The Supreme Court has referred to a larger bench of five judges the issue related to the framing of guidelines on potential “mitigating circumstances” that should be taken into account while dealing with cases where the death penalty is under consideration.
A bench of Chief Justice of India UU Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia issued an order in this regard. The court observed that there was a difference of opinion and approach amongst various judgments on 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.
The court noted in the order that there exists a clear conflict of opinions between two sets of three-judge bench decisions on the subject.
“As noticed before, this court in Bachan Singh had taken into consideration the fairness afforded to a convict by a separate hearing, as an important safeguard to uphold the imposition of a death sentence in the rarest of rare cases, by relying upon the recommendations of the 48th Law Commission Report,” the court said.
The court also noted that in all cases where the imposition of capital punishment is a choice of the sentence, aggravating circumstances would always be on the record and would be part of the prosecution’s evidence leading to a conviction. In contrast, the accused can scarcely be expected to place mitigating circumstances on the 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,” the court said.
“This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting a real and meaningful opportunity, as opposed to a formal hearing, to the accused or convict, on the issue of the sentence,” the court said.
The court was hearing a matter initiated by itself to consider the larger issue of considering the process to be followed by the courts in the country while deciding the award of the death sentence. The court used the suo moto on the issue to frame guidelines.