Updated: Jul 31, 2020
New Delhi: In violation of the law, the constitutional right to fair trial and a landmark 40-year-old Supreme-Court decision, Indian trial courts impose death sentences based on brutality of crimes, without considering individual circumstance, reform or suitability of life imprisonment.
These are the findings of analysis of all capital punishments pronounced by trial courts in Delhi, Madhya Pradesh and Maharashtra over a 16 year period. Released by Project 39A, the report reveals a plain disregard for mandatory sentencing procedures in capital cases across the three states and raises questions on the imposition of the death penalty on 322 persons in 215 cases and in general the administration of the death penalty in India.
The death penalty has survived several constitutional challenges in India and remains a legal punishment on our statute book. When its validity was challenged in Bachan Singh Vs State Of Punjab in 1980, a Constitution bench of the Supreme Court, while upholding its constitutionality, laid down a sentencing framework.
Bachan Singh was convicted and sentenced to death for murder of three family members by the trial court. The High Court confirmed the death sentence. When an appeal was filed in the Supreme Court, the case ended up being referred to a five judge bench with a constitutional challenge to the death penalty. While upholding the constitutional validity of the death penalty, the Supreme Court interpreted “special reasons”, inserted into the law by 1973 amendments to the Criminal Procedure Code (CrPC). In doing so the Court laid down what is popularly known as the ‘rarest of rare’ sentencing framework.
The Bachan Singh sentencing framework was an attempt by the Court to guide the discretionary power of judges in choosing between life imprisonment and a death sentence, as they set aside concerns about the arbitrary imposition of death sentences. 40 years since the Bachan Singh framework it has been marked by error, subjectivity and misguided interpretations.
Most scholarship on the issue starting with the seminal work, Lethal Lottery (2008), has been dedicated to understanding and documenting concerns with capital sentencing in the Supreme Court. Project 39A’s report, based on an analysis of all trial court death sentences from three states over a 16-year period ending 2015, offers an insight into capital sentencing hearings at the lowest level of the judiciary.
The report demonstrates an extremely poor state of compliance with the Bachan Singh capital-sentencing framework.
The Bachan-Singh Framework
The Bachan-Singh sentencing framework has two main components: A sentencing court is required to consider aggravating and mitigating circumstances of both the crime and the offender.
Essentially, this means that the court is required not only to consider details about the crime but also look into the life history of convicts to understand their historical, social, psychological and biological context. Personal information relating to an individual’s childhood, socio-economic background and their age at the time of offence therefore become relevant to such an inquiry.
It enables courts to meaningfully locate individuals in their unique context by providing a cohesive narrative of their life that allows judges to take into account these life experiences while deciding punishment.
A death sentence can only be imposed if the option of life imprisonment has been ‘unquestionably foreclosed’ by the sentencing court. Any court hearing a capital case in India is bound by this framework.
Dissonance: Trial Courts And The Supreme Court
Project 39A’s foundational work, the Death Penalty India Report (2016), revealed that of more than 1,700 prisoners sentenced to death by trial courts over 15 years to 2015, appellate courts ultimately confirmed 4.9% of sentences: 29.8% of the prisoners went from being sentenced to death to being acquitted of all charges, while 65.3% of death sentences were commuted to life.
This meant that trial courts sentenced to death a large number of people, whose cases do not meet the high threshold set by judicial standards. More recently, Project 39A’s yearly publication, Annual Statistics, found that while trial courts pronounced 102 death sentences in 2019, the Supreme Court that year confirmed only six death sentences.
So, trial courts emerged as an important site to explore the possible reasons for the dissonance between trial courts and the apex court on the question of death sentence.
Conviction And Sentencing The Same Day
Our research analysed, as we said, all 215 trial court judgments that imposed death sentences on 322 persons between 2000 to 2015 in Maharashtra (90), Madhya Pradesh (82) and Delhi (43).
The death penalty was frequently imposed in these three states and a large number of the decisions in capital cases were overturned. The study revealed the superficial nature of capital sentencing hearings conducted by trial courts.
Trial courts were heavily driven by a crime-centric approach while deciding the punishment and did not consider mitigating circumstances in 51% of the cases.
Further, trial courts overwhelmingly imposed death sentences on the same day as the conviction, without considering the alternative of life imprisonment and according sufficient opportunity to the defence counsel to present mitigation.
Section 235(2) of the CrPC bifurcates a trial into two stages, guilt determination/conviction stage and the sentencing stage to ensure that a just and suitable punishment is imposed after the defence lawyer has had enough time to gather evidence on the question of sentence.
A sentence pronounced on the same day as the conviction does not afford this opportunity to the offender and thereby raises concerns about fair trial rights at the sentencing stage. The study revealed that trial courts and lawyers did not take sentencing seriously.
Out of the 215 cases from the three states, date of conviction and sentencing hearings were available in 211 cases. In 44% of these 211 cases, trial courts had sentenced persons to death on the same day as the conviction.
This concern was most serious in Madhya Pradesh where 76.9% of the cases had same-day sentencing. Maharashtra had sentencing on the same day in 34.4% of the cases, but 57% of the cases had sentencing on the same day or with no more than a 24-hour gap. Delhi was better relatively with 53.4% of sentencing hearings taking place at least a week after the conviction.
Same-day sentencing inevitably leads to no substantial information about the accused being presented before the courts, making courts rely only on the circumstances of the crime while deciding the punishment.
