In Pursuit of Equilibrium

The submission of death sentences for confirmation under the Bharatiya Nagarik Suraksha Sanhita, 2023, represents a pivotal safeguard in the judicial process, ensuring that the most severe penalty is administered only after meticulous review and scrutiny. This legislative framework mandates that any death sentence passed by a Court of Session be promptly forwarded to the High Court, thereby initiating a secondary layer of judicial evaluation. Through this rigorous process, the BNSS aims to uphold the principles of justice and due process, allowing for further inquiry, evidence assessment, and appellate review before any sentence is executed. In doing so, the law seeks to balance the interests of state authority with the fundamental rights of the individual, reinforcing the judiciary’s commitment to fairness and the rule of law in capital cases.

What happens immediately after the Court of Session passes a sentence of death?

As soon as the Court of Session passes a sentence of death, the entire set of proceedings is required to be immediately submitted to the High Court. This submission is mandatory and must occur without delay. Additionally, it is crucial to note that the death sentence cannot be executed at any point unless the High Court confirms it.

What must the Court of Session do in relation to the custody of the convicted person once a death sentence is passed?

Upon passing a sentence of death, the Court of Session must ensure that the convicted person is placed in jail custody. This is achieved by committing the person to custody under a warrant. This step is essential for maintaining the status of the accused while the case awaits further review and confirmation by the High Court.

What authority does the High Court have regarding further inquiry or the collection of additional evidence once the proceedings are submitted?

The High Court holds the power to assess the evidence and proceedings submitted by the Court of Session. If the High Court believes that there is a need for further inquiry or that additional evidence should be taken on any matter related to the guilt or innocence of the convicted person, it can act in one of two ways:

• The High Court may itself undertake the further inquiry or collect the additional evidence.
• Alternatively, the High Court may direct the Court of Session to conduct the inquiry or take the necessary evidence. This power ensures that the High Court can thoroughly evaluate the case before confirming the sentence.

Is the physical presence of the convicted person required during the additional inquiry or evidence collection?

Generally, the presence of the convicted person is not required when further inquiries are made or when additional evidence is collected. The High Court has the discretion to dispense with the presence of the accused unless it specifically directs otherwise. This provision helps streamline the process and avoid unnecessary delays, unless the presence of the convicted person is deemed essential for clarifying issues.

What must be done with the results of any inquiry or additional evidence if it is not conducted directly by the High Court?

If the High Court directs the inquiry or the collection of additional evidence to be carried out by the Court of Session (or any other designated body), then the results of that inquiry or the evidence obtained must be formally certified to the High Court. This certification serves as an official record that the necessary further investigation has been completed, and it allows the High Court to take that evidence into account when making its final decision.

What options does the High Court have when reviewing a death sentence that has been submitted to it?

Upon review, the High Court has several distinct options:

• The High Court may simply confirm the death sentence passed by the Court of Session if it finds the sentence to be appropriate.
• The High Court can also pass any other sentence that is permitted or warranted by law, thus replacing the death sentence.
• The High Court has the power to annul (or cancel) the conviction. In doing so, it may either convict the accused of any offence that the Court of Session had the power to convict him for, or order a new trial on the same charge or on an amended charge, effectively restarting the trial process.
• The High Court may decide to acquit the accused, thereby declaring him not guilty. This range of options provides the High Court with the flexibility to ensure that justice is properly administered based on the merits of the case.

Under what condition can the High Court exercise its power to confirm, modify, or annul a death sentence?

The High Court must wait to exercise its power until after the time period allowed for the accused to file an appeal has expired. Moreover, if an appeal is filed within that designated period, the High Court must wait until that appeal has been fully disposed of before making any order regarding the sentence. This requirement ensures that the right to appeal is preserved and that the High Court’s decision does not interfere with the appellate process.

When the High Court consists of two or more judges, what is the required procedure for confirming the sentence or issuing any new order?

In situations where the High Court is composed of two or more judges, the confirmation of the death sentence or any new sentence or order passed by the High Court must be made, passed, and signed by at least two of the judges. This requirement is in place to ensure that such significant decisions are not made unilaterally and that there is a level of collegiality and consensus among the judges.

What should be done if the bench of judges in the High Court is equally divided in their opinions on a case?

In the event that the bench of judges is equally divided in opinion on the matter, the decision on the case shall be made in accordance with the procedure laid down in BNSS. The BNSS provides the mechanism to resolve deadlocks in judgment, ensuring that the case can still be decided despite an evenly split panel.

How is the final decision communicated from the High Court back to the Court of Session?

After the High Court has rendered its decision, whether that be a confirmation of the death sentence, a new sentence, or any other order, the proper officer of the High Court must send a copy of the order to the Court of Session without delay. This transmission of the order can be done either physically (by paper) or electronically. The copy of the order must bear the seal of the High Court and be attested with the official signature of the designated officer. This process ensures that there is a formal and authenticated communication of the High Court’s decision back to the Court of Session.

Therefore, the provisions outlined under the Bharatiya Nagarik Suraksha Sanhita, 2023, for the submission and confirmation of death sentences serve as a critical checkpoint within the criminal justice system. By requiring a comprehensive review by the High Court, the process minimizes the risk of irreversible errors and ensures that every death sentence is subjected to rigorous judicial scrutiny. This mechanism not only reinforces the integrity of legal proceedings but also embodies the judiciary’s dedication to safeguarding human rights even in the gravest of cases. Ultimately, the statutory mandate reinforces a balanced approach to capital punishment, emphasising both the need for justice and the importance of protecting the rights of every citizen.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.