By Atharv Gupta
Even former Supreme Court (‘SC’) Judges feel that uncertainty continues to exist during the sentencing phase in death penalty cases. In this post, I shall argue that the application of the ‘criminal test’ in its current form is highly unjust. I will further argue that as a first step towards evolving guidelines for sentencing which are not uncertain and are in consonance with the rule of law, there exists a need to introduce execution impact evidence (‘EIE’) as a mitigating factor.
I. The Unjust Application of the ‘Criminal Test’
The Code of Criminal Procedure, 1973 (‘CrPC’) introduced certain procedural safeguards, such as compulsory pre-sentencing hearings and recording of ‘special reasons’ in death penalty cases. Another such safeguard is the ‘criminal test’ which is a part of the mitigating circumstances that a court needs to consider during the sentencing phase. This test can help the accused avoid capital punishment if circumstances favouring the accused like possibility of reformation, lack of intention, young age can be proven. The four arguments reasoning out why the application of the ‘criminal test’ during the sentencing phase remains highly unjust are as follows:
First, Bachan Singh v. State of Punjab mandated that it was the State’s responsibility to prove impossibility of reform and rehabilitation of the accused. However, the courts have failed to check whether, during the sentencing stage, the State was successful in bringing evidence which disproved mitigating circumstances favouring the accused. Shockingly, there have been cases where the death penalty has been upheld by the Apex Court on the ground that the counsel for the accused had failed to produce a single mitigating circumstance. The court made no effort to hold the State responsible for its failure to bring evidence proving the probability of reform. Then, there are Judges of the Apex Court who have given their personal opinion about the possibility of reformation and have failed to mention or appreciate mitigating circumstances in favour of the accused. In Mohammed A.M.A Kasab v. State of Maharashtra, Justice Alam came to the conclusion that Kasab could not be reformed by observing that the Trial and High Court (‘HC’) Judges who had tried him had failed to see any signs of remorse in him. Similarly, in Ajitsingh H. Gujral v. State of Maharashtra, the Court held that it was their opinion that the accused could not be reformed since he had committed the crime in a cruel and barbaric manner.
Second, during the sentencing stage, when the mitigating evidence is placed before the court, many HC and SC Judges have blatantly disregarded the character evidence rules laid down in the Indian Evidence Act, 1872 (‘IEA’). In Shraddananda v. State of Karnataka, Justice Sinha commuted the death sentence to life imprisonment and made it clear that the character of the accused could not factor in during the sentencing stage because of Sections 53 and 54 of the IEA. Justice Katju upheld the death sentence in this case. While doing so, instead of calling for mitigating evidence from the State and the defence counsel that might have showed possibility of reformation of the accused, he brutally attacked the character of the accused, making this one of the main reasons for the confirmation of the death sentence. Unfortunately, even in cases where the court has commuted the sentence to life imprisonment, it has done so by attacking the character of the accused, thereby going against Section 54 of the IEA. This is worrisome since the general rule is that the bad character of the defendant would be inadmissible since its prejudicial effect would outweigh its probative value. The Courts have failed to exercise extra caution in death penalty cases where the ‘bad character’ of the accused can have a serious prejudicial impact during sentencing.
Third, two recent SC Judgments reflected upon the consequences of the State not producing evidence to prove the impossibility or possibility of reformation of the accused. Although not a part of their ratio, these judgments called for courts to make use of Probation Officers (‘PO’) to assist them in knowing the possibility of reform and rehabilitation of the accused. The Delhi HC has made use of the report of the PO’s in two cases. This is a welcome step as it ensures that some additional evidence is available during the sentencing stage which will help the courts in making an informed decision. As seen from these two cases itself, the report of the PO resulted in the Delhi HC ruling that the accused could be reformed, thereby resulting in the commutation of the death sentence. However, involving the PO in evidence collection has its own drawbacks. In Mithlesh Kumar Kushwaha v. State, Justice G. Mittal made use of the PO’s report to come to the conclusion that the accused could be reformed. Fortunately, she was careful enough to hold that the part of the Report where the PO seemed to have got prejudiced by the information relating to the crime was clearly impermissible. This is the reason why a report from the PO is not the ideal solution as it would be against the principles of fairness. A PO is appointed by the State Government. The State’s interest is to ensure that every accused in a death sentence case is hanged. Hence, the PO making observations like “there was no feeling of guilt or repentance” without recording any substantial reasons to prove the same, points towards the inherent bias that the State and its appointed officers have against the accused in death penalty cases.
In the two cases before the Delhi HC, such biased observations of the PO did not cause any harm as the cases were before Judges who have questioned the death sentence time and again. However, a biased PO’s report can be catastrophic to the case of the defence if the matter is before a Retentionist Judge.
