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Are courts awarding too many death sentences? 539 convicts on death row in 2022, highest in 17 yrs

A look at judgments shows that trial courts often award death penalty without adhering to SC guidelines & precedents, and that 'rarest of rate' criterion is inconsistently understood.

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New Delhi: One hundred and sixty-five death sentences, the most in a single year since 2000 — the year 2022 saw capital punishment exact a heavy toll in India. Moreover, the number of prisoners on death row, at 539, was the highest in 17 years.

Several crimes in India provide for the death penalty as a punishment, with life imprisonment as an alternative — allowing trial court judges to make the decision. The Supreme Court upheld the constitutional validity of the death sentence in its landmark Bachan Singh judgment in 1989, but on the condition that it could be imposed only in the “rarest of rare” cases.

However, what exactly does “rarest of rare” mean, and are trial court judges awarding the death penalty only in such cases?

A study of death sentences imposed by trial courts between 2000 and 2015 by Project 39A — the National Law University (NLU) Delhi’s criminal justice programme — published in 2016 showed that less than 5 per cent of these were confirmed by appellate courts, and around 30 per cent ended in acquittals on appeal.

A look at trial court judgments on the death penalty and data related to these judgments shows that the sentence is often awarded without adhering to the Supreme Court’s guidelines and precedents on the issue. 

Death sentences are being handed down without correctly applying the framework laid down in the Bachan Singh judgment and considering mitigating circumstances or the possibility of reformation. 

The judgments also reveal an inconsistent understanding of the meaning of the phrase “rarest of rare” — which is the only kind of case that can be lead to the death penalty. 

Legal experts believe that, among other things, this is either because the trial courts are unaware of what the law on death penalty sentencing requires or, despite being aware, they ignore it. They also assert that over the years, the death penalty has started to be equated to “justice” itself. 

Also Read: How a 15-yr-old spent 5 yrs on death row for rape-murder before being released by Supreme Court

‘Rarest of rare’

In the Bachan Singh judgment, the court laid down the “rarest of rare” doctrine. However, the 213-paragraph judgment mentions the phrase only once, saying that the death sentence can be imposed only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”. 

In totality, the broad framework in Bachan Singh asks courts to weigh the circumstances of the offence and the offender, while also considering the probability of reformation, and the suitability of the alternative option of life imprisonment.

However, what exactly constitutes the “rarest of rare cases” remains unclear. 

While a few subsequent judgments link it to public opinion or to the “collective conscience” being shocked, others have ruled that the “‘rarest of rare policy…may not be essentially tuned to public opinion”. 

Legal experts have, therefore, pointed out that there is disagreement over the content and application of the “rarest of rare” framework, which has led to arbitrariness in the process. 

On the application of the framework by trial courts, a report published by NLU Delhi’s Project 39A on the 306 death sentences awarded from 2018 to 2022, showed that nearly  10 per cent of the judgments did not mention what made the case fall under the “rarest of the rare” category. 

Nearly 70 per cent of these judgments classified the case as a “rarest of rare” solely on the basis of aggravating circumstances relating to the crime.  

Several trial courts continue to award the death penalty in similar fashion. 

For instance, in January this year, a special judge in Lucknow awarded the death penalty to 31-year-old IIT Bombay graduate Ahmad Murtaza Abbasi for his attack on policemen at the Gorakhnath temple in Uttar Pradesh’s Gorakhpur district last year. 

In its 15-page sentencing order, the court refers to the Bachan Singh judgment and talks about the need for analysis of aggravating and mitigating circumstances, but does not mention the criterion of “rarest of rare” even once, let alone reasons the case falls in this category. 

In another judgment passed in November last year, a special Protection of Children from Sexual Offences (POCSO) court in Uttar Pradesh awarded the death penalty to two convicts — Haleem and Rizwan — for the kidnapping and gangrape of a minor. 

In a 10-page order, the court refers to the “rarest of rare” doctrine twice, explaining that the death penalty cannot be awarded in a murder case unless the crime has been carried out in a “cruel or diabolic manner” or has been committed brutally. 

However, beyond this, the court did not mention how this case fell in the “rarest of rare” category. Instead, it goes on to compare a woman’s body to a “temple”, and finds it ironic that such an incident happened “in a country like India which worships goddesses like Durga for shakti, Saraswati for knowledge”.

