– This blog has been authored by Anmol Yadav. The author is 3rd year student of B.A. L.LB. (Hons.) at Faculty of Law, Banaras Hindu University, Varanasi.
In the complex discourse surrounding capital punishment, the consideration of mitigating factors becomes paramount, particularly when viewed through the lens of the Biopsychosocial Model. This interdisciplinary framework, encompassing biological, psychological, and social dimensions, provides a nuanced understanding of an individual’s mental and emotional state. In exploring the mitigating factors within the context of capital punishment, the article delves into the intricate interplay of biological predispositions, psychological well-being, and societal influences. This examination not only prompts a re-evaluation of punitive measures but also underscores the imperative of a comprehensive understanding of an individual’s circumstances before irreversible decisions are made.
The Central Government recently informed the Supreme Court that it is considering creating an expert committee to assess whether execution by hanging in cases of death penalty is proportionate and whether there can be other more suitable methods of carrying it out. It is evident that the legislature is not planning to abandon capital punishment any time soon and that India will take some time before joining the abolitionists. In light of this, it is imperative for the judiciary to establish a framework for the efficient implementation of capital sentencing. The Indian Supreme Court has done well in shaping Indian criminal jurisprudence; however, capital sentencing is one area where the laws and judicial intervention both have proven to be inadequate.
Constitutionality of capital punishment
The constitutionality of capital punishment has been subject to challenge on numerous occasions. In the landmark case of Bachan Singh v. State of Punjab (hereinafter Bachan Singh), the Hon’ble Supreme Court upheld the constitutionality of the death penalty but emphasized that it could be awarded only if there exist ‘special reasons.’ In it, the constitutional validity of Sec. 302 of the Indian Penal Code as well as the constitutional validity of Sec. 354(3) of the CrPC were challenged. The revised CrPC of 1973 made the death penalty the exception rather than the rule. It was argued that this made the decision arbitrary because it was up to the judge’s discretion. The Supreme Court upheld the death penalty’s constitutionality. It maintained that, among other things, Sections 235(2) and 366(2), which call for pre-sentence hearings of the accused and the requirement of confirmation of capital punishment by the High Court, respectively, are safeguards against erroneous judicial discretion. It underscored that both the aggravating and mitigating circumstances of the offense as well as the offender must be taken into account. However, the judgement failed to provide for a framework for compiling mitigating circumstances. According to the data, the conception of the rarest of the rare doctrine (as it currently stands) has not made a dent in the death penalty figures. According to a study by Project 39A at National Law University in Delhi, trial courts across the country handed down 165 death sentences in 2022, which is a record high since 2000. The failure to take into account the mitigating factors is one of the most ubiquitous aspects of trial court judgments in death penalty cases.
Bachan Singh’s subsequent deformation
Trial courts across the country have abandoned the guidelines provided in the Bachan Singh case. In this regard, when imposing the death penalty in 42%, 62%, and 47% of the total cases resolved between 2000 and 2015 in Delhi, Madhya Pradesh, and Maharashtra, respectively, the trial courts did not even acknowledge the mitigating circumstances. The Supreme Court has emphasized on multiple occasions that the sentencing procedure would lack judicial leeway if mitigating circumstances were not taken into account before imposing the death penalty. In Mithu Singh v. State of Punjab, a five-judge constitutional panel relied on this argument to rule the mandatory death penalty (Section 304 IPC) unconstitutional since it prevents the employing of judicial discretion and mitigating circumstances in sentencing.
In Anshad v. State of Karnataka, the Court ruled that it should neither overlook nor disregard the mitigating circumstances when weighing the aggravating factors. Recent developments indicate that courts are increasingly counting on aggravating circumstances, moving away from Bachan Singh’s individualized sentencing guidelines and towards the “collective conscience” criterion. The court in Madhya Pradesh v. Afzal Khan observed that the offender’s good behaviour while in jail cannot serve as absolute proof of the likelihood of his recuperation. The aforementioned variances clearly demonstrate the negative effects of lacking rules for mitigating factors. Since Bachan Singh’s case, courts have either been unwilling to consider mitigating factors or have failed to do so effectively when deciding whether to impose the death penalty.
