MATTERS OF JUDGMENT

Matters of Judgment is an opinion study on the criminal justice system and the death penalty with 60 former judges of the Supreme Court of India. The 60 former judges adjudicated 208 death penalty cases between them at different points during the period 1975-2016. The study was an attempt to understand judicial thought and adjudicatory processes that govern the administration of the death penalty within India’s criminal justice system. We received academic support from Professor Carolyn Hoyle (Centre for Criminology, University of Oxford), Dr. Mai Sato (University of Reading) and Mr. Saul Lehrfreund (Death Penalty Project, London) in conducting this study.

We carried out in-depth, semi structured interviews with former judges with a questionnaire that guided the interviewers. The questionnaire was broadly divided into three themes which included, investigation and trial processes, sentencing in death penalty cases, and judicial attitudes towards the death penalty. Besides the questionnaire, three hypothetical cases were also used as a tool during interviews. Each hypothetical case consisted of relevant evidence on record for a capital offence committed, and a few sentencing factors. The former judges were asked to decide these cases by determining guilt, and sentencing the accused.

Most interviews lasted between 90 to 120 minutes, and were conducted by two interviewers, at either residential, or office spaces of the judges. Given the nature of interviews, and the varying time availability across judges, we were unable to obtain responses to every question from all the interviews, which is evident in the varying number of responses on different issues.  

Introduction 

Broken Criminal Justice System

Matters of Judgment is an opinion study on the criminal justice system and the death penaltyThere was an overwhelming sense of concern among judges about the integrity of the criminal justice system due to the prevalence of torture to generate evidence, fabrication through recovery evidence, an extremely ineffective legal aid system and wrongful convictions. Of the 39 judges who discussed the issue of torture, 38 believed it to be a prevalent practice. A judge who confirmed four death sentences in the Supreme Court said, “when it comes to crime, they [police] will pick up small men and adopt third degree methods, to make them accused and elicit their confessions, whether they have committed crime or not.”

Reasons for Abolition and Retention

All former judges, irrespective of their position on the death penalty, were asked reasons for abolition and retention of the death penalty in India. In response, 29 former judges identified abolitionist justifications and 39 identified retentionist justifications. 14 retentionist judges took the position that there was no reason whatsoever to consider abolition in India and three abolitionist judges felt there was no reason to keep the death penalty. It was interesting that a significant number of retentionist judges identified abolitionist reasoning. While that demonstrates the inescapable force of certain abolitionist arguments, conspicuous by its absence was any acknowledgment of the disparate impact of the death penalty on the poor and marginalised sections of Indian society despite clear empirical evidence. 

Understanding of ‘Rarest of Rare’ 

Despite the ‘rarest of rare’ doctrine in death penalty cases having very specific requirements as laid down by the Supreme Court in Bachan Singh (1980),  multiple and varied notions of the doctrine exists among the former judges. It is evident that there exists no uniform understanding of the requirements of the ‘rarest of rare’ doctrine and this gave rise to serious concerns of judge-centric sentencing. While half the judges acknowledged the grave concerns with judge-centric sentencing in death penalty cases leading to extreme personal subjectivity, the other half was of the view that this personal subjectivity was an inevitable part of sentencing.  

The Disconnect

The former judges’ scepticism about India’s criminal justice system did not migrate into their assessment of administering the death penalty in India. Despite 43 former judges acknowledging wrongful convictions as a worrying reality, only five judges recognised the ‘possibility of error’ as a possible reason for abolition in India. One of these five judges remarked that “there will be too many uncertainties in investigation and trial. You may have imposed death sentence on someone who is not really guilty.”

SENTENCING EXERCISE ANALYSIS 

During the interviews, we presented the judges with three hypothetical capital cases, along with individualised sentencing factors. As part of this exercise, they were asked to sentence the accused in each case, taking into account the circumstances of crime and criminal. It was encouraging to see judges consider personal factors like age, socio-economic profile and childhood while deciding against imposing the death sentence in this case. We rarely see these factors being presented as a part of the life history of the accused as was done in this exercise through the sentencing factors. Judges willingness to appreciate these personal factors emerged as a positive sign and reiterates the onus on defense lawyers to bring these forward.

Majority of the judges were clearly willing to  consider sentencing factors that were presented to them in each case. The fact that we rarely see this happening in cases  decided by our courts begs the question about such materials being placed before the court by the lawyers. Investigating the personal and social history of the accused to be presented as relevant sentencing factors is an intensive exercise that involves significant investment of time and resources. Discussions surrounding the requirements of legal representation in death penalty cases has completely neglected this requirement in death penalty sentencing. The shallow discussions on sentencing in judgments across different levels of the judiciary is a clear indication of this failure within the criminal justice system.

Project Supervision

Project Design and Lead Researchers

Lubhyathi Rangarajan

Neetika Vishwanath

Preeti Pratishruti Dash

Rahul Raman

Data Analysis

Preeti Pratishruti Dash

Rahul Raman

Report Writing

Interviewers

Amartya Kanjilal

Himanshu Agarwal

Lubhyathi Rangarajan

Maitreyi Misra

Neetika Vishwanath

Administrative Coordination

Lubhyathi Rangarajan

Neetika Vishwanath

Poornima Rajeshwar

Preeti Pratishruti Dash

Rahul Raman

Interns

Anjali Agarwal,University School of Law and Legal Studies, GGSIP University

Gale Andrew, National Law University, Delhi

Ishaan Shariff, Bangalore Institute of Legal Studies

Keshav Madhav Gulati, University of Delhi

Komal Dubey, Rizvi Law College, Mumbai

Krutika Shah, K.C. College of Law, Mumbai

Maansi Verma, University of Delhi

Madhurika Durge, Symbiosis Law School, Pune

Maulshree Pathak, National Law University, Delhi

Meera Menon, National Law University, Delhi

MeghanaMuddurangappa, National Law School of India University, Bangalore

Nishtha Agarwal, University of Delhi

Pavani Nagaraja Bhat, National Law University, Odisha

RitambaraNath, University of Delhi

Shantanu Pachauri, National Law Institute University, Bhopal

Shirley Jacob, ILS Pune

Shubh Dixit, National Law University, Jodhpur

Siddharth Lamba, National University of Study and Research in Law, Ranchi

SomyaPahi Jena, National Academy of Legal Studies and Research, Hyderabad

Vedika Pareek, Gujarat National Law University

Victoria Christie, Melbourne Law School