The Court essentially pointed to the hiatus between the trial and their appeals being heard at the High Court to state that the conduct of the accused in custody should have been taken into account as a mitigating circumstance.
Discussing a plethora of precedents and Law Commission reports over the years, the Bench expressed its anguish at the fact that the test in Bachan Singh was not being consistently applied.
“However, despite over four decades since Bachan Singh there has been little to no policy-driven change, towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected, for the court’s consideration. Scarce information about the accused at the time of sentencing, severely disadvantages the process of considering mitigating circumstances. It is clarified that mere mention of these circumstances by counsel, serve no purpose – rather, they must be connected to the possibility of reformation and assist principled judicial reasoning (as required under S. 235(2) CrPC).“
Good conduct on the part of the convicts while in prison along with psychiatric evaluations are necessary indicators for considering mitigating circumstances in death penalty cases, it was underscored. Noting the lack of information on the collection of mitigating circumstances the Bench noted,
“The lack of forthcoming information has led to attempts by the courts, to look backwards – sometimes many years after the crime has been committed – to evaluate on the one hand, circumstances that could not have been paused in time, and on the other those which can be captured, but for which there exists no frame of reference from the past, for comparison. This inconsistency in some courts calling for reports, while others fail to – further contributes to our patchwork jurisprudence on capital sentencing, and in turn undermines the equality principle and due process protection…in favour of death row convicts.“
Stressing on the importance of possibility of reformation of all prisoners, the Bench noted that a concrete framework to measure and evaluate the same is currently missing.
“Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general, to be a space of limited potential for systemic reformation. The goal of reformative punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making“.
Source: Barandbench