The biopsychosocial model and mitigating circumstances
The biopsychosocial model, which emerged in the field of psychology, examines how an individual’s behaviour is determined by a complex web of biological, social, and psychological variables. It reiterates the notion that an array of internal and external variables interact to determine human nature and conduct. A person’s growth is influenced by a variety of factors, including his genetic makeup, his upbringing, and the people in his immediate surroundings. These conditions have an impact on and mould human behaviour. Thus, it stresses that no individual action should be viewed through a constricting lens like ‘collective conscience.’ Rather, the courts must do well to zoom out and see the whole act of the accused through a biopsychosocial lens. It is only then that the courts will be able to effectively decide on the question of punishment as conceptualized by the Bachan Singh judgment.
The Court emphasized the need for an investigation into the accused’s background in Manoj & Ors. v. State of MP. It was noted that there is an assortment of factors that should be taken into consideration when determining whether the accused should be given the death penalty, including the social environment, age, educational attainment, whether the convict endured trauma earlier in life, family circumstances, a psychological assessment of conduct, and post-conviction behaviour.
It should nevertheless be highlighted that, after recording a conviction, the accused should be given a separate hearing with regard to the punishment in order to zoom out to analyse the mitigating factors via a biopsychosocial lens. The Hon’ble Supreme Court took suo motu cognisance of the issue in 2022 and stressed, inter alia, the necessity of separate hearings. When a separate hearing fails to be conducted, the defence is not given sufficient opportunity to document the potential mitigating factors that might be beneficial to the accused in the determination of the punishment. The prosecution’s evidence in the trial proceedings includes the aggravating factors, but the defence is deprived of the opportunity to bring the mitigating factors before the Court in the trial proceedings. The defence is only permitted to submit mitigating circumstances to the court after the conviction stage.
The Hon’ble Court should take this opportunity to constitute a permanent body that can be accorded the task of studying the mitigating circumstances brought by the accused before the Court. The Hon’ble Supreme Court has repeatedly ruled that it has the authority to create and authorise commissions under Articles 32 and 226. Using this authority, the courts have established several socio-legal commissions to conduct investigations into public interest litigation matters. The Court must extend the same line of reasoning to constitute a body or commission made up of a doctor, sociologist, psychologist, and psychiatrist, to name a few, that will ensure consistency at least in cases of appeals in the High Court in matters dealing with a death sentence. There has been a lot of variation in how the courts, particularly the trial courts, have handled mitigating circumstances. For instance, in some cases, the accused’s youth has been seen as a good mitigating factor, while in other cases, it has been flatly rejected.
At times, the accused suffers from an undiagnosed mental disease. It often goes unnoticed and the accused fails to present it as a mitigating factor to the court due to the brief window between the conviction and the imposition of punishment. Disorders like intellectual disability or antisocial personality disorder are often overlooked but they could well be taken as a mitigating factor for the accused. For example, in persons with intellectual disabilities, intellectual functioning and adaptive functioning are hindered in aspects of conceptual, social, and practical domains. It might be a result of prenatal problems. The adaptive qualities and understanding of a person suffering from it are not at all on par with the children of their age group. It could prove to be a good mitigating factor but it is only possible if the biopsychosocial lens is applied and the accused is studied subjectively.
Conclusion
A permanent body can bring uniformity by suggesting to the court what factors must be taken as a mitigating factor. In the last year, the Supreme Court has played a pivotal role in addressing the distortion of the test laid down in the Bachan Singh case. But since the legislature isn’t any closer to repealing the provisions governing capital punishment, it underscores the judiciary’s responsibility to evolve a mechanism for proper implementation of the death sentencing process where both the crime and the criminal are given due regard.
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