The decision of the Supreme Court to set up a Constitution Bench to lay down guidelines for the courts on providing a convict a real and meaningful hearing before deciding on a death penalty is a refreshing step that will further civilise the criminal justice delivery system in our country.
The only protection a person can have against incarceration or death penalty in India is Article 21 of the Constitution which insists that "no person shall be deprived of his life or personal liberty except according to procedure by law". There is very little explanation of the umbrella provision in the Constitution or in the law. The only guideline as of now is a 1980 judgment of the Supreme Court which mandates that a person should be given the death penalty only in rarest of rare cases; even if it left the term undefined.
The Supreme Court has found there are flaws in the "procedure by law" while deciding on depriving a person of his life. While the courts will hear and record the aggravating circumstances of a case, which could force a court to resort to a punishment which, once, implemented, cannot be revoked, they have very little legal compulsion to investigate the mitigating circumstances or allow the convict to present his case in a meaningful manner.
In a rare gesture in which it sees the entire episode from the point of view of an accused, a Supreme Court bench, headed by Chief Justice of India U.U. Lalit, has suggested that this places the convict "at a hopeless disadvantage, tilting the scales heavily against him". Hence, the court held, it is imperative to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the convict on the issue of sentence.
Different benches of the court have opined differently on the subject and hence the decision to let a five-member Constitution Bench to give finality to the vexed issue. There must be "valuable safeguards" while deciding on death sentence in the rarest of rare cases, the court ruled.
A democracy has the duty not only to punish wrongdoers but also to ensure that the mechanism for it is flawless to the extent possible. Constant revision of laws and procedures is an essential part of the process, which must take into account new information and knowledge about the criminal justice system, especially in the award of capital punishment.
The processes of democracy are inevitably slow; but they are mostly sustainable. Several countries across the world have taken the death sentence off their law books; India has not reached that stage. Nevertheless, one must hope that the Supreme Court bench will review the process thoroughly and come up with a better one. It will hopefully make it more humane if just to convince the recipient of the punishment that the judicial system has explored every option before deciding on it. The conviction of the accused, too, is an important criterion that must be met by the judicial process in a democracy.