India’s capital punishment regime is in crisis, an issue acknowledged by the country’s Supreme Court. But the incremental changes it is making sit at odds with the reality of death penalty sentencing in the country’s trial courts, and the attitudes of the government.
Upon the return of physical hearings in August 2021 (following a pause due to the pandemic), the Supreme Court published a list of 40 appeals from death row prisoners to be heard as a matter of priority. The judges hearing the matters have expressed serious reservations about the sentencing exercises of the lower courts that doled out the initial death sentences. At the heart of the concerns is the deviation from the process laid down in previous judgments. In May 1980, India’s five-judge bench of the Supreme Court upheld the constitutional validity of capital punishment but stressed there were conditions on when it should be deployed: only after judges took into account aggravating and mitigatng factors about the crime and the accused. In the four decades since, it appears this judicial framework has collapsed. A big part of that collapse has been the sole focus on crime-related aggravating factors by sentencing judges. In sentencing people to death, insufficient attention has been paid to ensuring that mitigating factors about the accused are presented before the court.
This failure has deep connections to the inequality of the death penalty. Nearly 76 percent of India’s 385 death row prisoners (as it was in 2014) are poor and receive limited access to legal representation. Establishing mitigating factors takes time and resources and requires expertise in different fields like mental health, social work and anthropology. Because India’s death row prisoners most often come from the poorest and most marginalised sections of the community, it is rare that mitigatory information about them ever comes before a sentencing judge. And courts have not safeguarded fairness in the sentencing process by insisting such material be presented in court. The Supreme Court is trying to address this deep structural problem. Led by the incoming Chief Justice of India UU Lalit, the bench has been at the forefront of this reform effort. The bench, composed of Justices Lalit and Ravindra Bhat with an often-changing third judge, has insisted that mitigation material be collected and presented before them through prison reports, psychological reports, and mitigation investigator reports.
But they are intervening at the last stage. Before cases reach them, the defendant has gone through the trial court and High Court — both of which have approved of a death sentence. But what most concerns the Supreme Court is the scant mitigatory material that has been gathered and put before them until their insistence.
In their reform effort, the Supreme Court has heard arguments in a case that will help lay down guidelines on how information regarding mitigating factors are collected and presented at the trial and appellate stages. Previously, inconsistency has plagued judgements in the Supreme Court. The current effort aims to clarify and lay down a clear law on the essential requirements of a fair death penalty sentencing hearing. Over the last decade, the Supreme Court has set aside the death sentence in 80 percent of the 136 cases (either by acquittal or commutation) it has been called upon to adjudicate. However, their scepticism about the use of the death penalty has not percolated to India’s trial courts. There continues to be an exaggerated and rising use of capital punishment, with 729 people being sentenced to death between 2016 and 2021. And while less than five percent of death sentences issued in the trial courts are upheld by the end of the appeals process, hundreds are being left on death row unnecessarily for long periods. Part of what seems to be driving the expanded use of the death sentences in lower courts is the changing nature of offences that attract the punishment. The proportion of death sentences being imposed by trial courts in cases involving sexual offences (as compared to intentional murder) has been rising, reflecting a changing attitude from the executive and legislature. The 2012 Delhi gang rape case appears to have been a turning point: while the Justice Verma Committee formed in the aftermath to look at rape law reform did not recommend implementing the death penalty for the crime, India’s penal code has since been amended to allow the death penalty for two sexual offences (rape resulting in a permanent vegetative state, and the repeat offence of rape). And, following the protests that followed a January 2018 gangrape of a child, the penal code was amended to allow the death penalty in rape cases where the victim is a female below 12-years-old. More and more, the remit of the death penalty has expanded. In 2019, India’s child protection laws were altered to introduce the death penalty for “aggravated penetrative sexual assault”. At the state level, there have been legislative attempts in Maharashtra and Andhra Pradesh to punish non-homicide rape against adult women with death. India is at the stage where capital punishment is a possibility in cases involving a range of sexual offences and trial courts are following suit by imposing more death sentences, and doing so more quickly. This trend has gathered steam over the last decade, despite a broad spectrum of women’s rights groups telling the Justice Verma Committee in 2012 that the death penalty cannot be the answer to sexual violence. However, for governments feeling pressure to deliver a strong responses to sexual violence, the death penalty is a convenient tool — even if it is not a meaningful solution.
The Supreme Court has been forced to confront the reality of India’s criminal system: it is one thing to provide for it in the law and quite another to have a legal system that can administer it with a modicum of fairness. It has long been evident that dispensation of the death penalty is subjective, arbitrary and judge-specific in India. As the burden of the death penalty rises in India’s legal system on the back of its expansion, the Supreme Court is now engaged in an attempt to reform sentencing hearings in capital cases.
However, the Supreme Court’s track record on the death penalty is rather poor. The court’s own judgments and the Law Commission of India have acknowledged that their death penalty jurisprudence is in disarray. It seems tempting for the Supreme Court to reform the death penalty rather than get into a judicial conversation on abolition. Judges often feel that the unfairness and injustices of death penalty administration can be corrected and reformed. Justice Harry Blackmun started a as a judge of the US Supreme Court in June 1970 as someone who believed in the death penalty and made repeated attempts to reform different aspects of its administration from the bench. 24 years later, as he neared the end of his time on the court, he recognized the futility of it and declared that he would “no longer tinker with the machinery of death”. For now, India’s Supreme Court seems content with tinkering.
(Anup Surendranath is a Professor of Law and Executive Director of Project 39A at National Law University, Delhi)