The Supreme Court’s decision to refer a suo motu plea to a Constitution Bench aims to bring clarity and a uniform approach on providing the convicts a chance to be heard before they are sentenced to death by hanging. Judgments by three-judge Benches in the past have reflected unanimity on granting a meaningful and effective hearing to the accused. The difference of opinion has been on the consideration of mitigating circumstances — factors that lessen the severity or culpability of a criminal act — and the time required to be given for bringing these on record. A five-judge Bench has been tasked with addressing the issue. Crucial guidelines are expected to be framed on the various aspects of sentencing in cases where death penalty is a possibility.
Capital punishment is a contentious issue, with many not in favour of it. India is among the several countries which have retained death penalty on the ground that it will be awarded only in the 'rarest of rare' cases. In 1980, a five-judge Constitution Bench had propounded this doctrine for sending murder convicts to the gallows, but there is no statutory definition of 'rarest of rare'. At present, there are over 480 convicts on the death row. Carrying out the sentence is a long-drawn-out process. The most recent executions — of four convicts of the 2012 Delhi gangrape and murder case — took place in 2020.
There is no denying that the scales are tilted against the convicts as most get to speak of the mitigating circumstances only after their conviction. This has prompted calls by the apex court for the need to ensure that the mitigating circumstances are considered at the trial stage itself. This could mean that factors related to the upbringing, education and socio-economic conditions are carefully looked into at the initial phase. Justice would, thus, be better served.
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