What Is Mitigation Investigation For Death Row Convicts?

The Kerala High Court has directed that a ¡°mitigation investigation¡± be conducted while considering the death sentence references of two convicts, Nino Mathew and Muhammed Ameer-ul-Islam. A mitigation investigation in death penalty cases involves the consideration of mitigating circumstances or factors that can encourage the judge to be more lenient with sentencing.

A Bench of Justices Alexander Thomas and C Jayachandran directed the state authority concerned to file a report with relevant details of the two convicts, such as their age, family background, socio-economic background, criminal antecedents, employment history, and psychological history. Adding that this report would be referred to before confirming the accused(s) capital punishment, the court made it clear that ¡°the reports shall be filed by the prosecution before this Court in a sealed cover¡±, which will not be perused by the judges ¡°till the issue of conviction is decided in these appeals.¡±

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What Did The Kerala High Court Order?

In its order dated May 11, the Kerala High Court directed the Director General of Prisons to place on record reports from the jail authority concerning the convict¡¯s ¡°conduct, nature of works done by them in the jail concerned¡±.

Additionally, the court appointed CP Sruthy and Nooriya Ansari, both associated with Project 39A of the National Law University, Delhi, to make an independent assessment regarding matters relevant to the case while asking them to submit a report before it ¡°preferably within 2 months¡±. For this, the court allowed them to visit the convicts in prison and conduct interviews. The court also clarified that Project 39A¡¯s services will be pro bono, or free of cost, and that their services have been ¡°frequently availed by the Apex Court¡± as well. The court also left it open for the state to conduct its own mitigation investigation.

Directing the mitigation investigation to commence before it began hearing the convicts¡¯ appeals against the Sessions Court orders, the Court reasoned that ¡°there is no legal bar in the High Court, at the appellate stage, to commence mitigation study efforts, even before the commencement of the hearing process on the issue of conviction¡±. Reasoning that this would help in avoiding an unduly protracted hearing, the court also expressed concerns that if mitigation efforts are undertaken only after the conviction is over, there could be allegations of delay and possible deprivation of the convicts¡¯ ¡°effective and meaningful opportunity of hearing¡±.

What Are Nino And Muhammad Convicted Of?

Nino Mathew is a convict in the Attingal twin murder case, where a software engineer was arrested on charges of conspiring with her alleged lover (Nino) to get him to murder her four-year-old daughter and mother-in-law in Thiruvananthapuram. Additionally, the engineer¡¯s husband was also grievously injured.

Meanwhile, migrant worker Muhammed¡¯s death conviction was in a 2016 rape and murder case of a 29-year-old Dalit law student.

How Were The Amicus Reports Filed?

On December 15, last year, a Kerala HC Bench of Justices Alexander Thomas and Sophy Thomas appointed advocates Mitha Sudhindran and Saipooja as amicus curiae and sought their assistance in the mitigation investigation. The court¡¯s decision to seek the assistance of amicus curiae stemmed from a submission made by one of the Nino Mathew¡¯s counsel, advocate Sri. Sasthamangalam S. Ajithkumar.

During the hearing, Ajithkumar submitted that ¡°in view of various later rulings of the Apex Court, the process of mitigation investigation may have been conducted by this Court to assess and evaluate the aggravating circumstances and the mitigating circumstances¡± for finally determining the issues in the Death Sentence Reference, etc.

After this, on December 22, 2022, the same Bench passed another order where the amici¡¯s submissions were highlighted, stating that ¡°the matter of mitigation investigation in the death sentencing process is a duly developing area, which is in its infancy stage in India¡±.

Informing that ¡°Project 39A, attached to the National Law University, Delhi, is a pioneering agency in the area of mitigation investigation¡± which deals with various aspects of death penalty laws, the amici suggested availing the services of the said expert agency for ¡°effective conduct of mitigation investigation¡±.

In light of this, the court asked the amici curiae to apprise it about the ¡°feasibility¡± of investigating through Project 39A, at what stage the investigation would commence and be completed, and whether it would happen now or after hearing the appeal on its merits. On the aspect of case law that the court could use, it directed the amici to submit the same and to seek the assistance of the director of Project 39A on the practice of mitigation in various High Courts.

Last year, while observing that a ¡°uniform approach¡± is needed for ¡°granting real and meaningful opportunity¡± to convicts on death row, and noting ¡°a clear conflict of opinions¡± between some of its earlier decisions in such cases, the Supreme Court referred the matter to a five-judge Constitution bench.

What Has The SC Said On Mitigation Investigations?

In September 2022, a Bench of the then Chief Justice of India UU Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia recalled earlier SC rulings on the issue of death sentences and said: ¡°The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing¡±.

¡°What is conspicuously absent is consideration and contemplation about the time this may require. In cases where it was felt that real and effective hearing may not have been given (on account of same-day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material and thus fulfilling the mandate of Section 235(2),¡± said the Bench.

The Bench, however, pointed out that its 1980 ruling in the ¡°Bachan Singh vs. State of Punjab case,¡± where it upheld the constitutional validity of the death penalty for murder while restricting it to the rarest of rare cases, requires consideration and clarity as the court had not addressed the question of what constitutes sufficient time at the trial court stage.

Section 235(2) of the Criminal Procedure Code says that ¡°if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 (order to release on probation of good conduct or after admonition), hear the accused on the question of sentence, and then pass sentence on him according to law¡±.

In 2022, the SC in ¡°Mohd Firoz vs. State of Madhya Pradesh¡± reduced the death sentence awarded to a man for raping a seven-year-old girl to life imprisonment after taking on record the report of a mitigation investigator.

Following this, the top court registered the suo motu petition titled ¡°In re-framing guidelines regarding potential mitigating circumstances to be considered while imposing death sentences¡± to streamline the process of considering mitigating circumstances in such matters. However, the five-judge Bench verdict on this plea remains awaited.