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Death sentencing law in India needs a rethink

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The year 2022 exemplified the confusion roiling death penalty sentencing in India. Consider the following developments — trial courts handed out the largest number of death penalties in India in over two decades last year, even as the Supreme Court (SC) confirmed just two sentences.

Forty-two years after the death penalty sentencing law was laid down in Bachan Singh v. State of Punjab, the top court acknowledged gaps in 2022 and even called for a Constitution bench to plug these lacunae. These concerns arose after several trial courts overwhelmingly contradicted the law on death penalty sentencing by focusing only on the crime without considering the offender’s circumstances or ability to reform.

In May 2022, the SC attempted to provide a stop-gap measure by mandating trial courts to call for sentencing materials that provide comprehensive information about the offender. However, a month later, another bench of the top court called this decision “unrealistic”. While the SC confirmed death sentences only in two cases in 2022, it undercut its logic by sentencing these two people to death based only on the crime, without considering mitigating circumstances. Trial courts meted out 165 death sentences in 2022, the highest annual number since 2000. Most of these sentences were imposed without calling for sentencing materials relating to the offender’s circumstances. At the end of 2022, 539 persons were on death row, making it the highest death row population in India since 2004. It is evident by the SC’s admission that we can no longer be sure if the 539 people on death row were sentenced in accordance with the law.

While the Criminal Procedure Code (CrPC) 1973 established life imprisonment as the default punishment and required judges to give “special reasons” when choosing the death penalty, the guidance came from the Bachan Singh case in 1980. In deciding between life and death sentences, the Bachan Singh verdict mandated that judges consider aggravating and mitigating circumstances relating to the crime and the offender. An offender’s probability of reformation was highlighted as a key step, and it was held that a death sentence could be imposed in the “rarest of rare” cases only if the option of life imprisonment was “unquestionably foreclosed.”

To facilitate a meaningful hearing, CrPC divided a criminal trial into two stages: Guilt determination and sentencing. This aims to allow the defence team to present biographical information about their clients, which requires time and resources. However, questions relating to sufficient time between guilt determination and sentencing stage, the duty of the defence team and courts to collect the offender’s information, the duty of the prosecutor when seeking the death penalty, and how aggravating and mitigating circumstances must be evaluated by judges remain unclear. The SC’s referral to a Constitution bench is borne out of these concerns.

Despite this, trial courts continue to use the death penalty. In 122 of the 165 death sentences for which judgments were available, trial courts called for sentencing information in three death cases and in nearly 30% of these cases, people were sentenced to death either on the same day as their conviction or the next day.

While SC’s acquittal of five people in three death penalty cases last year raises serious questions about the legal system’s ability to administer the death penalty without putting innocent lives at risk, the remaining eight cases where the guilt was upheld demonstrate the flaws in the death penalty sentencing law.

In two of the eight cases where the death penalty was confirmed, the decision was exclusively based on the crime, turning the importance of reformation on its head. Even in the six cases where death sentences were commuted to life imprisonment, three different benches deciding these cases adopted three distinct approaches in overturning the death penalty.

We cannot find comfort in the fact that despite trial courts’ exaggerated use of the death penalty, the SC confirmed only two death sentences in 2022. Developments on the death penalty expose the inconsistent and judge-centric approaches to capital sentencing that the current state of the fuzzy law allows. This matter of life and death requires urgent prioritisation by the SC.

Neetika Vishwanath is director (sentencing), Project 39A, National Law University, Delhi

The views expressed are personal

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