On 31st October, the High Court of Delhi – writing through Justice Muralidhar – decided a death penalty reference that can have (potentially) significant consequences for the future of capital punishment. The appellant had been convicted for the rape and murder of a three-year old child, and been sentenced to death by the trial court. On 17th April, 2014, the High Court affirmed the conviction. With respect to the award of the death penalty, the Court rejected the notorious “balancing test” of Machi Singh (which was contrary to precedent and has been questioned by the Supreme Court subsequently), and held that one important aspect to consider was the possibility of reform and rehabilitation for the criminal.
So far so good. Until now, however, this assessment – of whether or not the convict could be reformed/rehabilitated – was being taken by judges. Reading death penalty cases, it becomes evident that this assessment would rarely be based on objective factors. In most circumstances, it would be a snap judgment, depending upon the judge’s intuitions about the gravity or severity of the crime, whether or not the convict had exhibited remorse, and a number of other factors of this sort. The problems with this approach had already been acknowledged by the Supreme Court before. In Anil vs State of Maharashtra, a 2014 judgment, the Court had noted:
“… the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials.”
Focusing upon this, in its 17th April order, the Court directed the government to assign a probation officer (PO), with the task of preparing a report, devoted to the following two questions:
“(i) Is there a probability that, in the future, the accused would commit
criminal acts of violence as would constitute a continuing threat to society?
(ii) Is there a probability that the accused can be reformed and rehabilitated?”
For the purposes of greater objectivity, the Court laid down three further guidelines that the PO would take into account:
“(a) enquire from the jail authorities and seek a report as to the conduct of the accused while in jail.
(b) meet the family of the accused and local people [to] seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.
(c) seek specific inputs from two professionals with not less than ten years’ experience from the fields of Clinical Psychology and Sociology.”
Following the directions of the Court, the report was prepared, “based on a personal interview with the Appellant in Tihar Jail, Delhi, interviews with his family members and neighbours in his native place in Siwan, Bihar, the report of the local panchayat and a report from the Police Station (PS) Basatpur. The SIR also incorporates inputs of the Clinical Psychologist, Psychiatric Social Worker and Superintendent of Jail, Tihar as well as the assessment by the Medical Board of the Institute of Human Behaviour and Allied Sciences („IHBAS‟).”
It was found that, for the most part, the report was positive. Even though the convict had exhibited no outward signs of repentance, the PO report noted that, based on its findings as a whole, repentance “needs to be developed through reformative and corrective services and it will take a long process for reformation and reintegration into the society.” This was affirmed by the medical report, according to which “there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures.” Accordingly, the sentence of death was commuted to one of life imprisonment.
There is a shift, therefore, from a situation in which the potential for reformation and rehabilitation is judged from the perspective of two or three judges, with their individual biases, to one in which a whole host of stakeholders, who have had an intimate connection with the convict, are brought into the equation, with the requirement of consulting medical panels adding an extra layer of objectivity to the enquiry. A positive reference from any one or more of those bodies would create enough of a doubt in the Court’s mind to – following Santosh Kumar Bariyar’s “principle of prudence” – refrain from confirming the death penalty.
In the long road towards abolition, this is perhaps one small – yet hugely significant – step.