Chances of Reform as a Mitigating Factor in Death Penalty Cases in India: Issues and Challenges

Abstract

Chances of reform or rehabilitation of the accused is one of the important mitigating circumstances in criminal sentencing. In Bachan Singh v State of Punjab (AIR 1980 SC), the Supreme Court upheld the constitutionality of death penalty in India. However, the Court restricted it to Rarest of Rare cases. The Court said that a balance sheet of aggravating and mitigating circumstances is to be prepared and due regard must be given to the chances of reform/rehabilitation as a mitigating circumstance. This paper revolves around the central theme of chances of reform as a mitigating circumstance in death penalty cases and the procedures followed by the Courts to determine the same. Since the Bachan Singh judgment, it has been noticed in several cases on death penalty that the Supreme Court has either accepted or rejected the chances of reform without conducting any due inquiry on the reformative potential of the convict. This raises a serious question on the fairness of procedure under Articles 14 and 21 of the Constitution as these two Articles also applies at the stage of sentencing. However, in some of the recent judgments of the Supreme Court and of the Delhi High Court, as a course correction exercise, some guidelines and procedures have been laid down to determine the chances of reform as a mitigating circumstance. The Courts have admitted that the task of determination of reform has not attracted serious attention of the sentencing courts in the past. Under the procedures evolved, the responsibility has been entrusted upon the Probation Officer under Probation of Offenders Act, 1958 to determine the same. This is a welcome step in the judicial administration of death penalty in India.