The death-penalty sentencing process in India is broken, and now there is fresh research that reiterates this fact. In pathbreaking work carried out by the National Law University in Delhi, 43 of 60 former judges of India’s Supreme Court interviewed for the research, who had adjudicated 208 death-penalty cases among them between 1975 and 2016, expressed grave doubts about wrongful convictions.
But 39 of the judges interviewed favor retaining capital punishment. Eight of them were former chief justices of India. Of the 60 judges interviewed, 47 adjudicated capital-punishment cases and confirmed 92 death sentences in 63 cases.
Judges of the apex court are regarded as the embodiment of the letter and spirit of the law, and are supposed to judge with objectivity, without letting their biases and prejudices creep into rulings. The death sentences confirmed by the Supreme Court are final decisions, unless they are reversed on review, which happens very rarely.
However, the report throws up a grave fact – that there is a lot of subjectivity in the nature of judgments. Many judges don’t have clarity about the the legal statutes behind the sentencing procedure.
The report, which is in the form of an opinion study, kept the views of individual judges anonymous so as not to divert focus from the system to specific persons.
Justification for torture
The rampant use of torture, the study found, shows how deep the crisis in the criminal justice system is. Torture is used to generate evidence as well as to fabricate it. Though some former judges did offer justifications for this abysmal state of affairs, there was an overwhelming sense of concern about the integrity of the criminal justice system from multiple perspectives.
Of the 39 judges, only one thought torture by the police and other investigative agencies was not perpetrated. Of the rest who accepted that torture does take place, 12 thought it could be justified, given the pressures investigators are working under. The existence of torture was also rationalized by stating that investigating agencies are “either lazy, or don’t have enough manpower, or do not know methods of scientific investigation,” the report says.
The judges voiced their concerns, but it had little bearing on their views on the administration of capital punishment.
In 1980, a five-judge bench of the Supreme Court, in the Bachan Singh vs State of Punjab case, laid down a binding doctrine on how death sentences are to be handed down. It was to be only in the “rarest of rare” cases, and the principles for determining this sought to take away the subjectivity caused by prejudices and views of individual judges.
However, the report reveals a shocking detail. Only 13 of the interviewed judges were able to articulate their views on how this doctrine was to be implemented.
One judge who confirmed a death sentence that led to an execution expressed helplessness about the subjectivity in sentencing: “The problem is so rampant, so obvious, that it is difficult to find any consistency in the approach, and it is difficult to see [the] rationale in awarding [the] death sentence in one case and not awarding in another, more severe case.”
The report states: “For a significant number of judges, the ‘rarest of the rare’ was based on categories or description of offenses alone and had little to do with judicial test requiring that the alternative of life imprisonment be ‘unquestionably foreclosed.’ This meant that for certain crimes, this widely hailed formulation falls apart, rendering the sentencing exercise nugatory.”
There is a growing consensus among criminologists that executions do not deter criminals. Despite this, deterrence emerged as the strongest justification for retaining the death penalty, with 23 former judges seeing merit in that argument. When former judges spoke of the deterrent value of the death penalty, significant differences emerged in their understanding of it.
The first of the two main strands that emerged viewed the fear of death for achieving deterrence. Judges in this category took the position that the qualitative nature of the death penalty distinguished it from any other punishment, and that the fear of death was an effective deterrent. A judge who has confirmed three death sentences in his four-year tenure as a Supreme Court judge remarked: “What is the greatest fear of every human being? … Death. Everything else you can swallow, but death you cannot.”
Most of the judges felt that since there are very few executions, retaining capital punishment is justified. This, the researchers of the report regretted, did not factor in the intense mental agony and torture undergone by a person living with the threat of the gallows hanging like the sword of Damocles over his head for years on end.
In 2008, Amnesty International came out with a report that described the administration of the death penalty in India as a “lethal lottery” and made a strong point for its abolition in its entirety. The present report only buttresses this argument.