Bengaluru: India is one of 55 countries in the world that retain the death penalty for ordinary crimes, as of December 2021. By the end of 2022, India had 539 prisoners on death row, according to Death Penalty in India: Annual Statistics Report published by Project 39A, a criminal justice research and litigation centre part of the National Law University.

There were 165 death sentences in 2022, the highest in a year over two decades since 2000, said the report.

“I do not think we have seen any real weakening of retributive justice sentiments in our society and neither should we expect it,” said Anup Surendranath, executive director of Project 39A and SK Malik Chair Professor on Access to Justice at the National Law University, Delhi. But his immediate concern, said Surendranath, is the retributive turn of lawmaking and adjudication in district courts.

Each year since 2016, with the exception of 2020, at least 100 death sentences have been imposed by sessions courts in India. The Supreme Court has said that various factors, including the nature of the crime and the circumstances of the accused, must be considered before death sentencing. “However”, says Surendranath, “trial judges seem rather unwilling to undertake the latter part of that assessment, and make the decision between life imprisonment and death sentence only on the basis of the nature of the crime.”

Also, often death row prisoners--many of whom are poor--are unable to access quality legal aid and investigations that can present any mitigating circumstances that can help their case.

In an interview, Surendranath talked about the retention of death penalties, the problems with retributive justice, and the increasing trend of death penalties in recent years.

Edited excerpts:

As many as 108 countries are reported to have abolished death penalties for all crimes. In February, Volker Türk, United Nations High Commissioner for Human Rights, said that the “use of the death penalty is egregious against any human being”, and that there is evidence which strongly suggests that the death penalty “has little or no effect on deterring or reducing crime”. Why does India persist with the death penalty despite calls by international agencies and Law Commission recommendations for its abolition?

There is an unmistakable global trend towards the abolition of the death penalty. In December 2022, 125 countries voted in favour of the 9th resolution of the UN General Assembly calling for a moratorium on the use of the death penalty. Thirty seven countries voted against the resolution and India was one of them. The retention and the use of the death penalty has always been political, in the sense that retentionist societies know that death penalty does not serve any real purpose. Across the vast expanse of history and societies across the world, the death penalty has been used to show that governments take certain crimes very ‘seriously’ and essentially cover up what are essentially governance failures in preventing crime.

As far as India is concerned, the sense I have is that the support for the death penalty has only got stronger in the last decade. This support for the death penalty has been on the back of the grave concerns about sexual violence in our society.

In the last decade, we have amended the Indian Penal Code and the Protection of Children from Sexual Offences Act (see here and here) to bring in the death penalty for more sexual violence-related offences, including for certain categories of non-homicide rape.

I do not think we have seen any real weakening of retributive justice sentiments in our society and neither should we expect it. Social attitudes towards crimes and those who commit crimes are a result of complex social, political, economic and cultural dynamics and it is evident we are only getting increasingly comfortable with retributive responses.

However, my more immediate concern is the retributive turn that lawmaking and adjudication in the district courts has been taking for a while now. Lawmaking and adjudication are processes meant to temper the retributive sentiments of society but they only seem to feed off it and also fuel it.

Your report shows that over two decades, 2022 had the most number of death sentences (165) imposed by sessions courts. Except 2020, at least 100 death sentences have been reported each year between 2016 and 2022. Why are death sentences being increasingly imposed?

There are contradictory trends in what is happening with the death penalty in India. The Supreme Court has been increasingly uncomfortable with the manner in which death penalty sentencing is being carried out and that is reflected in the number of death sentences it is not confirming.

In the last seven years that Project 39A has been publishing annual death penalty statistics, the outcomes in the Supreme Court present an interesting picture. Of the 110 death sentences decided between 2016 and 2022 (criminal appeals, review petitions, and curative petitions by prisoners sentenced to death), the Supreme Court upheld under 4% of the death sentences. Nearly 71% of the death sentences were done away with in the Supreme Court by way of acquittal or commutation.

However, it is evident that there is an exaggerated and unjustified use of the death penalty in the trial courts. At the end of 2022, India had 539 prisoners on death row, which represented a 40% jump from 2015. And of course, legislatively, as I said before, there is an expansion of the death penalty. The Supreme Court’s concern has been that the law on how judges must decide between life imprisonment and the death sentence is just not being followed.