Fourth, an argument often made is that if the accused cannot trust the State with producing evidence proving the probability of their reformation, the defence counsel of the accused should be entrusted with proving the same. The current position is that the mitigating circumstances other than the possibility of reformation have to be proved by the lawyer of the accused. Unfortunately, even in high profile cases, it has been seen that the accused don’t get good lawyers who are trained to collect mitigating evidence. For instance, Afzal Guru did not only get incompetent lawyers, but also lawyers who were openly hostile to him.
Even in cases where the Court directs the defence counsel to collect mitigating evidence, the same does not yield any substantial results. During the Nirbhaya Case hearing in the Apex Court, the lawyers of the accused got access to them in the jail for two weeks to prepare affidavits with regard to the mitigating circumstances. It has been rightly argued that two weeks is too less a time to engage in a proper mitigation exercise by gathering evidence and uncovering the facts and experiences from the life of the accused. In this case, apart from being untrained in the mitigating exercise, the tight schedule meant that the defence lawyers could not gather much evidence relating to the ‘circumstances’ of the accused. Unfortunately, this resulted in the Judges not considering the mitigating evidence very seriously, holding that the evidence was “too slender to be treated as mitigating circumstances.”
These are only some of the reasons why the application of the ‘criminal test’ has been highly unjust. Before moving on, the observation made in Santosh Bariyar needs to be kept in mind. The Constitution of India requires greater fairness from sentencing courts in cases of death penalty due to the irrevocable and ‘final’ nature of the sentence.
II. Execution Impact Evidence
The SC, in Rajendra Prasad v. State of U.P, came to the conclusion that the scope of the death penalty had been narrowed down consistently. Although later overruled by Bachan Singh v. State of Punjab,  the Court indirectly upheld the ‘condensed guideline’ Number 9 of Rajendra Prasad by ruling that “the court should not confine its consideration principally or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.” This goes on to show that the Courts have encouraged individualised sentencing in order to be more flexible while appreciating the aggravating and mitigating circumstances. As argued in Part I, the way in which mitigating evidence is presented and appreciated is highly problematic. Additionally, it is argued that the seven mitigating factors laid down in Bachan Singh do not give due consideration to the ‘circumstances’ surrounding the criminal. While two of the seven need to be proved by the State, one rarely sees the usage of even the other five during the sentencing stage.
Hence, there is an urgent need to introduce EIE as one of the mitigating factors during sentencing. EIE is information presented to the sentencing authority that shows “the effect that a defendant’s execution will have on his/her loved ones.” The argument for the admissibility of EIE is that defendants should be allowed to place any relevant evidence that would mitigate their culpability. Another argument is that since a defendant is allowed to present any evidence proving good character, EIE, which is essentially evidence of character, would further help in doing so by showing the negative impact of the death sentence on the family members of the prisoner. The previous good character of the accused can be seen specifically in cases where the accused is the sole earning member of the family and his/her execution has an adverse impact on the family members. This previous good character can go on to show that the probability of rehabilitation and reformation cannot be ruled out completely. Thus, it will be important mitigating evidence for the accused.
The Court in Bariyar held that a dispassionate analysis of the aggravating and mitigating circumstances is a must to ensure fairness during the sentencing stage. As argued in Part I, courts very often ignore the mitigating evidence and attack the character of the accused to justify the death sentence. Although, this is blatantly against the Evidence Act, it becomes imperative, in the interim, for the accused to make use of Section 53 of the Indian Evidence Act to prove good character. EIE can help the accused in doing so as it not only is an effective mitigating factor but it can be understood and appreciated by the Judges easily. The utility of EIE for the accused also stems from the fact that other mitigating evidence like the accused being mentally and emotionally disturbed is often neglected by the Judges as they are not able to appreciate the same due to the lack of mental health awareness in the country.
The ‘Death Penalty India Report’ studied the impact of the death sentence on the family members of the prisoners among other things. One of the findings showed the adverse impact on the children and their education, especially when both the parents were in prison. Factors like this will enable the court to pay heed to the real ‘circumstances’ of the criminal. This will happen when EIE will be placed as mitigating evidence before the court.
