The recently published statistics on the state of death penalty in 2018 is an indication of the confusion that besets use of death penalty in India. Drastically different treatment by the legislature, trial courts and the appellate judiciary further intensifies competing tensions in administration of the death penalty.
Calls for death penalty began early on in the year in the backdrop of incidents in Kathua and Unnao. 2018 also saw the prime minister encouraging the death penalty in his Independence Day speech and amendments to IPC and Pocso introducing the death penalty for rape of children.
As far as its judicial treatment is concerned, trial courts in 2018 imposed a record number of 162 death sentences – the highest in nearly two decades. The Supreme Court, on the other extreme, commuted 11 out of the 12 death sentence cases it decided and continued to signal concerns with administration of the death penalty by courts below.
The legislative expansion of death penalty is not new. In the last five years, Parliament passed two other laws introducing death penalty. The Delhi gang rape prompted amendments to IPC in 2013 introducing death penalty for certain sexual offences. In 2016, the Anti-Hijacking Act was passed prescribing death penalty as well.
The legislature guided by political and public reactions has immense faith in death penalty as a response to heinous crimes. But, irrespective of public notions, the law requires courts to consider aspects beyond just the crime when imposing death sentence.
Socioeconomic circumstances of the individual, age, past history, time spent in prison, and the probability of reformation are some factors, which the Supreme Court itself has declared as integral to the sentencing process. However, in reality all levels of the judiciary have for long struggled with using their own terms of reference in administering the death penalty uniformly.
Given this context, expanding the use of death penalty in an already constitutionally suspect framework threatens to weaken the criminal justice system even further. Lack of cohesion within the judiciary is evident from multiple instances when the appellate judiciary has pushed back against the eagerness of trial courts in imposing death penalty.
The Supreme Court has time and again indicated that death sentence is being used by the lower courts more liberally than is intended. The ‘Death Penalty India Report, 2016’ found that over a 15-year period from 2000 to 2015, less than 5% of death sentences were eventually upheld by the Supreme Court.
This trend seems to be continuing. In 2018 itself, various high courts commuted death sentences in 55 cases, of which 24 involved sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts.
On its part the Supreme Court commuted 11 death sentences in 2018, including a dissenting opinion by Justice Kurian Joseph calling for the abolition of the penalty itself. Six of these commutations by the Supreme Court involved charges pertaining to sexual offences. Be that as it may, the Supreme Court’s performance on death penalty sentencing is also rife with inconsistencies as traced by ‘Lethal Lottery: The Death Penalty in India’, a report analysing over 50 years of the Supreme Court’s jurisprudence on this issue.
It is evident that death penalty encounters different responses at various levels of the judiciary. While the trial courts demonstrate an exaggerated affection for death penalty, appellate courts seem to be increasingly sceptical.
This incoherence has been particularly glaring in the past year. The legislature’s faith in death penalty, then, is in sharp contrast to this reality and its reliance betrays an honest evaluation of the criminal justice system.
This post was originally published in Times of India.