Krishnadas Rajagopal NEW DELHI April 10, 2022

‘Mitigating investigators’ could offer judges a more complete picture of the prisoner’s life experiences

A man condemned to death for the brutal gangrape of a seven-year-old girl in Madhya Pradesh has turned the spotlight on a question that has haunted trial judges — do they really know the person they send to the gallows?

For decades, sentencing hearings have covered only basic details like the convict’s immediate family structure, educational qualifications and work before arrest. No effort was made to consider information pivotal for mitigation like adverse childhood experiences, multigenerational history of physical and mental health issues, exposure to traumatic events and other familial, social and cultural factors crucial to undertaking an individualised sentencing enquiry.

In the present case of Irfan @ Bhay Mevati, the trial court sentenced him to death just hours after it found him guilty of the gangrape in 2018. It was a case in which death penalty was awarded though the child did not die. The Madhya Pradesh High Court, when the case came up in appeal, reasoned that death penalty was an effective deterrent in view of the alarming rise in sexual abuse of children.

However, an apex court Bench led by Justice U.U. Lalit has taken on record extensive investigation undertaken by C.P. Shruthi, a ‘Mitigation Investigator’ at Project 39A of the National Law University. Ms. Shruthi’s interviews with a range of people from Irfan’s past — from his school teachers, friends and family members — revealed his early exposure to dire poverty, structural exclusion and work in an adult environment at a very young age. Her investigation also brought to light the fact that Irfan had witnessed “multiple traumatic events in the immediate family and the community”.

These details, which were not examined by the trial judge before sentencing Irfan to death for his crime, have led the Supreme Court to consider the role of mitigating investigators, who are professionals qualified in social work, sociology, anthropology, criminology, psychology and other social sciences, in uncovering mitigating circumstances which would help courts determine the punishment. The court has sought the assistance of Attorney General K.K. Venugopal and appointed senior advocate Siddharth Dave and advocate K. Parameshwar as amici in the case.

“Every circumstance which has the potential of being a mitigating circumstance, while considering whether death sentence be imposed or not, must necessarily be considered by the court,” Justice Lalit, heading a three-judge Bench, noted in the order.

Though death is seen as a fit punishment in only the rarest of the rare cases, even in these cases the courts should be well-informed about the person they are considering sending to their deaths.

‘Unhindered access’

Highlighting the vital part a mitigation investigator could play in the cause of fair justice, the Bench observed that if a competent person was given unhindered access to interview an accused facing death penalty, even at the beginning of the trial, a “comprehensive analysis can then be projected at a stage when the matter is considered from the standpoint whether death sentence be imposed or not”.

In fact, Irfan’s lawyer, advocate Irshad Hanif, had approached the Supreme Court after the Central Jail authorities in Ujjain refused Ms. Shruthi permission to interview Irfan, saying only “legal advisors” were allowed to meet condemned prisoners. The apex court ordered the prison officials to allow her to talk to the condemned man away from their earshot.

“While the State has unhindered access to the accused within their custody, effective and meaningful access for the defence to collect mitigation material by meeting their client is restricted by the State,” advocate Hanif argued.

In a separate note to the Supreme Court, Mr. Hanif wrote that mitigatory factors were not meant to justify the offence. Instead they draw a complete picture of the prisoner, which are not limited to pre-natal details, formative years, developmental history, educational history, occupational history, trauma, access to nutrition, shelter, care, inter-generational history of physical and mental health, etc. It would also encompass the prisoner’s conduct in jail, appreciation of the wrongfulness of his act, cognition, emotional and psychological state.

He referred to the Supreme Court’s judgment in the Bachan Singh case that courts should not only consider the particular crime, but also the circumstances of the criminal.

The court has listed the case on April 22.

courtesy The Hindu