Also Read: SC confirmed LeT terrorist’s death sentence. Before that, his petition saved 19 from the gallows

‘Death penalty equated to justice’

Trial courts, therefore, often seem to be awarding the death penalty in violation of the Supreme Court judgments. 

Anup Surendranath, a professor of law at NLU Delhi and executive director Project 39A,  feels that there is an “ever-widening gap” between the Supreme Court’s guidelines and what the trial courts are doing. 

According to him, trial court judgments sentencing convicts to death row are riddled with “erroneous procedure, incorrect application of law and arbitrariness”. However, he told ThePrint that none of the possible explanations for this “cast the district courts in a good light”.

“Either they are unaware of what the law on the death penalty sentencing requires or, despite being aware, they ignore it because it has stringent and demanding requirements,” Surendranath explained.

Justice Madan B. Lokur, a former Supreme Court judge, also feels that “the heinous and macabre nature of crimes, and their reportage in the media, seems to have increased over the years”. This, he says, “has resulted in a heightened reaction from the victim’s family, obviously, and also from society”. 

“The only demand earlier was for justice. Now it is for the death penalty, which is equated with justice,” he asserted. He told ThePrint that, although he has no evidence for this, he believes “the trial judge is placed under a subliminal pressure to award a death sentence disregarding the Supreme Court guidelines”.

Surendranath feels that a lot more needs to be done than just making changes to the law. 

“How should judicial academies design their training to ensure judges are aware of the requirements of the law? Considering that the law is embedded in society, do judicial academies do enough to sensitise judges to keep their biases away from decision-making? Are trial courts well-equipped with resources to meet the demands of the formal law? These are some of the many questions that we need to ask,” he added.

‘How does a judge decide collective conscience?’

What are the reasons the courts are giving when choosing the death penalty over a life sentence? 

According to the Project 39A report published in October last year, among 282 death sentences imposed between 2018 and 2022, more than 77 per cent of the judgments mentioned “society-centric goals” such as “collective conscience” or “society’s cry for justice”. 

This is despite the fact that the Bachan Singh judgment had asserted that judges should not become “oracles or spokesmen of public opinion”. 

However, there are subsequent Supreme Court judgments — including the one that upheld the death penalty for Dhananjoy Chatterjee, who was hanged in August 2004 — that have held “collective conscience” or “society’s cry for justice” to be valid justifications for imposing the death sentence.

The Lucknow court’s judgment in the Gorakhnath temple attack case also mentions the Dhananjoy Chatterjee judgment. The trial court said this Supreme Court judgment had laid down the law that “courts should impose appropriate punishment proportional to the crime committed so that the court’s decision can show the disgust for the crime by the public”.

Commenting on the introduction of “collective conscience” as a sentencing factor into capital sentencing in India, Justice Lokur said he does not believe that there is anything like a “collective conscience”. 

“It’s a wonderful journalistic phrase, nothing more. How does a judge decide that there is a collective conscience and what it desires,” he asked. 

Surendranath also pointed out that trial courts have adopted a “crime centric-approach” to the death penalty. 

“The layperson on the street might want that crime-centric approach to determining punishment, but that’s not what the law requires. Ultimately, our judges must realise that their duty is to give effect to the law and not to the collective conscience or public opinion,” he said.

Also Read: ‘Murderer’s mom’—Not just the prisoner, their family also goes on death row in India

Aggravating and mitigating circumstances

The Supreme Court requires judges to weigh aggravating and mitigating circumstances relating to both the crime and the accused before determining the appropriate sentence.

The defence counsel, the state, and the judge all have a duty to ensure that all material helpful in mitigation is available before the court.

The trial courts are then required to to look into the background of the accused, their personal circumstances, mental health and age, among other things, to ascertain if the case is fit for a death sentence and also to determine if the option of life imprisonment has been “unquestionably foreclosed”. 

In a significant judgment delivered in May last year (Manoj vs The State of Madhya Pradesh), the Supreme Court highlighted the importance of reformation in capital sentencing, and mandated jail conduct, psychological and psychiatric evaluation reports of the convict to assist the court in assessing reform. The court, therefore, laid down guidelines for the collection of mitigating material by trial courts.

However, according to the Project 39A report, more than 66 per cent of the death sentences out of the total 306 from 2018 to 2020 were imposed without accepting any mitigating circumstance as a relevant factor. Of the total sentences, 40 per cent of the judgments did not even mention any mitigating circumstances. 

