Crime and Punishment, in context

“Judges should never be bloodthirsty,” Justice R.S. Sarkaria wrote in Bachan Singh (1980), the decision where the Supreme Court introduced the ‘rarest of rare cases’ standard for death penalty sentencing. 

Justice Sarkaria’s pronouncement came in the context of the factors to be considered by courts 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 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 consideration of mitigating factors is haphazard and uneven.

Take the Supreme Court’s judgement in Ramesh A. Naika v The Registrar General High Court of Karnataka from 13 February this year, where a three-judge bench overturned the death penalty awarded to a convict who had murdered four people including his 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 “pre-meditated and unprovoked” murder of his children and his attempts to intimidate the witnesses. The Trial Court’s list of mitigating factors simply noted that he was “employed as bank manager and could have been a role model for society.”

The Supreme Court noted that the Trial Court did not take into consideration several mitigating factors submitted by the convict. Ramesh had claimed that (a) he had no criminal antecedents, (b) he had 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, (e) 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 had good relations with the deceased persons.

The confusion of which factors can be considered as “mitigating” began in the wake of Bachan Singh itself, as the Court refused to set down criteria. “What is the relative weight to be given to the 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 (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 certain factors 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 percent of cases. In 40 percent 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 judgements on the issue of whether a trial court has to hold a separate hearing for death sentencing. Such a hearing, the bench noted, affords a death row convict a “real and meaningful opportunity” to present mitigating circumstances. The matter was referred to a five-judge Constitution Bench. 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, noting that “he shall now await his natural end, without remission, in the confines of a penitentiary.”

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