While deciding between life imprisonment and death sentence, sentencing courts are expected to have detailed information about the accused before they consider both aggravating and mitigating factors. Lack of adequate information about the accused renders it impossible for a trial judge to determine the sentence as per fair trial norms.
Disregard For Mitigating Circumstances
The fact that a significantly high number of cases involved sentencing on the same day as conviction or without sufficient duration between the conviction and sentencing hearing consequently impacted a trial court’s consideration of mitigating circumstances of the accused.
With little or no arguments on sentencing being presented by defence lawyers, trial courts imposed death sentences in 49% cases only on the basis of the circumstances of the crime. Even in the small number of cases where trial courts did consider mitigating circumstances, their reasons for dismissing the same revealed a questionable understanding of mitigation.
For instance, in State of Madhya Pradesh v. Charanlal (2001), which was a case of rape and murder, the court summarily dismissed all mitigating circumstances by posing the following questions: “Can any mitigating circumstance be a reason for such a beastly act? Can such a person gain mercy and sympathy from society? Can such a person have repentance for his deeds and reform for the good? Should the court allow such a person to live a grand life after serving the punishment?”
Mitigating circumstances are not justification for crime and have no bearing on guilt. They are only meant to understand the life history and circumstances of the accused in order to assess their culpability.
However, several such examples from trial courts raised concerns about the quality and manner of consideration of mitigating circumstances in the small number of cases where it did appear to be considered.
Possibility Of Reform Not Considered
Besides meaningfully considering circumstances of both the crime and the accused towards deciding the sentence, Bachan Singh also requires the consideration of life imprisonment and puts in place a very high threshold of “unquestionably foreclosed” to rule it out.
However, in complete disregard of the fact that life imprisonment is the normal punishment in law, trial courts did not remotely consider the suitability of life imprisonment in 73.4% of cases.
Even in the small numbers of cases where life imprisonment was discussed, it was rejected on the basis of brutality of the crime in 100% of the cases. Similarly, the probability of reformation of the accused, which has been identified as a crucial mitigating factor in Bachan Singh, was dismissed on the basis of the circumstances of the crime.
Reformation was rarely considered a mitigating factor and even in the small number of cases (62 of 215) where it was, it was dismissed on the basis of the crime in 40 (of 62) cases. Every capital case eligible for the death sentence is brutal in some sense, so linking the question of reform and the option of life imprisonment to brutality makes the determination backward looking and redundant.
Invoking Collective Conscience
Concerns around same-day sentencing, non-consideration of mitigating circumstances and imposition of death sentences without ruling out life imprisonment have been further complicated by the introduction of “collective conscience” as a sentencing factor into capital sentencing in India.
Collective conscience, a factor unknown to Bachan Singh, was first introduced by a three judge bench of the Supreme Court in Machhi Singh (1983). The Court laid down five categories, where the community would expect the holders of judicial power to impose the death sentence, because collective conscience was sufficiently outraged.
These five categories include motive of the crime, manner of its commission, anti-social or socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of the murder. Instances were listed under each of these categories.
Notably, the examples cited by the court point towards specific crime categories to impose death sentence, an approach that Bachan Singh had guarded against. Amorphous categories of public opinion were further consolidated in the death penalty jurisprudence in Dhananjoy Chatterjee (1994), where the Supreme Court while imposing a death sentence, held that appropriate punishment enables courts to respond to ‘society’s cry for justice’.
Use of collective conscience as a sentencing factor has had a devastating impact on India’s already broken capital-sentencing system, which allows sentencing courts to impose death sentence by invoking public opinion based on the circumstances of the crime and thereby giving a complete go-by to mitigating circumstances.
Despite frequent usage, this approach has been critiqued by the Supreme Court itself in Santosh Bariyar (2009) for want of clarity around the meaning of “public conscience” and the counter-majoritarian role of courts.
Trial courts across Delhi, Madhya Pradesh and Maharashtra frequently invoked collective conscience, to the complete exclusion of mitigating factors: 31 cases in Delhi, 35 in Madhya Pradesh and 46 in Maharashtra. Of these total 112 cases, in 63 cases the courts considered absolutely no mitigating factors.
Gaps Left Unaddressed By Supreme Court
The findings from the report raise systemic concerns about the fair-trial rights of the accused at the sentencing stage and in doing so question the tenability of an irreversible punishment in a broken criminal justice system.
It would, however, be inaccurate to place complete responsibility for this crisis on trial courts alone. A significant part of it is attributable to the Supreme Court.
While the Supreme Court judgment in Bachan Singh v. State of Punjab did offer a preliminary sentencing framework to guide judicial discretion in capital cases, it left behind significant gaps which remain unaddressed till date.
These gaps coupled with 40 years of misguided interpretations of the Bachan Singh framework have severely impacted capital sentencing across all courts. Fixing the problems of capital sentencing that this report reveals has to be rooted in a coherent and meaningful judicial discourse on fair-trial requirements during sentencing.
Unless this is done, the imposition of the death penalty in India will continue to be arbitrary and unpredictable. While many of us may take comfort in advocating for the retention of capital punishment on philosophical grounds, the violation of due process during capital sentencing in trial courts documented by this report should make us reassess our position.
(Neetika Vishwanath is a lawyer who works with Project 39A at the National Law University, Delhi. She headed the trial court sentencing study and co-authored the resulting report, Death Penalty Sentencing in Trial Courts: Delhi, Madhya Pradesh and Maharashtra (2000-2015), with Anup Surendranath and Preeti Pratishruti Dash.)