As against this, a total of 274  90 per cent of the judgments — cited the brutality of the crime as an aggravating circumstance for imposing the death sentence. The report also found that more 40 per cent of the judgments did not even mention reformation in their reasoning for sentencing.

The trend continues in more recent judgments as well. 

In the Uttar Pradesh POCSO court order awarding the death penalty by the mentioned earlier, the court had asked why two accused ought to be awarded death penalty. It went on to answer this question by listing the injuries on the girl’s body, instead of analysing the mitigating and aggravating circumstances related to the crime and the criminal. 

In the 10-page sentencing order, there are four lines that speak of the mitigating circumstances for both the accused together. 

Death penalty in less than 2 days

In September 2022, the Supreme Court acknowledged the gaps in death penalty sentencing and asked a five-judge bench to look into framing guidelines for courts to follow when examining potential mitigating factors for convicts faced with the death sentence. 

One issue the bench is set to consider relates to the amount of time the convict must be given to present the relevant material on sentencing after the conviction but before the hearing on sentencing takes place. In its order, the apex court acknowledged there was no clarity on how much time the collection and hearing of this material and actually requires. 

Surendranath explained that information about the offender’s life history before the crime and the time spent in prison is extremely significant for the judges to make their decision between a life and death sentence. 

However, he pointed out that this information would not be present in the case records, and putting it together requires time and skills that go beyond that of a lawyer. “A defence team in a death penalty case also requires the expertise of personnel trained in social sciences like psychology, social work and sociology to gather this information,” he added.

According to the Project 39A report, of the 304 death sentences awarded between 2018 and 2020, the sentencing hearing took place in less than two days in 166 instances (54.6 per cent). As many as 108 death sentences (35.53 per cent) were the outcome of a sentencing hearing that was conducted in two to seven days, and 30 (9.87 per cent) were awarded with the sentencing hearing being held after more than a week. 

In the Gorakhnath temple attack case, Abbasi was convicted on 27 January, and the sentence was awarded two days later, on 30 January this year. 

Surendranath told ThePrint that, given the nature of the inquiry the defence team has to undertake before a sentencing hearing, “it is not difficult to see why sufficient time between the date of conviction and the sentencing hearing is essential.” 

However, he also said that quality of the information is equally important to ensure that judges are able to truly understand the person they are looking to sentence. 

Additionally, Justice Lokur feels that there should be a “considerable gap” between conviction and sentencing, “so that time is available for passions to cool and so the rights of the victim’s family and the accused are preserved.”

Also Read: ‘Sealed covers’ contrary to fair justice, observes Supreme Court, wants to end practice

A fresh look

Speaking to ThePrint, Surendranath said the Bachan Singh framework had been conceptualised with murder cases, because those were the only offences eligible for the death penalty at the time. However, since then, the penalty has been extended to other offences as well, including those under the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

He, therefore, believes that “the vague and deficient ‘rarest of rare’ needs both clarifications on its different elements as well as a fundamental rethink from the perspective of non-homicidal death-eligible cases.” 

Now that a Constitution Bench of the Supreme Court is set to look at framing guidelines for courts to follow when examining potential mitigating factors for convicts faced with the death sentence, Surendranath hopes it will bring some clarity.

He told ThePrint that “it has to be said in no uncertain terms that the court cannot sentence a person to death without taking their life history and life in prison into account”. 

For this, he asserted that the bench would have to look at several factors, including quality legal representation at the sentencing hearing; the meaning of sufficient time between conviction and the sentencing hearing; the duty of the prosecution and judicial standards that must be met while considering aggravating and mitigating circumstances; the offender’s ability to reform; and the alternative of life imprisonment. 

Surendranath added that it’s important that the bench also consider all offences that are now punishable by the death penalty while framing these guidelines. 

Justice Lokur feels the Constitution bench must look at the entire issue in detail and lay down guidelines. “However, there will always be a difference of opinion on such matters, including implementation, like the “rarest of rare” doctrine. But it will certainly introduce some clarity,” he said. 

“Ultimately, the Supreme Court may have to decide whether the death penalty should be abolished and if not, for which category of cases should it be retained,” he added. 

(Edited by Richa Mishra)

Also Read: Digitising over 3,000 cr records, pushing online hearings — Modi govt’s plan for eCourts Phase III


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