This is the second part of a three-part series on death penalty. Click here to read part one.
On 19 September this year, a three-judge bench of the Supreme Court referred the question of what constitutes a “meaningful, real, and effective” hearing for an accused when it comes to death penalty sentencing, to a five-judge constitution bench.
The referral indicates the apex court's acknowledgement of the "helpless disadvantage" placed on the convict in the present manner of sentencing carried out by trial courts. A perusal of existing statistics and case studies indicates that these violations result in the bypassing of:
Possibility of the convict's reformation
Presentation of mitigating circumstances that might help the convict's case
Meanwhile, India in 2021 saw the highest number of prisoners on death row at the end of the year since 2016 at 488, an increase of nearly 21 percent from 2020, as per a report by Project 39A, a criminal reforms advocacy group.
As per the Prison Statistics of India reports released by the National Crime Records Bureau, this is the highest the death row population has been since 2004, when it was 563.
So why are hundreds of persons languishing for years on the death row? How do trial courts violate sentencing guidelines? And how did we reach here?
THE FREQUENCY WITH WHICH TRIAL COURTS PRONOUNCE THE DEATH SENTENCE
Barring in 2020, when our courts was grappling with COVID-19 and the subsequent lockdown, over a hundred persons have been awarded the death penalty every year since 2016.
2021: 144 death sentences
2020: 78 death sentences
2019: 104 death sentences
2018: 163 death sentences
2017: 110 death sentences
2016: 153 death sentences
The state of Uttar Pradesh tops the list in terms of maximum death sentences pronounced.
In Gujarat, till August this year, trial courts sentenced 50 people to death. This included 38 convicts who were awarded the death sentence in February in the 2008 Ahmedabad serial blast case.
However, it is not just the frequency with which death penalties are awarded each year that is alarming; but it is the fact, that only a minute percentage of these sentences are actually confirmed by appellate courts. This means that hundreds of people waste years of their lives in fear of imminent death by hanging, only to be subsequently spared the gallows.
Project 39A’s ‘Death Penalty India Report 2016’ found that of over 1700 prisoners who were sentenced to death by trial courts in the period 2000-2015, the appellate courts ultimately confirmed (upheld) only 4.9 percent of the sentences.
Last month, in an observation indicating that trial courts violate guidelines under influence of the nature of the crime, the Supreme Court (in Nandlal Bharti v State of UP) said, "a court cannot make someone, a victim of injustice, compensate for the injustice to the victim of a crime."
A BRIEF HISTORY
Though the death penalty existed in India much before we became independent, it was only in 1973, after the Code of Criminal Procedure (CrPC) was re-enacted, that the death penalty ceased to be a norm and was made an exception.
Two crucial sections were introduced in this year:
Section 354(3) – which mandated that the judge must provide 'special reasons' for inflicting or imposing the death sentence.
Section 235(2) – which separated the conviction and sentencing hearings. This allowed for a careful evaluation and analysis of circumstances revolving around the death sentence.
It was in 1980 that the constitutional validity of the death penalty was upheld by the Supreme Court in the case of Bachan Singh v State of Punjab. Further, the apex court also laid down guidelines pertaining to the pronouncement of the death sentence.
It was challenged in this case that the death penalty is unnecessary, cruel, and inhumane, and did not serve the purpose of deterrence. Further, the imposition of capital punishment was argued to be whimsical and arbitrary.
Now, though the Supreme Court did not accept these arguments, it did put forward the doctrine of ‘rarest of rare’, stating that the death penalty should only be imposed “in the rarest of rare cases” when the alternative option of life imprisonment and of the criminal’s “reformation” is “unquestionably foreclosed."
Notably, the judgment also said that court must pay due regard to the crime (aggravating circumstances) and the criminal (mitigating circumstances) before the special reasons are stated.
THE CONSEQUENCE OF NONPRESENTATION OF MITIGARTING CIRCUMSTANCES
Neetika Vishwanath, a lawyer and part of the Project 39A team, told The Quint:
“Aggravating circumstances are those that increase the culpability of the convict and mitigating circumstances reduce it. Circumstances of the convict like their criminal history can also be an aggravating circumstance. However, mitigating circumstances mainly pertain to the life history of the convict like their social, economic and educational background, age, and mental health. The purpose of mitigating circumstances is for the court to understand the person they are to sentence.”
She added, “While aggravating circumstances are easily available to the court because of the access to the case records, mitigating circumstances require time and resources from the defence team.”
“Bringing mitigating circumstances before a court requires a good legal team as well as resources, which is often not the case for persons sentenced to death. Project 39A's 2020 study of death penalty sentencing in trial courts of three states over a 16 year period found that defence lawyers made a perfunctory mention of some circumstances of the convict like their age and family background without any detailed presentation of their life before the court. Besides, judges did not even mention mitigating circumstances, let alone consider, in 83 percent cases when sentencing people to death."Neetika Vishwanath, lawyer and part of the Project 39A team.
With these statistics in mind, one may wonder if trial courts in India are even capable of delivering death sentences? Further, do we compensate those who lose years and years waiting to be hanged?
COLLECTIVE CONSCIENCE TAKES PRECEDENCE
Formerly, capital punishment operated on the theory of retributive justice – that is punishment by the law in proportion to the offence committed.
However, in 1979, the Supreme Court (Rajendra Prasad vs State Of Uttar Pradesh) moved away from retributive justice, and instead emphasised on deterrence (attempt to inspire fear in future criminals) and reformative theory (to reform the criminal) as the social goals.
"The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal penacea," the Supreme Court had said.
However, three years later, a three-judge bench in Machhi Singh v State of Punjab (1983) made public opinion relevant to capital sentencing by stating that the death penalty might be deserved in cases where the conscience of the society is so shocked as to warrant the imposition of the death penalty.
The top court noted, "It (community) may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty."
Decades later, public opinion seems to have gained more weightage than other circumstances in death penalty cases.
72 percent of all cases in which Delhi's trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor, a study by Project 39A, a criminal reforms advocacy group, has found.
This was also true of 42 percent of cases in Madhya Pradesh and 51 percent of cases in Maharashtra during the same period, according to the study.
Subsequently, satisfying the collective conscience and society’s cry for justice have been used frequently by the Supreme Court to impose the death penalty.
Despite frequent usage, this approach has been critiqued by the Supreme Court itself in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, for want of clarity around the meaning of ‘public conscience’ and the counter-majoritarian role of courts.
On being asked if India should abolish the death penalty, Vishwanath said:
“I think what we need to ask is if our legal system is capable of administering a serious and irreversible punishment like the death penalty. The answer is no. Wrongful convictions are a well-documented reality. It is not unknown for the Supreme Court to acquit persons who had originally been sentenced to death by a lower court.”
She further noted, “The law guiding the judges to decide between who will be sentenced to death and who will be spared is fuzzy, allowing people to be sentenced to death arbitrarily and in an unlawful manner.”
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