Trial judges are going about sentencing by almost exclusively focusing on the nature of the crime. While that might sound reasonable/appropriate to the layperson, that is not what the law requires sentencing judges to do. It requires them to take into account the nature of the crime and also circumstances of the accused. However, trial judges seem rather unwilling to undertake the latter part of that assessment and make the decision between life imprisonment and death sentence only on the basis of the nature of the crime.

There have been concerns about uniformity in the death sentencing framework, and in September 2022, the Supreme Court decided to refer to a five-judge bench the task of framing guidelines regarding potential mitigating circumstances to be considered while imposing a death sentence. Can you tell us more about the guidelines and their implementation?

While upholding the constitutional validity of the death penalty in May 1980 (in the case of Bachan Singh v. State of Punjab), the Supreme Court said that sentencing judges must weigh what they called ‘aggravating factors’ and ‘mitigating factors’. Judges were meant to weigh factors that pointed in the direction of harsher punishment and also factors that suggested that the lesser punishment of life imprisonment might be more appropriate. It was very clear in the Supreme Court’s judgement that this could not just be based on the details of the crime.

It was essential to also consider factors concerning the life and circumstances of the accused. All of this has to be given appropriate weight by the judge in deciding whether the death sentence should be imposed on the accused (and what has popularly come to be known as the ‘rarest of the rare’ test). This phrase ‘rarest of the rare’ is often misunderstood by judges, lawyers and laypersons alike and it is incorrectly stated as though the test is whether the crime can be said to be rare. The rarity or the cruelty of the crime is not the sole or determinative factor under India’s death penalty law but it is astounding the frequency with which this error is committed by sentencing judges.

One of the main reasons for this common error is that there is very little information about the accused that is placed before the judge and neither do sentencing judges insist on ensuring that it is collected. The failure to present such mitigating information (and thereby making it easier to choose the death sentence over life imprisonment) must be seen in the Indian context. Collecting such information is an intense and long drawn out task that requires expertise that is far beyond that of lawyers. Mitigation investigations (as they are called) require skillsets that lawyers do not bring to the table and it requires social workers, mental health professionals, sociologists etc. to interact with the accused, their family and their close circle of relationships. But a large proportion of death row prisoners are extremely poor and cannot afford quality legal representation, let alone access any meaningful mitigation investigation.

In essence, our death penalty law envisages that the legal process will go about the sentencing process a certain way. But the reality is that the people who bear the undue burden of the death penalty are in no position to ensure that these processes are actually followed. Forty two years after Bachan Singh, the Supreme Court has acknowledged that this is a massive gap that needs to be addressed. The reference to the five-judge bench has at its heart these issues of collecting mitigation information that must necessarily be available to a judge. That we carried on for over four decades without really ensuring that people have the capacity and opportunity to present mitigation information as required by the law is a travesty.

However, even if the Supreme Court is able to successfully address the issue of collection of mitigation information, the judicial treatment of such information is a constitutional crisis that will persist. The Supreme Court’s jurisprudence on sentencing is inconsistent and lacks any real coherence on how judges must approach the weighing of different sentencing factors. As a result, death penalty jurisprudence in India has been extremely judge-centric and it is a serious concern that the Supreme Court itself and the Law Commission of India has acknowledged.

In the case of Manoj v. State of Madhya Pradesh, the Supreme Court said that it was the duty of the trial courts to “proactively elicit materials on mitigating circumstances while sentencing in death penalty cases”, and issued guidelines. Your report finds that trial courts imposed death sentences in 2022 in 98.3% death penalty cases without having any materials on mitigating circumstances of the accused and without any state-led evidence on the question of reform. Why do the courts fail to implement the judgement in the Manoj case?

After the decision in the case you refer to, where this has been specifically addressed, non-compliance [to the guidelines] has even more grave connotations. One of the core principles of our adjudicatory process is that district courts and high courts will follow the law laid down by the Supreme Court. By not complying with the requirements laid down in Manoj (as demonstrated by the findings in our 2022 report), it shows that the death penalty sentencing process is completely broken and the extent of judicial subjectivity is dangerous. One can only speculate as to why trial courts are not following the Supreme Court’s ruling in Manoj--are they not aware of it? Do the lawyers and the courts in the districts not have the capacity to give effect to it and are therefore ignoring it? None of those are good enough reasons to subvert the rule of law.

We need to understand that the constitutional validity of the death penalty in May 1980 was upheld on the premise that a certain process will be followed. For over 40 years, we have seen that process break down. The point the Supreme Court was making in 1980 was that the process of sentencing in death penalty cases must meet certain constitutional requirements. Perhaps it is time to ask the obvious question: Do we have a system that can administer the death penalty in a constitutionally acceptable manner?

