Mitigating factors in death penalty cases

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“Judges should never be bloodthirsty,” Justice Sarkaria wrote in Bachan Singh in 1980, the decision where the Supreme Court introduced the ‘rarest of rare cases’ standard for death penalty sentencing. I’m Gauri Kashyap and today’s episode on SCO’s channel is partly about the highly contested issue of death penalties, but mainly it’s about the rights of convicts and the processes that courts should follow before deciding how a convict should be punished for their crime. Justice Sarkaria’s comments in 1980 came in the context of the factors that courts must consider during sentencing. In theory, aggravating and mitigating factors offer context about the crime and the person who committed it. This includes details of the convict’s life, social and economic background and influences. It also factors in the convict’s life after incarceration, their conduct in jail, relationship with other inmates and their mental and physical health.

Courts typically organise a separate hearing for sentencing, particularly in crimes where capital punishment may be awarded to give the convict a chance to explain why the grave step should not be taken. The consideration of mitigating factors at such a hearing relies on the idea that a criminal is often made by circumstance and society. In practice, however, the court’s consideration of mitigating factors is haphazard and uneven. Take the Supreme Court’s judgment in Ramesh A. Naika v Registrar General, High Court of Karnataka, from 13th February this year. This was a case where a three judge bench overturned the death penalty awarded to a convict who had murdered four people, including his own two minor children. In sentencing Ramesh to death, the trial court had considered the following as aggravating factors: the brutality of the murders of his sister in law and mother in law, the “premeditated and unprovoked” murder of his children and his attempts to intimidate witnesses. The trial court’s list of mitigating factors simply noted that he was “employed as a bank manager and could have been a role model for society.”

When the case came to the Supreme Court, the Court noted that the trial court had not taken into consideration several mitigating factors submitted by the convict. Ramesh had claimed that A) he had no criminal antecedents B) he behaved well and had good relations with his family C) he desired to serve the elderly as a form of repentance D) he had no ill intention against his wife’s family as he had helped his sister in law get a job and lastly, much of the case relied on circumstantial evidence. Of these the Supreme Court considered as mitigating factors, the fact that he had no criminal antecedents and that he had good relations with the deceased person. The confusion of which factor should be considered as mitigating began in the wake of Bachan Singh in 1980 itself, as the Court refused to set down a specific criteria. “What is the relative weight to be given to aggravating and mitigating factors, depends on the facts and circumstances of the particular case,” the Court said. It also explained that neither the brutality of the crime nor the history of the criminal can become the sole criteria for assessing punishment. In Machhi Singh v State of Punjab just three years after, in 1983, the Court introduced the idea of creating a balance sheet of aggravating and mitigating factors. Instead of weighing the two factors, it recommended balancing them against one another. However, it has remained unclear how this balance has to be assessed.

While some benches have found that certain factors are more compelling, others have simply counted the number of factors under each heading to make their decision. In 2022, research collective Project 39A published a study on death penalty sentencing in trial courts between 2018 and 2020. The study found that courts lacked clarity on the very nature of mitigating circumstances and how they had to be applied. Of the 306 death sentences awarded during this time, mitigating circumstances were not accepted in 66% of cases. In 40% of the cases, mitigating factors were not even mentioned. That same year, the Supreme Court had taken suo moto cognisance of the need to create guidelines on mitigating circumstances. There, the Court acknowledged a series of conflicting judgments on the issue of whether a trial court has to hold a separate hearing for death sentencing. The bench found that a separate hearing affords a death row convict real and meaningful opportunity to present the mitigating circumstances. The matter was referred to a five judge Constitution Bench and the case remains pending. In Ramesh’s case last month, the Supreme Court found the mitigating factors compelling enough to commute his death sentence. The bench altered the sentence to life imprisonment instead, noting that he shall now await his natural end without remission in the confines of a penitentiary.

What do you think the Court should consider while doling out punishment to convicts? How should the Court strike this balance between aggravating factors and mitigating factors when sentencing a guilty person? Let us know in the comments below. Thank you for tuning in and I’ll see you soon.