Death Penalty : Supreme Court To Consider Laying Down Guidelines For Assessment Of Mitigating Circumstances

A Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and P.S. Narasimha decided to issue notice to the Attorney General for India and Member Secretary, National Legal Services Authority (NALSA) before setting out the guidelines. It appointed Senior Advocate, Mr. Siddhartha Dave and Advocate, Mr. K. Parameshwar to assist the Bench.

An Interlocutory Application was filed by the accused-applicant seeking permission for a mitigation investigator to interview him in prison for the purpose of collection of information pertaining to his congenital, mental and neurological conditions, which have material bearing on the issue of sentencing.

The accused was convicted and was sentenced to death by the Trial Court, which was affirmed by the Madhya Pradesh High Court by its order dated 09.09.2021. An appeal was preferred before the Apex Court, wherein notice was issued vide order dated 15.12.2021and the execution of death sentence was stayed.

Interlocutory Application and Note on Behalf of the Accused

Need for an elaborate investigation to collect mitigation information

The application filed through Project39A of the National Law University-Delhi indicates the requirement of such an elaborate investigation into the effects of proximal experiences like, capacity of the accused to appreciate wrongness of the act, cognitive, emotional and physiological state, as well as 'remote' factors, such as, poverty, neglect, trauma and abuse can be traced back to the judgment of the Apex Court in Santa Singh v. State of Punjab (1976) 4 SCC 190, wherein it was held that the accused ought to be allowed an opportunity to lead evidence on the question of sentence. The in-depth examination ensures that the obligation to hear the accused on the issue of sentence is not reduced to a mere formality as was cautioned by the Supreme Court in Muniappan v. State of Tamil Nadu (1981) 3 SCC 11.

Mitigation and the Mandate of Bachan Singh

A note filed on behalf of the accused defines mitigation as -

"…an exercise of collection, documentation and analysis of a wide range of information like historical, cultural, social, familial and individual factors and any other relevant factors that influence an individual's perception, response, and their understanding of the world and people around them."

It helps in contextualising the social and individual circumstances of the accused while determining the extent of their culpability in death penalty matters.

The Apex Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 conferred the duty on the courts to consider both the mitigating and aggravating circumstances for each accused while considering whether to impose death sentence.

Scope of Mitigating Circumstances cannot be limited

In recent judgments of the Apex Court in Lochan Shrivas v. State of Chhattisgarh LL 2021 SC 739 and Bhagchandra v. State of Madhya Pradesh LL 2021 SC 740, it has taken into account a variety of mitigating information pertaining to the socio-economic conditions, educational aspirations, state of mind of the accused, post-conviction mental health, community ties, scope for reformation etc. In Lockett v. Ohio 438 U.S. 586 (1978), the Supreme Court of the United States held the Ohio Statute, which limited the range of mitigating circumstances, to be unconstitutional.

Mitigation Investigators and Probation Officers

Considering the social history of the accused can be collected only by one trained in social-work, criminology, physiological, sociology, the application sought the permission to allow a trained mitigation investigator to collect the same. The involvement of the social worker in the scrutiny of mitigating circumstances had been encouraged by the Apex Court in Mohd. Mannan v. State of Bihar (2019) 16 SCC 584 and Dattatraya Data Ambo Rokade v. State of Maharashtra (2020) 14 SCC 290. It was asserted that the scope of enquiry of the Probation Officer who assesses the character and conduct of the accused is narrower than that of the Mitigation Investigator, who are trained and responsible to look into a variety of mitigating circumstances.

Mitigation Investigator Facilitates Effect Representation

The involvement of the Mitigation Investigator is crucial as they provide mitigating information without which, in effect, the accused cannot be said to have effective legal representation as guaranteed under Article 21 of the Constitution of India.

Supreme Court allowed application and converted it into writ petition

The Bench granted the prayers sought in the application for the applicant as well as the other accused in the matter.

On perusal of the application and the notes submitted on behalf of the accused-applicant, the Bench took note of the following -

1. Bachan Singh v. State of Punjab (1980) 2 SCC 684 made it abundantly clear that it is the bounden duty of the Court to consider all the mitigating circumstances while considering whether death sentence is to be imposed or not. In doing so, the Court can seek assistance from the inputs provided in the Report of the Probation Officer or the submission of the defence in this regard.
2. At times, the Report of the Probation Officer does not consider the complete profile of the accused and often are based on interviews conducted almost at the fag end of the trial.
3. A competent person on behalf of the defence can be facilitated to interview the accused at the beginning of the trial and provide comprehensive analysis when the Court is to consider whether death sentence be imposed on not.
4. The observations are tentative and facilitate the kind of hearing that such applications would require.

To examine the larger issues raised in the Interlocutory Application, the Bench directed the registry to convert it into an independent Writ Petition.

The matter to be next heard on 22.04.2022.

The interlocutory application had been moved through Project 39A, NLU-D and filed by Advocate-on-Record, Mr. Irshad Hanif.

[Case Title: Irfan @ Bhayyu Mevati v. State of Madhya Pradesh]

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