In 2022, more than half of the death sentences imposed by trial courts were for sexual violence, which included 47 for rape with murder and five for child rape without murder. According to government data, between 2019 and 2021, more than 92,000 women and minor girls--more than 30,700 on average each year--were victims of rape. Why is sexual violence sentenced with the death penalty in India?

Given the extent of sexual and gender-based violence in our society, it would be fair to say that we have failed to find any effective solution that goes to root causes. I think the state and society cannot ignore the crisis we as a society face in terms of gender-based violence. We are all complicit and yet we seem to be able to do very little about it. In that context, the death penalty and harsher punishments as a response to sexual violence is a potent distraction.

The death penalty is used to suggest that sexual violence is taken with utmost seriousness, but experts who have studied gender-based violence in India will tell you that harsher punishments are an ineffective response (see here and here). Through various narratives, we are made to imagine sexual violence as something that the ‘dangerous stranger’ inflicts. However, there is clear evidence that both sexual violence against adult women and child sexual abuse are perpetrated to a very large extent by people known to the victims/survivors. The history of the death penalty world over shows that it is used to drive certain narratives and it is no different in India with the use of the death penalty in the context of sexual violence.

How do you view the Supreme Court’s inclination to explore a “humane” and less painful alternative to hanging as a means of execution? What “data”, as has been sought by the court, can be possibly provided here?

The conversation about ‘least painful method of execution’ the world over is really about us (the consumers of the death penalty) wanting to see lesser pain and sanitised executions. Somehow this idea that the lethal injection might be better than hanging is no longer defensible in light of the mounting evidence from the United States on botched executions using the lethal injection. With hanging itself, the Supreme Court in Deena (1983) said that executions had to be instantaneous and pain-free and that judicial hanging met those requirements. However, subsequent studies and accounts have shown that more often than not, judicial hanging causes a slow torturous death by asphyxiation rather than instantaneous death by breaking of the neck. It is an inescapable fact that all known methods of execution involve torture and this really comes down to a terrible question--how much torture are we willing to accept in our efforts to use the death penalty? Our courts have repeatedly said that the protection against torture is absolute and we invite great danger by chipping away at such non-derogable protections.

Is it acceptable that the death penalty be imposed selectively in terrorism and “national security” related crimes despite the Law Commission saying “..there is no valid penological justification for treating terrorism differently from other crimes..”?

The 262nd Law Commission Report on the Death Penalty has left behind a disturbing legacy. For almost the entirety of that report, the Law Commission makes arguments that the death penalty cannot be sustained under our Constitution any longer. And then suddenly at the very end makes an exception for terror-related offences. It clearly was a compromise to get a majority of the members to sign the report but quite honestly, I’d rather not have had such a report. There is no principled reasoning that the report offers for that kind of exceptionalism. In an otherwise brilliantly put together report, it was disappointing to see the political compromise at the very end of that report. Only time will show us the consequences of that burdensome legacy.

Niranaram Chetanram Chaudhary [misspelt as Narayan Chetanram Chaudhary in the inquiry report] was released in March 2023 after nearly three decades in prison, most of it as a death row prisoner, because he was a juvenile (12 years old) when the crime was committed. Would you consider this case to be an aberration in terms of processes not being followed properly or does it in ways represent problems in death row cases?

Narayan could have been imprisoned for a maximum of three years if our criminal justice system had noticed that he was a child in conflict with the law. Instead, he has spent over 28 years in prison; 25 of those on death row. It points to such large systemic failures. Beyond that, I don’t think we can wrap our heads around what has been snatched away from Narayan.

It raises such profound questions about the meaning of justice and freedom. I do not think wrongful prosecutions as a phenomenon in our criminal justice system has received any real attention (I do think Narayan’s is a case of wrongful prosecution, irrespective of his guilt, because he was wrongfully prosecuted as an adult and not as a child). Even in far more advanced criminal justice systems across the world, wrongful convictions are an inevitable reality. However, for a criminal justice system like ours with myriad crisis points, the scale and extent of wrongful convictions might just stun us.

In an opinion study Project 39A conducted with 60 former judges of the Supreme Court, there was significant agreement that manipulation and planting of evidence, prosecutorial misconduct, unacceptable standards of legal representation for the poor were all realities in our system. But for now, the challenge is to get stakeholders to even recognise wrongful convictions as a systemic issue that merits serious and urgent consideration.

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