Why Demands for the Death Penalty Are Unwarranted

This article originally appeared on the The Wire.

The Supreme Court of India has done away with 31 death sentences (11 acquittals and 20 commutations) in the last six months. India’s trial courts, meanwhile, imposed 162 death sentences in 2018 and, in the process, handed out the highest number of death sentences in nearly two decades. 

The parliament of India amended the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act (POCSO) to provide for the death penalty for child rape. In Madhya Pradesh, prosecutors are felicitated for achieving the fastest and the most number of death sentences. 

The Supreme Court, last week, recognised that six innocent persons were framed in 2003 and kept on the death row for nearly 13 years. The Supreme Court has also acquitted five other individuals in the last few weeks who were sentenced to death by trials courts and two different high courts. What should we make of all these developments relating to the death penalty that seem to pull in different directions?

Among all those developments, the real shocker is the case of the Shindes. The Supreme Court on March 5, 2019 admitted that six persons were framed by the police, wrongfully convicted and had lost 13 years of their life on death row. A big part of the injustice perpetrated on these men included a judgment by the Supreme Court in April 2009 upholding their guilt and the death sentence.

The three-judge bench of the Supreme Court comprising Justices A.K. Sikri (now retired), Abdul Nazeer and M.R. Shah was so aghast that they ordered an official inquiry against the investigating officer and gave each of the six men Rs 5 lakh as compensation.

This case holds out a huge lesson in terms of the death penalty in our criminal justice system. It demonstrates very strongly the error-prone nature of our criminal justice system and the dangers of retaining the death penalty in a system like ours.

However, on the same day that they ordered the release of these six innocent men and acquitted two others from Chhattisgarh, Justices Sikri, Nazeer and Shah confirmed the death sentence for Khushwinder Singh from Punjab. While noting that the Khushwinder’s lawyer was unable to present any mitigating circumstances, the judges adopted an extremely restrictive reading of the death penalty sentencing framework in upholding Khuswinder’s death sentence. 

Ever since Chief Justice Ranjan Gogoi started listing death penalty cases on a priority basis in October 2018, Khushwinder is the only one to have his death sentence confirmed while 31 others have had their death sentences vacated. The death penalty in this context becomes extremely bizarre and arbitrary with no real principled reason for its imposition. 

While the Supreme Court has sent a strong message about its concerns with the death penalty by vacating 31 death sentences in six months, the trial courts seem to be headed in the opposite direction. Trial courts pronounced 162 death sentences in 2018, making it the highest in a calendar year since 2000 and presenting rather confounding views on the death penalty within the judicial system. Data for 16 years between 2000-15 shows that 30% of death sentences by trial courts end up in acquittals and a further 65% are commuted making it evident that there is an exaggerated use of the death penalty in the trial courts.

However, the popularity of the death penalty in the last year has also been spurred by certain incidents of child rape that shocked the collective conscience of the nation. However, legislative amendments to the IPC and POCSO introducing the death penalty for child rape are a perfect example of the death penalty being used as a political tool. These amendments ignore comprehensive research that demonstrates that child victims of sexual violence require better implementation of the POCSO rather than introducing harsher punishments into a system already crumbling under its own weight.

The use of legislative amendments to introduce the death penalty for child rape has already thrown up grave concerns. Trial courts in Jharkhand, Madhya Pradesh and Rajasthan have used the new law to impose death sentences. In Madhya Pradesh, seven individuals across six cases have been sentenced to death exclusively under the new law. The average period between the date of the incident and the date of conviction in these six trials was approximately two months. 

In the State of M.P. v. Rajkumar Kol (Special Session Trial no. 55/2018, Additional Sessions Judge, District Katni)the accused was sentenced to death in 22 days from the date of the incident for the rape of a minor girl. It is also important to note that all the six rape trials resulted in death sentences being pronounced on the same day as the conviction. The short duration of trials and same day sentencing bring into serious question the quality of legal representation received by the accused and consequently their right to fair trial. 

In addition to this, prosecutorial independence has also come into question with Madhya Pradesh devising and implementing schemes incentivising public prosecutors to seek the death penalty. The importance of prosecutorial independence to a fair trial was highlighted by the Aurangabad Bench of the Bombay High Court (Writ Petition no. 8117 of 2017) in a judgment dated August 24, 2018, where it held a Maharashtra Government Resolution linking the promotion of public prosecutors with conviction rates unconstitutional. 

Such rules compromise the right to a fair trial by prioritising particular outcomes in a trial over the interests of justice. They have the potential for an aggravated and adverse impact on death penalty eligible cases, increasing the likelihood of conviction and execution of innocent persons.

The death penalty in India is at a critical juncture with the Supreme Court strongly signalling major concerns with its use in the courts below. Sufficient attention hasn’t been paid to the crisis that afflicts sentencing in the trial courts and decades of sentencing confusion in the Supreme Court has had a protracted impact on the high courts and the Supreme Court. 

Justice Potter Stewart in Jacobellis v. Ohio (1964) proposed the ‘I know it when I see it’ standard for determining obscenity and the ‘rarest of the rare’ doctrine has started resembling an approach that has very little principle and lots of individual subjectivity.  However, six innocent men spending nearly 13 years on death row with the stamp of approval from the Supreme Court takes us into a whole new territory. 

There were always concerns that India’s death row population has innocent people trapped, but now there is undeniable proof of that in the Shindes case. It is one thing to say that we will continuously try to reduce arbitrariness but it is a very different conversation when we are willing to risk executing people when the possibility of error has been clearly demonstrated. The suffering inflicted on the Shindes, must have a humbling effect on the repeated clamour for the death penalty.