED SENTENCING

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Introduction: In this civilized world capital punishment has always been a hotly debated topic.There are various categories of people,some supporting the capital punishment(retentionists),some in support of its abolition(abolitionists) and some treading the middle path,i.e vouching for keeping it in the law but imposing a moratorium on its use.There has been extensive due deliberation and debates on this sensitive topic,nevertheless it still remains a grey area in the domain of criminal law and penology.This write-up is not concerned with the question of whether or not the capital punishment be abolished or retained,the aim of this write-up is to highlight inherent safeguards that have been accorded by the law of the land to ensure principled sentencing in matters related to capital offences.The write-up endeavors to objectively suggest some measures that could adequately strive to make the sentencing in capital offences more principle based and less judge-centric.

It is the well-settled proposition of law that awarding and executing the death penalty is absolutely constitutional in India. This has been settled long back in Bachan Singh landmark judgment. The Apex Court in its entirety had upheld the constitutionality of the death penalty but restricted its use only to cases that fall within the ‘rarest of rare’ category. This doctrine propounded by the court was an outcome of judicial innovation, the sole objective of this was to minimize the abrupt use of the death penalty to a few categories of cases that exhibited extreme levels of culpability, brutality, and depravity. The intention of Bachan Singh’s ruling was to make the sentencing more principle-based than judge-centric. Also to make the sentencing procedure free from arbitrariness, whims, fancies, and personal predilection of the judges constituting the bench. Has the landmark judgment stood the test of time? Has it been effective in resolving the anomaly regarding the judge-centric approach towards capital sentencing? The answer to the former would be in the affirmative, Bachan Singh has successfully stood the test of time, but the answer to the latter would be in the negative. Unfortunately, the ruling has not been able to achieve what it sought, there has been a varied interpretation of the ruling itself. Inconsistent application of the death penalty has led to explicit subjectivity in the arena of capital sentencing. The Hon’ble Supreme Court of India in its recent judgments concerned with the question of death sentence(Shankar Kisanrao Khade, Shatrughan Chauhan, V Sriharan, and Swamy Shradanand) has emphasized the necessary safeguards that are to be taken into consideration at each and every stage of the death penalty adjudication. The concern for respect and dignity of human life is discernible from the aforementioned verdicts passed by the court. After the Maneka Gandhi historic verdict in 1978, the deprivation of life or liberty by the state can only be done subject to the just, fair, and reasonable procedure established by law. Section 354(3) of CrPC provides for recording of special reasons in cases wherein the court awards death sentence. It can be safely deduced that the legislative intent of the parliament was to ensure that life imprisonment becomes the rule and death sentence the exception. Even Section 366 of the CrPC which states about the confirmation of the death penalty by the High Court also shows the laws intend a prudent and rational decision in this sphere rather than being overwhelmed by judicial spontaneity. Section 235(2) of the CrPC also mandates pre-sentence hearing of the accused on the quantum of sentence, especially in death penalty cases, the accused has an opportunity to bring in front of the court mitigating circumstances that may have a bearing upon the sentence. Articles 72/161(clemency powers of the executive) is a constitutional safeguard that has been provided to each and every person. These powers are to be exercised by the Hon’ble President of India or Hon’ble Governor of States on the aid and advice of the council of ministers. The Apex Court has laid down guidelines for the judicial review of the orders passed by the executive in exercising the mercy powers. Keeping in mind the irrevocability of the death penalty, the judiciary as well as the executive backed by the legislature have worked upon various safeguards to ensure that there is the least irregularity in the capital punishment domain.

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Undoubtedly, the eventual goal for the global society shall be the abolition of the death penalty but this comes with a rider for a developing country like India where there is disparity in almost all spheres of life. The retention of the death penalty by the organs of the state itself is indicative of the fact that there is the popular will to not do away with the harshest form of punishment. Neither the State nor its subjects are ready yet specifically in the light of India. So what do we do? Do we just let death sentences be awarded based on the temperament of judges? Is there any method/blueprint to mitigate the personal predilection of judges coming in the way while awarding capital punishment? The answer to these questions requires thorough analysis. The author strongly suggests statutorily creating a sentencing committee comprising of criminologist, psychologist, sociologist, probation officer, and an eminent jurist to reasonably inform the presiding judge/judges by providing research reports and conducting extensive in-depth probes in relation to the person on death row. When all these factors are cumulatively assessed, it ought to provide the judge with a more informed viewpoint on the question of sentence and which will also aid in minimizing the personal predilection of the judge. The sentencing committee can be of immense help as the presiding judge may not have the requisite expertise and resources in obtaining information that is pertinent in coming to a just decision in respect to the sentence. The sentencing committee may exclusively be committed to functioning in death penalty cases. Ultimately, there is a pressing need for the overall assessment of the conducive standard that is required, so that work towards the abolition of the death penalty can be done. Until then the creation of a statutorily recognized sentencing committee on an immediate basis would be of much help to the judiciary in assisting towards awarding the death penalty in appropriate cases. In matters of life and death, things shall be on an expedition mode always. As the popular adage goes that “justice must not only be done but must be seen to be done”.    

      

( Harsh Kashyap, Law student, from DES Shri Navalmal Firodia Law College, Pune.

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