Not allowing EIE would increase the arbitrariness, show inconsistency and an inherent bias against the accused during sentencing. It can be seen in several judgments dealing with the death sentence that during the sentencing phase, courts lay a lot of emphasis on aggravating factors like degree of barbarity of the act, harm caused to the victim and the society as a whole et al. Even in cases not dealing with the death sentence, courts have looked at the harm that might be caused to unrelated third parties in the future. However, they fail to look at the harm that might be caused to the family of the accused if the death sentence is given. In all landmark cases on the death penalty in India, the courts have treated aggravating and mitigating circumstances on an equal footing. Not allowing or appreciating a significant prospective mitigating factor like EIE would lead one to the conclusion that most Judges make up their mind about giving the death sentence and hence give undue attention to the aggravating factors. Allowing EIE, on the other hand, would strengthen the belief of every accused in the system, that the due process of law will be followed in their case and a reasonable chance will be given to them to prove their case.
“From this day forward, I no longer shall tinker with the machinery of death.” In India too, this machinery is in a state of disarray. The Criminal Test, one of the few safeguards against the death sentence, is being applied in an extremely problematic manner. It is observed that a SC judgment, that held that the failure of the state to prove impossibility of reform would be an important mitigating factor, should be followed in every case involving the death sentence. The use of PO’s to gather evidence to assist the court is a welcome step. However, it is essential that such assistance is given only by those PO’s who have been appointed by the court, to ensure fairness during sentencing. Finally, the introduction of EIE during the sentencing stage is crucial to strengthen the ‘criminal test’ and its application as it can prove to be an effective mitigating factor, thereby helping in balancing the scales of justice, in a criminal justice system that is heavily skewed against death row accused and convicts.
(The author is a third year student at the National Law School India University, Bangalore)
 Justice S.B. Sinha, To Kill or Not to Kill: The Unending Conundrum (2013) NLSIR (Spl. Issue) 178, 210.
The Code of Criminal Procedure, 1973, §235(2),§354(3).
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.(This position has been reiterated in Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498 (Supreme Court of India).
Sunder @ Sundararajan v. State by Inspector of Police, (2013) 3 SCC 215.
Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.
Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401. See also Bablu v. State of Rajasthan, (2006) 13 SCC 116(The Apex Court in this case held that, “The acts were not only brutal but also inhuman with no remorse for the same.”)
Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288.
id., 132 (per Katju J.).
Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148.”
Ratanlal & Dhirajlal, The Law of Evidence 988(V.R. Manohar, 24thed., 2011).
Birju v. State of Madhya Pradesh, (2014) 3 SCC 421; Anil v. State of Maharashtra, (2014) 4 SCC 69.
State v. Bharat Singh, MANU/DE/0920/2014; Mithlesh Kumar Kushwaha v. State, MANU/DE/2777/2015; Probation of Offenders Act, 1958, §14(a).
Mithlesh Kumar Kushwaha v. State, MANU/DE/2777/2015.
The Probation of Offenders Act, §13(1)(a).
 Mithlesh Kumar Kushwaha v. State, MANU/DE/2777/2015.
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Mukesh & Ors. v. State for NCT of Delhi, (2017) 3 SCALE 356.
Rahil Chatterjee and Sahana Manjesh, Guilty, What Next? How Courts Decide Between Life Imprisonment and Capital Punishment, The Wire, May 17, 2017, available at https://thewire.in/law/guilty-what-next-how-courts-decide-between-life-imprisonment-and-capital-punishment (Last visited on October 7, 2018).
Mukesh v. State for NCT of Delhi, (2017) 6 SCC 1.
Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646 (Supreme Court of India).
Kunal Ambasta, An Unclear Empiricism: A Review of the Death Penalty India Report (2017) 13(2) Socio-Legal Review 130, 136.
 Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443 ( The focus on the ‘circumstances’ explained)..
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
Wayne A. Logan, When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials (1999) 33 U. Mich. J.L. Reform 1, 5, available at https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1199&context=articles (Last visited on October 3, 2018).
Jalem Peguero, On Mitigation: The Role of Execution Impact Evidence (2014) 16(1) Berkeley Journal of African-American Law and Policy 65, 65, available at https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=1132&context=bjalp (Last visited on October 7, 2018).
Darcy F. Katzin, The Relevance of Execution Impact Testimony as Evidence of Capital Defendant’s Character (1998) 67(3) Fordham Law Review 1193, 1213, available at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3529&context=flr (Last visited on October 5, 2018).
Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
Amnesty International India, Lethal Lottery: The Death Penalty in India A Study of the Supreme Court judgments in Death Penalty Cases 1950-2006 (2008) 57.
Centre on the Death Penalty, The Death Penalty India Report (National Law University, Delhi Press 2016)130. ”
LOGAN, supra note 23, 51.
Callins v. Collins, 510 U.S. 1141 (1994) (per Blackmun J.).
Rajesh Kumar v. State, (2011) 13 SCC 706.
The Probation of Offenders Act 1958, §13(1)(c).